In re Moore

• Decision Date: 19 December 2019
• Docket Number: NUMBER 13-19-00551-CV
• Parties: IN RE J. MICHAEL MOORE
• Court: Texas Court of Appeals

IN RE J. MICHAEL MOORE

NUMBER 13-19-00551-CV

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

December 19, 2019

On Petition for Writ of Mandamus, Prohibition, and Injunction.

MEMORANDUM OPINION

Before Justices Benavides, Longoria, and Perkes

Memorandum Opinion by Justice Benavides¹

Relator J. Michael Moore filed a petition for writ of mandamus, prohibition, and injunction in the above cause on October 24, 2019. Through this original proceeding, relator seeks (1) a writ of mandamus to compel the respondent, the Honorable Judge Fernando Mancias, to vacate his October 18, 2019 order striking relator's plea in intervention, (2) a writ of prohibition ordering and prohibiting the respondent from interfering with the jurisdiction of the assigned senior justice of the 93rd Judicial DistrictCourt, and (3) a writ of injunction prohibiting and enjoining real parties in interest Marco A. Cantu a/k/a Mark Cantu and Roxanne Cantu a/k/a Roxana Cantu "or any other parties in active concert with them" from filing any further lawsuits or otherwise initiating pleadings in any other court "concerning or related to the subject of these proceedings below for the purpose of forum shopping, or to avoid this Court's jurisdiction over any appeal in the proceedings below." We conditionally grant the petition for writ of mandamus and deny the petitions for writs of prohibition and injunction.

I. BACKGROUND

In their briefing, the parties have extensively discussed the lengthy history and convoluted facts that provide the backdrop to this original proceeding.² Here, we confine our recitation of the facts to those that are relevant and necessary to resolution of the issues presented.

The underlying proceedings arise from trial court cause number C-4003-19-B in the 93rd District Court of Hidalgo County, Texas. In the underlying proceedings, Cantu seeks the Rule 202 deposition of Ricardo Rodriguez. See TEX. R. CIV. P. 202 (governing depositions taken before an anticipated suit or to investigate a potential claim or suit). On October 8, 2019, relator filed a "Plea in Intervention and Motion to Transfer from Improper Court Pursuant to Rule 1.2.7 Hidalgo County Local Rules and Art. 52.01." Relator asserted that he was an interested party with a justiciable interest in the subject matter of the allegations in the suit because "he is one of the subjects of [Cantu's] request to initiate a criminal prosecution." Relator alleged, in relevant part, that Cantu had engaged in forumshopping and requested transfer of the case from the 93rd District Court to the 92nd District Court. That same day, relator filed a separate "Motion to Transfer from Improper Court Pursuant to Rule 1.2.7 Hidalgo County Local Rules." This motion sought transfer of the case from the 93rd District Court "back to the first filed court," the 92nd District Court, because the case "was improperly transferred" to the 93rd District Court in violation of Rule 1.1 of the Hidalgo County Local Rules. Relator argued that the Local Rules provided that: "[o]n being filed, a case shall be assigned randomly to the docket of one of the District Courts with civil jurisdiction," and "[o]nce assigned to a court, a case will remain on the docket of that court for all purposes unless transferred as provided by these rules." Relator contended that Cantu's "unlawful forum shopping" had resulted in the case's transfer to the 93rd District Court.

On October 9, 2019, the Honorable Mario Ramirez Jr., the Local Administrative Presiding Judge, signed an "Order of Referral and Recusal on Judge's Own Motion." The order stated that, after having "reviewed the Plea in Intervention and Motion to Transfer From Improper Court Pursuant to Rule 1.2.7 Hidalgo County Local Rules and Art. 52.0 and the Motion to Transfer From Improper Court Pursuant to Rule 1.2.7. Hidalgo County Local Rules," Judge Ramirez found it "necessary" to recuse himself. This order recused Judge Ramirez and "referred this cause" to the Presiding Judge of the Fifth Administrative Judicial Region "for assignment of a judge to preside in this cause."

On October 9, 2019, the Honorable Missy Medary, Presiding Judge of the Fifth Administrative Judicial Region, signed an "Order of Assignment." The order assigns J. Manuel Bañales, Senior Judge, to the 93rd District Court pursuant to section 74.056 of the government code. The order specifically provides that:

The judge is assigned to preside in Cause Number C-4003-19-B styled Marco Cantu, (Petitioner), J. Michael Moore, (Intervenor) vs. Hidalgo County District Attorney Ricardo Rodriguez (Respondent) for the limited purpose of determining the Motion to Transfer From Improper Court Pursuant to Rule 1.2.7 Hidalgo County Local Rules, Plea in Intervention and Motion to Strike Plea in Intervention and Motion for Sanctions and Response to Motion to Transfer.

