In re Hourani
| Decision Date | 31 May 2000 |
| Docket Number | No. 14-00-00325-CV,14-00-00325-CV |
| Citation | 20 S.W.3d 819 |
| Parties | <!--20 S.W.3d 819 (Tex.App.-Houston 2000) IN RE ELIE HOURANI AND DIANA ELMAS, Relators COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON |
| Court | Texas Court of Appeals |
John C. Wynne of Houston, for appellants.
Scott D. Cunningham, Michael J. Stanley of Houston, for appellees.
Panel consists of Justices Amidei, Anderson and Frost.
In this mandamus proceeding, we interpret and apply section 74.053 of the Texas Government Code, which governs a litigant's right to object to assigned judges, commonly referred to as "visiting judges." At issue is whether litigants who become parties after a visiting judge begins to preside in the case have a right to object under this statutory provision. 1
In April 1999, Value Recovery Group ("VRG") filed suit against Monzer Hourani and numerous other parties. VRG named the relators, Elie Hourani and Diana Elmas, as defendants, but failed to obtain service of process on them after filing suit. Before relators were properly before the court as parties, the administrative judge assigned a visiting judge to the case. The visiting judge presided over various pretrial matters for nearly eight months. 2 Once the relators were served with process in the suit, they attempted to object to the visiting judge under section 74.053 of the Texas Government Code. In January 2000, the sitting judge attempted to set a new deadline for a "timely" section 74.053 motion to remove the visiting judge. The relators met that deadline, but the visiting judge refused to remove himself from the case. He found their objection untimely. The relators filed a petition for writ of mandamus in this court. See TEX. GOV'T. CODE ANN. 22.221 (Vernon Supp. 2000); see also TEX. R. APP. P. 52.
The relators claim that although the litigation was already underway, they were entitled to strike the visiting judge under section 74.053. They argue their objection was timely because it was asserted during the interval between the time they became parties and the time the visiting judge next held a hearing or ruled and because it was asserted within the deadline set by the administrative judge. The relators contend the visiting judge had no discretion and was required to step aside once they asserted their timely objection, and by refusing to do so, he refused to perform a ministerial duty imposed by law. The relators seek a writ of mandamus compelling the visiting judge to remove himself from the case and to vacate all orders he entered after they presented their objection.
Concurrently with the filing of their petition for writ of mandamus, the relators filed a motion for temporary relief in this court. On April 4, 2000, we entered an order staying all proceedings in the trial court pending our ruling on the petition for writ of mandamus. We now deny the petition and lift the stay.
Generally, mandamus relief is available if the trial court violates a duty imposed by law or otherwise clearly abuses its discretion when there is no adequate remedy at law. See Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992); In re Living Centers of America, Inc., 10 S.W.3d 1, 3 (Tex. App.--Houston [14th Dist.] 1999, no writ). When a party files a timely objection to an assigned judge under section 74.053, removal of the assigned judge is mandatory. See Dunn v. Street, 938 S.W.2d 33, 34 (Tex. 1997); Flores v. Banner, 932 S.W.2d 500, 501 (Tex. 1996). If the assigned judge refuses to remove himself after a party files a timely objection under section 74.053, that judge's subsequent orders are void and the objecting party is entitled to mandamus relief without a showing that the party lacks an adequate remedy by appeal. See Mitchell Energy Corp. v. Ashworth, 943 S.W.2d 436, 437 (Tex. 1997); Flores, 932 S.W.2d at 501.
The statutory scheme of the Court Administration Act sets the context for interpretation of section 74.053:
When interpreting a statute, we "consider the entire act, its nature and object, and the consequences that would follow from each construction." Sharp v House of Lloyd, Inc., 815 S.W.2d 245, 249 (Tex. 1991). "We must reject interpretations of a statute that defeat the purpose of the legislation so long as another reasonable interpretation exists." Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 662 (Tex. 1996).
