In re Gonzalez
| Decision Date | 25 June 2003 |
| Docket Number | No. 04-03-00364-CV.,No. 04-03-00183-CV.,04-03-00183-CV.,04-03-00364-CV. |
| Citation | 115 S.W.3d 36 |
| Parties | In re Annette GONZALEZ. In re Valerie Prescott. |
| Court | Texas Court of Appeals |
Eduardo Serna and Roberto Serna, Law Office of Eduardo Serna, Crystal City, for Appellant.
James B. Davis, James B. Davis, P.C., Carrizo Springs, for Appellee.
Sitting: CATHERINE STONE, Justice, PAUL W. GREEN, Justice, SARAH B. DUNCAN, Justice.
Opinion by: CATHERINE STONE, Justice.
Annette Gonzalez and Valerie Prescott each filed petitions for writ of mandamus seeking to set aside two different orders signed by the trial court.2 The primary issues in this consolidated proceeding are whether a constitutional county judge disqualified from serving on the case because he had previously performed work on the case may sign: (1) an order appointing a visiting judge to try the case; and (2) an order transferring the contested case from county court to district court pursuant to section 5(b) of the Texas Probate Code after the case has already been tried by the appointed visiting judge. Under the facts of this case, we hold that the disqualified judge could sign an order appointing a visiting judge to try the case. However, we further hold that the disqualified judge could not sign an order transferring the contested case from county court to district court. Therefore, we conditionally grant Annette Gonzalez's petition for writ of mandamus and deny Valerie Prescott's petition for writ of mandamus.
This case concerns probate proceedings arising from the death of Valgene William Lehmann, Jr. After Lehmann's death, his adult daughter, Valerie Prescott, initiated probate proceedings in the constitutional county court of Dimmit County. Prescott was named the temporary administratrix of the estate. Annette Gonzalez filed an application to determine heirship, claiming she was Lehmann's common law wife. The heirship application was filed in the Dimmit County constitutional county court. Acting through her attorney, James B. Davis, Prescott filed an original answer to the heirship application, denying that Gonzalez was Lehmann's wife.
The heirship application was set for trial before County Judge Charles Johnson on December 4, 2002. No court reporter was available, so the case could not be tried at that time, although a jury was selected and numerous witnesses were sworn in and placed under the rule. The parties agreed to reset the case to January 21, 2003. The parties recognized that in January 2003 Johnson would no longer be the county judge, and that James Davis's law partner, Francisco Ponce, would be the new county judge. The parties agreed that Ponce would be disqualified to serve as judge because he had actually done some work on the probate case. The parties further agreed that Charles Johnson should be appointed to serve as judge in the case and that he could try the case in January 2003.
On January 15, 2003, Judge Ponce signed an order appointing Judge Johnson to serve as judge in the case. The order recites that "the Court finds good cause exists" for the appointment of Judge Johnson, and that Johnson is to be compensated pursuant to section 26.026 of the Texas Government Code. When the case was called for trial on January 21, 2003, the parties agreed that Judge Johnson should call the regional administrative judge, David Peeples, to confirm his appointment. Although there is no reporter's record of the pre-trial conference or of the telephone conversation, all parties agree that: (1) the call was made; (2) Judge Peeples's office informed Judge Johnson that he was not eligible to serve as a visiting judge under the Government Code; and (3) the parties then agreed that Judge Johnson could serve as a special judge and preside over the case.
The trial began on January 21, and ultimately a verdict was reached finding that Gonzalez was the common law wife of Lehmann. After trial, but before a written judgment was signed, Prescott filed a Motion to Transfer the Contested Application to Determine Heirship Proceedings to the District Court of Dimmit County, Texas. Prescott's motion was filed at 11:45 a.m. on February 19, 2003. Five minutes later at 11:50 a.m., an order granting the transfer was signed by County Judge Ponce and was filed with the county clerk. It is this order that Gonzalez complains of in her mandamus petition. By contrast, Prescott seeks mandamus to set aside the earlier January 15 order appointing Johnson as a special judge.3
Because mandamus will issue only to "correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy by law," the relators must demonstrate that either: (1) the trial court could reasonably have reached only one decision concerning the resolution of certain factual issues or matters committed to the trial court's discretion; or (2) the trial court failed to analyze or apply the law correctly. See Walker v. Packer, 827 S.W.2d 833, 839-840 (Tex.1992).
