In re Murray
| Decision Date | 05 November 2008 |
| Docket Number | No. 10-08-00259-CV.,10-08-00259-CV. |
| Citation | 268 S.W.3d 279 |
| Parties | In re Donna MURRAY. |
| Court | Texas Court of Appeals |
George H. Allen, Waco, for Appellee/Respondent.
Kent Richardson, Waco, for real party in interest.
Joseph D. Hughes, Office of the Attorney General, Austin, for State.
Bob L. Warneke, Jr., State Commission on Judicial Conduct, Austin, for Amicus Curiae.
Before Justice VANCE, Justice REYNA, and Justice MAZZANT.*
Donna Murray seeks a writ of mandamus compelling Respondent, the Honorable George Allen, assigned judge to the 13th Judicial District Court of Navarro County, to dismiss or abate a lawsuit seeking her removal as justice of the peace and to vacate an order suspending her without pay. We deny the relief requested.
Murray is Justice of the Peace, Precinct 3, in Navarro County. John Jackson, elected judge of the 13th Judicial District Court of Navarro County, and Connie Mayfield, another justice of the peace in Navarro County, filed a complaint with the State Commission on Judicial Conduct,1 alleging that Murray had committed several acts of official misconduct and incompetence. After Murray was indicted for possession of methamphetamine, the Commission entered an order suspending Murray with pay.
The State, acting through and on the relation of Jackson and Mayfield, subsequently filed a petition in district court requesting Murray's removal on the same grounds as those alleged in their administrative complaint. Jackson recused himself and Respondent was assigned to the case. The district attorney's office also moved for recusal in light of Murray's pending drug charge and requested that Respondent appoint the Criminal Justice Division of the Attorney General's Office as special prosecutor. Respondent granted the motion.
Respondent further suspended Murray without pay, after which Murray filed three separate motions. In a motion to show authority, she argued that the assistant attorney general assigned to the case had no authority to act as attorney pro tem. In a motion to abate, she contended that, because a complaint had been filed with the Commission first, the Commission has primary jurisdiction over the case and the lawsuit should be abated pending a final decision by the Commission. In a motion to dismiss, Murray sought dismissal on jurisdictional grounds. Respondent denied these motions.
In her petition for mandamus, Murray argues that: (1) Respondent should have granted either her motion to dismiss or her motion to abate because the Commission possesses primary jurisdiction over the removal proceedings (issues one and two); and (2) Respondent should have granted her motion to show authority because the Attorney General lacks authority to act (issue three).2
Generally, mandamus relief is available only to correct a clear abuse of discretion when there is no adequate remedy by appeal. In re Bexar County Criminal Dist. Attorney's Office, 224 S.W.3d 182, 185 (Tex.2007) ; In re Tex. Dep't of Family Protective Servs., 210 S.W.3d 609, 612 (Tex.2006) . Mandamus is also available where: (1) the order being challenged in a mandamus proceeding is void; or (2) jurisdictional conflicts exist between a trial court and an administrative agency. In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (per curiam) (void order); In re Keeling, 227 S.W.3d 391, 395 (Tex.App.-Waco 2007, orig. proceeding) (same); In re Entergy Corp., 142 S.W.3d 316, 321-22, 324 (Tex.2004) (jurisdictional conflicts); In re Luby's Cafeterias, 979 S.W.2d 813, 816-18 (Tex.App.-Houston [14th Dist.] 1998, orig. proceeding) (same).
Murray's first and second issues are based on the theory that Respondent was required to either dismiss or abate the lawsuit because the Commission possesses primary jurisdiction over the removal proceedings, thereby depriving Respondent of authority to act and making void his order suspending Murray without pay.
An agency can have exclusive or primary jurisdiction.3 See Subaru of Am. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 221 (Tex.2002). Exclusive jurisdiction gives the agency "sole authority to make an initial determination in a dispute." Id. Exclusive jurisdiction applies when a pervasive regulatory scheme is the exclusive means of remedying the problem addressed. See id. If an agency possesses exclusive jurisdiction, the trial court must dismiss the suit. Id.