Atascosa County v. Atascosa County Appraisal Dist., 990 S.W.2d 255, 258 (Tex. 1999) (). In construing a statute, we focus on the legislature's intent and endeavor to glean it from the plain meaning of the words chosen. See, e.g., Surgitek, Bristol-Myers Corp. v. Abel, 997 S.W.2d 598, 602 (Tex. 1999). Regardless of whether the statutory language is ambiguous on its face, the Code Construction Act allows a reviewing court to consider the object sought to be attained and the consequences of a particular construction. See TEX. GOV'T CODE ANN. 311.023 (Vernon 1998). In interpreting a statute, we presume that provisions relating to the same subject were intended to be consistent and to operate in harmony. See Moses v. Fort Worth Indep. School Dist., 977 S.W.2d 851, 853 (Tex. App.--Fort Worth 1998, no writ).
Section 74.053 of the Texas Government Code, entitled "Objection to Assigned Judge," states:
(a) When a judge is assigned under this chapter the presiding judge shall, if it is reasonable and practicable and if time permits, give notice of the assignment to each attorney representing a party to the case that is to be heard in whole or part by the assigned judge.
(b) If a party to a civil case files a timely objection to the assignment, the judge shall not hear the case. Except as provided by Subsection (d), each party to the case is only entitled to one objection under this section for that case.
(c) An objection under this section must be filed before the first hearing or trial, including pretrial hearings, over which the assigned judge is to preside.
(d) A former judge or justice who was not a retired judge may not sit in a case if either party objects to the judge or justice.
TEX. GOV'T CODE ANN. 74.053 (Vernon 1998) (emphasis added).
Section 74.053 is part of a broad statutory scheme for the orderly administration of courts. While the cases speak loosely in terms of a party's right to object, 3 what is actually at issue is the carefully limited opportunity to remove undesirable visiting judges without stating or proving any reason. The limits section 74.053 imposes were designed to give precedence to court administration and to restrict attempts at forum shopping that inevitably result when litigants are given even a small measure of control over determining who will hear their case.
Subsection (b) of the statute allows a party to make one objection to an assigned judge. Subsection (c) mandates that any objection under the statute must be made before proceedings begin. Subsection (d) allows unlimited objections to an assigned former judge who was not a retired judge.
In 1987, the 70th Legislature was concerned about the parties' "unfettered right to object to the assignment of a visiting judge." State v. Preslar, 751 S.W.2d 477, 481 (Tex. 1988). In Preslar, the Texas Supreme Court thoroughly discusses enactment of the amendment limiting parties to one objection. Apparently, the legislature determined that merely limiting the time for objection left too much room for disruption in the litigation process. The legislature considered competing bills, one eliminating the objection and one amending the law to further limit objections to one. 751 S.W.2d at 481. The legislature ultimately opted for the latter course and implemented the current version of the statute to further limit objections. See generally Preslar, 751 S.W.2d at 480-482; compare with TEX. GOV'T CODE ANN. 74.053 (Vernon 1988).
In 1991, the legislature again amended section 74.053. Again, the legislature carefully left in place the limits on objections to sitting and retired judges. See Mitchell Energy Corp. v. Ashworth, 943 S.W.2d 436, 440 (Tex. 1997) (). 4
Subsection (d) resulted from an uproar about visiting judges sitting on cases after voters had expressly rejected them at the polls. See id. That subsection effectively removed the limits on the time and number of objections to former judges who were not retired when they left office. Id. Objections to sitting and retired judges, however, remained as limited as before. Thus, the legislature clearly intended to continue limiting objections to sitting and retired judges to one timely objection.
The conditions of section 74.053(b) must be fulfilled in order to make an objection under the statute. If no party objects to the visiting judge, it does not matter whether a party could not object either (1) because it did not get notice of the assignment, (2) because it already objected to a visiting judge, or (3) because it was not a party at the time the objection could be asserted.
The word "if" in both subsections (a) and (b) indicate contingencies. If the presiding judge decides to inform the parties of the assignment, she may do so. If a party files a timely objection, it then has a right to an order removing the visiting judge. Subsection (c) leaves no doubt that the objection under subsection (b) necessary to trigger a right to removal may only be made before the visiting judge takes action on the case. The window of opportunity terminates when the first hearing or trial "over which the assigned judge is to preside" begins. TEX. GOV'T CODE ANN. 74.053(c) (emphasis added); see also Perkins v. Groff, 936 S.W.2d 661, 666 (Tex....
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