O'Connor v. Smith

815 S.W.2d 338, 1991 Tex. App. LEXIS 2125, 1991 WL 160451
CourtCourt of Appeals of Texas
DecidedAugust 19, 1991
Docket01-91-00461-CV
StatusPublished
Cited by1 cases

This text of 815 S.W.2d 338 (O'Connor v. Smith) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
O'Connor v. Smith, 815 S.W.2d 338, 1991 Tex. App. LEXIS 2125, 1991 WL 160451 (Tex. Ct. App. 1991).

Opinions

OPINION

WILSON, Justice.

Relator requests that we order the Honorable Bradley Smith, sitting as a visiting judge to the 234th Judicial District of Harris County, to vacate all orders entered in the trial court after his plenary power in the case at bar expired on October 4, 1989. We granted relator’s motion for leave to file and set the case for argument on June 26, 1991. We now withdraw our order granting leave to file as improvidently granted and overrule the motion.

On July 11,1989, after a jury trial, Judge Smith entered judgment in favor of plaintiffs, Sam Houston Medical Hospital, Inc. d/b/a Sam Houston Memorial Hospital and Spring Oaks, Ltd. (collectively “Sam Houston”), the real parties in interest, against defendant, Dr. William E. O’Connor, the relator, for damages resulting from an unpaid loan and breach of a lease. O’Connor appealed but did not supersede the judgment. Sam Houston began post-judgment discovery under the provisions of Tex. R.Civ.P. 621a.

On December 14, 1989, Judge Smith, continuing to sit during the post-judgment discovery phase pursuant to the same order of assignment under which he began the case, entered an order requiring O’Connor to respond to Sam Houston’s deposition on written questions by December 31 of that year. Over the next several months, Judge Smith found O’Connor’s responses to the discovery to be “inadequate and in bad faith” and twice ordered him to respond to discovery in a “full and forthright manner,” entering orders to that effect on February 2, 1990, and March 26, 1990. The second order sanctioned O’Connor $10,200 for his failure to comply with the first order. On June 14, 1990, and again on October 25, 1990, Judge Smith signed turnover orders in the case.

Following the last order, O’Connor for the first time filed a “motion to vacate and set aside orders,” contending that Judge Smith had no authority to continue to act in the case. Relator’s basic claim is that Smith’s plenary power had expired when the appeal was perfected on October 4, 1989.1 Relator claims Judge Smith’s au[340]*340thority to act as a visiting judge under his order of assignment had also expired as a consequence of his having lost plenary power and the orders entered in the Rule 621a matters thus were void and should be set aside.

Our holding in this case depends on the rather unique relation to the loss of plenary power of Tex.R.Civ.P. 621a, which states in relevant part:

At any time after rendition of judgment, and so long as said judgment has not been suspended by a supersedeas bond or by order of a proper court ... the successful party may, for the purpose of obtaining information to aid in the enforcement of such judgment, initiate and maintain in the trial court in the same suit in which said judgment was rendered any discovery proceeding authorized by these rules for pre-trial matters .... Judicial supervision of such discovery proceedings after judgment shall be the same as that provided by law or these rules for pre-trial discovery and proceedings insofar as applicable.

It is axiomatic that a district judge has certain powers as defined by the Constitution, statutes, rules, and common law of the State of Texas. Rule 621a is but one of a multitude of grants of specific authority that forms the framework of a district court’s jurisdiction.

It is long established, and unchallenged here, that the loss of plenary power of a district court judge to act in a particular case does not divest that same judge of jurisdiction within the parameters of rule 621a to hear post-judgment discovery matters in the same case that may extend for many years after judgment. Loss of plenary power divests the district judge of jurisdiction, but rule 621a is a specific saving grant of limited authority for the judge to continue hearing matters in the same cause relevant to enforcement of the court’s judgment. See generally Arndt v. Farris, 633 S.W.2d 497 (Tex.1982).2

Given the unchallenged right of the district court judge to hear Rule 621a matters, what then is the authority of a visiting judge to hear such matters when sitting for the duly commissioned judge of a particular court? We hold as fundamental to our opinion that any challenge to a visiting judge’s authority to hear rule 621a matters could not be derived from his loss of plenary power, but, to succeed, such a challenge must be grounded in some other good and sufficient reason(s) independent of that loss.

If a district judge has the authority to act in rule 621a matters notwithstanding his loss of plenary power, then it would seem logical that a visiting judge sitting for the regular district judge, if an equal, would have the identical power, unless the authority of the visiting judge were somehow otherwise limited or compromised by law. We believe this is the correct direction of the appropriate inquiry in this case. Is there a reason in law that supports relator’s position, independent of the fact that Judge Smith had lost his plenary power?

The question of whether a visiting judge has power equal to that of the judge for whom he substitutes is resolved by Tex. Gov’t Code Ann. § 74.059 (Vernon Supp. 1991), which states, “A judge assigned under the provisions of this chapter has all the powers of the judge of the court to which he is assigned.” It is not challenged that Judge Smith was assigned to the 234th District Court under the Court Administration Act, Tex.Gov’t Code Ann. Chapter 74. (Vernon Supp.1991).

We conclude as an exercise of simple logic that if a district judge can pass on Rule 621a matters after the loss of plenary power, and if a visiting judge is an equal in power to the judge for whom he substitutes, then likewise, the visiting judge can pass on Rule 621a matters after the loss of plenary power. Further, given equality between a regularly sitting district judge and his assigned substitute, it would necessar[341]*341ily follow that a presiding judge could assign a visiting judge to do whatever a district judge can legally do. Both conclusions presume the absence of any other reason in law that would in some manner limit the actions of the visiting judge.

Relator bases his challenge to the authority of the visiting judge on (1) his interpretation of Tex.R.Civ.P. 621a and 329b; (2) the language of the order of assignment appointing Judge Smith to the 234th district court; and (3) case authority supporting the principle that a visiting judge’s authority extends only to the limit of his plenary power. We find that none of the suggested authority supports relator’s position.

Tex.R.Civ.P. 621a, Discovery and Enforcement of Judgment

Relator argues that rule 621a gives only the trial court and not the visiting judge power over post-judgment discovery. This interpretation ignores the plain language of the rule as well as the equality of power between the regular judge and the visiting judge. Tex.Gov’t Code Ann. § 74.-059(a).

The language of Rule 621a indicates that post-judgment discovery is part of the same suit in which the judgment is rendered. Therefore, Rule 621a, considered in conjunction with Judge Smith’s assignment giving him the authority to pass on “all other matters growing out of the case,” authorizes Judge Smith to preside over post-judgment discovery and enforcement proceedings.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

O'Connor v. Smith
815 S.W.2d 338 (Court of Appeals of Texas, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
815 S.W.2d 338, 1991 Tex. App. LEXIS 2125, 1991 WL 160451, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oconnor-v-smith-texapp-1991.