Beard v. Beard

Decision Date18 April 2001
Docket NumberNo. 10-98-357-CV,10-98-357-CV
Citation49 S.W.3d 40
Parties(Tex.App.-Waco 2001) BARBARA KAY BLAKE BEARD, Appellant v. BRAMLET FRANK BEARD, Appellee
CourtTexas Court of Appeals

Before Chief Justice Davis, Justice Vance, and Justice Gray


DAVIS, Chief Justice

Barbara Kay Blake Beard appeals a divorce decree dissolving the marriage between Bramlet Frank Beard and herself. Barbara presents sixteen issues in which she challenges: the authority of the judge assigned under chapter 74 of the Government Code to render judgment after an extended, post-trial hospitalization; the sufficiency of the evidence to support the court's findings of fact and conclusions of law; the court's failure to make amended or additional findings of fact and conclusions of law; the court's deferral until after trial of a ruling on her motions to strike an amended pleading filed by Bramlet less than seven days before trial and to exclude evidence relevant only to claims asserted for the first time in this amended pleading; the classification of certain of the parties' assets; the reimbursements among the community and separate estates; the division of the community estate; and the appointment of a receiver to sell the parties' residence "to the highest bidder."


Barbara's first issue asserts that the original decree signed by Judge Kenneth Douglas in this case is void because his assignment was superceded and terminated by intervening assignments of other judges to the case after he was hospitalized. Her second issue claims that any actions Judge Douglas took after she filed a recusal motion are void because she timely objected to his "reassignment" to the case.

According to the record, the presiding judge of the Third Administrative Judicial Region, B. B. Schraub, appointed Judge Douglas to hear the Beard divorce case after the elected judge recused himself. The assignment order provides in pertinent part:




Pursuant to Section 74.056, Texas Government Code

On the: 14th day of: October, 19: 97


SENIOR Judge of the: 13TH District Court.

was assigned to the: 74TH District Court of: McLENNAN County, Texas. RE: Cause Number 97-1973-3 - IN THE MATTER OF THE MARRIAGE OF BARBARA BEARD and BRAMLET BEARD and any other matter coming before the court while sitting on assignment in this cause.

This assignment will begin on the: 14TH day of: October, 19:97 and will continue for the period of time that may be deemed necessary for the assigned Judge to complete trial of any case or cases begun during this period, and to pass on motions for new trial and all other matters growing out of cases tried by the Judge herein assigned during this period.

After this assignment, the parties proceeded to trial before the court in November 1997. At the conclusion of the trial, Judge Douglas orally granted a divorce but postponed the classification of the parties' assets and division of the community estate.

Judge Douglas entered a hospital on February 18, 1998. He remained hospitalized until August 1998. Judge Schraub assigned Judge James F. Clawson to the Beard case on July 7, 1998. Bramlet filed an objection to Judge Clawson's assignment. See Tex. Gov't Code Ann. § 74.053(b) (Vernon 1998). Thus, Judge Clawson was automatically disqualified and could not hear the Beard case. See In re Perritt, 992 S.W.2d 444, 446 (Tex. 1999) (orig. proceeding); Tex. Gov't Code Ann. § 74.053(b). Accordingly, Judge Schraub assigned Judge Joe B. Dibrell, Jr. to the case on August 11, 1998.

In September 1998, the parties received a decree signed by Judge Douglas. The decree recites on its face that it was "signed on April ____, 1998." Under Rule of Civil Procedure 306a(2), "If the date of signing is not recited in the judgment or order, it may be shown in the record by a certificate of the judge or otherwise; provided however, that the absence of a showing of the date in the record shall not invalidate any judgment or order." Tex. R. Civ. P. 306a(2). Although Judge Douglas has not filed a certificate reciting the date of signing, the parties agree that he signed the decree on September 15, 1998, which is the date of the letter by which the judge advised the parties of the filing of the judgment. We accept this as correct for purposes of this appeal. See Tex. R. App. P. 38.1(f).