Mandamus will issue to correct a void order of a trial court. Urbish v. 127th Judicial Dist. Court, 708 S.W.2d 429, 431 (Tex.1986); McGrew v. Heard, 779 S.W.2d 455, 457 (Tex.App.-Houston [1st Dist.] 1989, orig. proceeding). If an order challenged by writ of mandamus is void, the relator need not show that it lacks an adequate appellate remedy. In re Southwestern Bell Tel. Co., 35 S.W.3d 602, 605 (Tex.2000) (per curiam); In re Consol. Freightways, 75 S.W.3d 147, 151 (Tex. App.-San Antonio 2002, orig. proceeding).
Judges may be removed from a specific case because they are constitutionally disqualified. Article V, section 11 of the Texas Constitution provides:
No judge shall sit in any case wherein he may be interested, or where either of the parties may be connected with the judge, either by affinity or consanguinity, within such a degree as may be prescribed by law, or when he shall have been counsel in the case.
TEX. CONST. art. V, § 11. Disqualification of a judge may be raised at any time, even on appeal or in a collateral attack on the judgment. Zarate v. Sun Operating, Ltd., Inc., 40 S.W.3d 617, 621 (Tex.App.-San Antonio 2001, pet. denied). Once it is determined that a judge is constitutionally disqualified from sitting in a case, the judge is without authority to act and the judge's rulings are void. In re Union Pac. Res. Co., 969 S.W.2d 427, 428 (Tex.1998). When a judge "continues to sit in violation of a constitutional proscription," mandamus is available to compel the judge's mandatory disqualification without a showing that the relator lacks an adequate remedy by appeal. Id. The question here is whether Judge Ponce continued "to sit in violation of constitutional proscription" when he signed the order assigning Judge Johnson and when he signed the order transferring the case to district court.
Prescott contends that Judge Ponce's order appointing Judge Johnson is void "for lack of jurisdiction." She argues that a disqualified judge is without jurisdiction and that any order signed by a disqualified judge is void.4 See Gulf Mar. Warehouse Co. v. Towers, 858 S.W.2d 556, 559 (Tex. App.-Beaumont 1993, writ denied). Indeed, some courts, including this court, have stated broadly that a disqualified judge is "absolutely without jurisdiction" and that orders signed by a disqualified judge are void. See Zarate, 40 S.W.3d at 621; Gulf Mar. Warehouse Co., 858 S.W.2d at 559 (citing William W. Kilgarlin & Jennifer Bruch, Disqualification and Recusal of Judges, 17 St. Mary's L.J. 559, 601-02 (1986)). However, other cases either do not view the issue as one of a judge's jurisdiction or are not quite so sweeping in their language. See In re Union Pac. Res. Co., 969 S.W.2d at 428 (); Spigener v. Wallis, 80 S.W.3d 174, 179-80 (Tex.App.-Waco 2002, no pet.) ( that a constitutional disqualification deprives a trial judge of the authority to act). In Spigener v. Wallis, the court noted that while the Court of Criminal Appeals no longer characterizes a judge's authority to preside as a jurisdictional issue, the civil courts have not yet embraced the distinction between jurisdiction of a court and authority of a judge. Wallis, 80 S.W.3d at 179-80 n. 5.
Although not specifically stated, it appears that Gonzalez claims the appointment order was authorized because it did not involve the exercise of judicial discretion. Gonzalez contends that: (1) all parties agreed that Judge Ponce was disqualified; (2) Judge Ponce apparently recognized that he was disqualified as indicated by his order appointing another judge to hear the case; (3) all parties agreed that Judge Johnson should hear the case; and (4) there was no indication that Judge Johnson was in any way disqualified from hearing the case. Thus, under these unique circumstances, Gonzalez contends the order appointing Judge Johnson is not void. In support of this contention Gonzalez relies on Chilicote Land Co. v. Houston Citizens Bank & Trust Co., 525 S.W.2d 941, 943 (Tex.Civ. App.-El Paso 1975, no writ) and Sun Exploration & Production Co. v. Jackson, 729 S.W.2d 310, 312 (Tex.App.-Houston [1st Dist.] 1987), rev'd on other grounds, 783 S.W.2d 202 (Tex.1989). Both of these cases recognize that when a judge is disqualified from acting on a case, the judge is incapacitated from taking any action in the case which requires the exercise of judicial discretion. Gonzalez thus contends that since no judicial discretion was involved in signing the order of appointment, it is a valid order.
Gonzalez's argument is supported by the cases she cites, and by the Supreme Court's opinion in Buckholts Independent School District v. Glaser, 632 S.W.2d 146, 148 (Tex.1982). Her argument is also supported by...
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