On October 10, 2019, Cantu filed "Plaintiff's Objection to Appointment of Visiting Presiding Judge." On October 11, 2019, Judge Bañales signed an order setting a hearing on Cantu's objection to be held on October 24, 2019, "at the same date and time as the other motions."

On October 15, 2019, however, the Honorable Fernando Mancias, Presiding Judge of the 93rd District Court, signed an "Order Setting Hearing on Plaintiff's Motion to Strike Plea [in] Intervention and Motion for Sanctions." This hearing was set for October 18, 2019, at 3:00 p.m.

On October 17, 2019, Cantu filed "Plaintiff's Supplemental Objection to Appointment of Visiting Presiding Judge."

On Friday, October 18, 2019, at 10:09 a.m., relator filed a letter directed to Judge Mancias. The letter enclosed the Order of Assignment signed by Judge Medary assigning Judge Bañales to the case and quoted portions of the letter of assignment, including the specific matters for which Judge Bañales had been assigned. The letter informed Judge Mancias that Judge Bañales had set all pending motions, including Cantu's objection to his assignment, for hearing on October 24, 2019. The letter further stated:

On Tuesday, October 15, 2019, Marco A. Cantu obtained a setting on the same motions as that previously set by Presiding Judge Jose Manuel Bañales of the 93rd District Court in this case which are subject to this assignment, set by you for today at 3 p.m. The Order of Assignment by the Presiding Judge of the Fifth Administrative Region, Judge Missy Medary,commits exclusive jurisdiction of this case over Mr. Marco A. Cantu's motions until further order of the Administrative Presiding Judge.

Therefore, it is with all due respect that the undersigned Intervenor requests that this Court remove the hearing set in this matter at 3:00 o'clock p.m. today, October 18, 2019, as any order or action taken by the Court would be a nullity, since the Order of Assignment controls the hearing on the subject motions set for today.

By copy of this letter via e-file service, all parties are being notified of this action as indicated below.

On October 18, 2019, Judge Mancias proceeded with the scheduled hearing. Cantu appeared, but relator did not. Cantu noted that relator had filed "some kind of pleading saying that Judge Bañales had been ordered to do something, but . . . this is on my motion to strike their intervention and the Court set it and he had notice of it." Judge Mancias stated that he had received "an order from Judge Bañales where he sustained an objection to him being assigned to whatever case he was assigned to."³ Judge Mancias instructed the bailiff to call for relator, who did so "three times; no response."⁴After further discussions, both on and off the record, Judge Mancias verbally granted Cantu's motion to strike relator's intervention. That same day, Judge Mancias signed an order striking relator's plea in intervention.

On October 21, 2019, Judge Medary assigned the Honorable Rogelio Valdez to the case. The language of the order assigning Judge Valdez mirrors that of the assignment to Judge Bañales. It specifically provides that Judge Valdez is assigned to provide in the case for "the limited purpose" of determining the "Motion to Transfer From Improper Court Pursuant to Rule 1.2.7 Hidalgo County Local Rules, Plea in Intervention and Motion to Strike Plea in Intervention and Motion for Sanctions and Response to Motion to Transfer."

This original proceeding ensued. Relator asserts that the trial court erred by entering an order striking relator's plea in intervention "after having been removed as the Presiding Judge of the 93rd Judicial District Court from this case by Judge Medary" and relator lacks an adequate remedy by appeal to address this error. The Court requested that the real parties in interest—Marco A. Cantu a/k/a Mark Cantu and Roxanne Cantu a/k/a Roxana Cantu; Ricardo Rodriguez, the Hidalgo County District Attorney; and Juan L. Villescas, Assistant District Attorney; or any others whose interest would be directly affected by the relief sought, file a response to the petition for writ of mandamus. See TEX. R. APP. P. 52.2, 52.4, 52.8.

After requesting and receiving an extension of time, Cantu filed a "Reply to Petition for Writ of Mandamus." In his response, Cantu raises two arguments in opposition to relator's request for extraordinary relief. Cantu first asserts that "the relator merely tendered exhibits, without a brief," and further asserts that relator "did not comply with Section 3, Rule 52. 3 (d) (1) (3) (f) (g) (h) (i)." See TEX. R. APP. P. 52.3. Cantu's arguments concern the form and contents of a petition, including the appellate requirements pertaining to the statement of the case, issues presented, statement of facts, argument, and prayer. See id. Cantu's arguments are not supported by the record. Relator's petition, which is available for review on our website, contains argument and authority, and includes a statement of the case, the issues presented, a statement of facts, and a prayer for relief. While the petition does not include a separate section entitled "iss...