Scope of Authority

An assigned judge's authority depends upon a valid assignment by the presiding judge. See In re Nash, 13 S.W.2d 894, 899 (Tex. App.--Beaumont 2000, orig. proceeding). The scope and extent of that authority depends on the terms and conditions of the assignment. An assigned judge sits in all other respects as the judge of the court to which he is assigned. See Tex. Gov't Code Ann. § 74.059 (Vernon 1998); In re PG & E Reata Energy, L.P., 4 S.W.3d 897, 900 (Tex. App.--Corpus Christi 1999, orig. proceeding). A judge assigned to a district or statutory county court may hear and determine a matter pending in any district or statutory court in the county. See Tex. Gov't Code Ann. § 74.094(a) (Vernon Supp. 2001).

Other Cases

Barbara contends on appeal that the judgment was signed "at a point in time when Judge Douglas was no longer the judge assigned to this case." Citing Starnes v. Chapman and Roberts v. Ernst, she says that "[o]nce the assignment of an assigned judge has ended and another judge has been assigned to preside over and hear the case, the Judge who was previously assigned has no authority to act on any matter relating to the case." Starnes, 793 S.W.2d 104 (Tex. App.--Dallas 1990, orig. proceeding); Roberts, 668 S.W.2d 843 (Tex. App.--Houston [1st Dist.] 1984, orig. proceeding). Because each case is distinguishable, we disagree with her conclusion.1

Starnes v. Chapman

In Starnes, Judge Ryan was assigned to hear cause number 86-7704-I in the 162nd District Court in Dallas. According to the Fifth Court of Appeals, the assignment "to cause No. 86-7704-I was to continue for a period of time as may be necessary for Judge Ryan to complete trial of the case and to pass on motions for new trial and all other matters growing out of the case." Starnes, 793 S.W.2d at 106. Judge Ryan granted a summary judgment on some claims and severed other claims into causes 89-6582-I and 89-10016-I. Another judge, Judge Wright, was assigned to hear the severed cases, but he was objected to, preventing his hearing those cases. Judge Ryan was then assigned to hear the severed causes, and he was objected to. After the summary judgment was reversed, he was assigned to hear cause number 86-7704-I on remand but was objected to in that case as well. The presiding judge of the administrative region who had made all these assignments overruled the objections to Judge Ryan and reassigned him to all three cases.

In conditionally granting a writ of mandamus, the Dallas Court held that under the terms of his assignment order Judge Ryan's assignment to the original cause expired when the time periods for filing and ruling on motions for new trial expired and appeal was perfected. See Starnes, 793 S.W.2d at 106. The court further held that Judge Ryan was without authority to hear the remanded case unless reassigned. Id. (citing Roberts, 668 S.W.2d at 846).

As to the severed cases, the court held, "[O]ur reversal of the [summary judgment] did not reinvest Judge Ryan with authority over the severed causes of action by virtue of his original assignment . . . ." Id. at 107. Although the court stated that the "intervening assignment of [Judge Wright] to those cases superseded [the] assignment [of] Judge Ryan and terminated Judge Ryan's authority," it held that Judge Ryan's authority over the severed cases terminated when they were severed. Id. Because he was thereafter reassigned, the court found the objection to that assignment to be valid.2 Id.

Roberts v. Ernst

In Roberts, the First Court of Appeals was confronted with a situation in which Judge Dickerson, a sitting judge, was assigned to another district court for one week and for such time thereafter as necessary to complete trial of any case begun during that week "and to pass on all motions for new trial and all of the matters growing out of cases tried by the judge herein assigned during this period." Roberts, 668 S.W.2d at 844. Judge Dickerson conducted the trial, then granted a motion for new trial. Two months later, he vacated an order granting a continuance that another assigned judge had granted and ordered a change of venue. Two months after that, one of the regular judges of that county vacated the transfer order and denied the motion to change venue.

The First Court noted that the assignment was for a one-week period and to continue after that as was necessary to complete trial in any case begun during that week and "to pass on all motions for new trial and all matters growing out of cases tried." Id. at 846. Thus, it construed his assignment as requiring him to proceed to trial on all cases set on his docket and to rule on all issues that arose during the course of a trial. See id. The court held that, because of the terms of his assignment order, when Judge Dickerson granted the new trial his assignment and his authority ceased. Id. It is true that the court also held that a later assignment of another judge superceded Judge Dickerson's assignment, but that holding was unnecessary to the decision as the court had already determined that his assignment was completed and his authority had ceased. Id.

O'Connor v. Lykos

In O'Connor v. Lykos, the presiding judge assigned Judge Lykos to the 309th District Court for one week and thereafter "as...

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