Primary jurisdiction "allocate[s] power between courts and agencies when both have authority to make initial determinations in a dispute." Id. Primary jurisdiction applies where: (1) an agency is typically staffed with experts trained in handling the complex problems in the agency's purview; and (2) great benefit is derived from an agency's uniformly interpreting its laws, rules, and regulations, whereas courts and juries may reach different results under similar fact situations. Id. If an agency possesses primary jurisdiction, the trial court should abate the suit and "suspend finally adjudicating the claim until the agency has an opportunity to act on the matter." Id.
Whether an agency has exclusive or primary jurisdiction is a question of law that we review de novo. See id. at 222.
Under Article V of the Texas Constitution, both the Commission and the district court possess authority to make initial determinations in disputes involving the removal of a justice of the peace. Section 1-a gives the Commission authority to recommend removal. See TEX. CONST. art. V, § 1-a(6)(A); see also TEX. GOV'T CODE ANN. § 33.002(a) (Vernon 2004) (); In re Rose, 144 S.W.3d 661, 672 (Tex.Rev. Trib.2004) (); TEX.R. REM'L/RET. JUDG. 1(b) (West 2008) ("`Judge' means ... any Justice of the Peace"). Section 24 gives the district court authority to order removal. See TEX. CONST. art. V, § 24 (). As these two provisions make clear, the Commission does not possess exclusive jurisdiction over the removal of a justice of the peace, but the primary-jurisdiction doctrine potentially applies. See Subaru, 84 S.W.3d at 221. For this reason, dismissal would not be appropriate. Id. Abatement would be the proper remedy if primary jurisdiction applies. Id.
Citing section 1-a(13), In re Carrillo, 542 S.W.2d 105 (Tex.1976), and In re Lowery, 999 S.W.2d 639 (Tex.Rev. Trib.1998), the State suggests that the Commission does not have primary jurisdiction because both a removal proceeding before the Commission and a removal proceeding before the district court may be pursued simultaneously. The Commission's amicus brief supports this position.
Section 1-a(13) provides that removal by the Commission is "alternative to and cumulative of" other methods of removal provided in the Constitution. TEX. CONST. art. V, § 1-a(13). In Carrillo, the Commission initiated removal proceedings against Carrillo, a district judge, pursuant to section 1-a. See Carrillo, 542 S.W.2d at 106. The Commission appointed a master to hear evidence and file a report. Id. A pending impeachment proceeding in the Texas Senate was postponed to await the master's report. Id. at 107. After the master found Carrillo guilty of eleven of twelve charges, the Senate voted to remove Carrillo from office. Id. at 106-07. The Commission subsequently filed its own findings with the Supreme Court and recommended removal. Id. at 106. Carrillo filed a petition to reject this recommendation, alleging in part that the case was moot because of the impeachment proceeding. Id. The Supreme Court disagreed because the Constitution provides several methods for removal of district judges, none of which is an "exclusive remedy." Id. at 108. "[M]ore than one method may be pursued concurrently." Id.
In Lowery, Justice of the Peace Lowery challenged the Commission's recommendation of removal under section 1-a, arguing that section 24 "specifically includes justices of the peace, it is a more specific provision, taking precedence over the more general provisions of § 1-a." Lowery, 999 S.W.2d at 649. The Review Tribunal rejected this contention:
Although the Constitution provides multiple methods for the removal of a judge, none is an exclusive remedy and more than one may be pursued concurrently. In the instant matter, the proceedings to remove Respondent were conducted under art. V, § 1-a. Subsection 13 specifically provides that § 1-a is an alternative to, and cumulative of, the methods of removal of persons holding an office named in Paragraph A of Subsection 6. In turn, Paragraph A of Subsection 6 authorizes the removal of any justice or judge of the courts established in art. V, § 1. This latter provision clearly encompasses justices of the peace.
Id. at 649-50 (emphasis added).
Murray attempts to distinguish Lowery on grounds that "Lowery attempted to avoid the Commission by arguing it should have been a civil removal action." This distinction does not render Lowery inapplicable. The Review Tribunal's ruling suggests that proceedings would have been proper under either section 24 or section 1-a. See id. Its reasoning is relevant to whether different proceedings may occur simultaneously.
As for Carrillo, Murray argues that the Senate's postponement of its proceeding to await the master's report demonstrates that two proceedings cannot be pursued simultaneously. See Carrillo, 542 S.W.2d at 107. However, the Commission made its recommendation of removal after the Senate voted to remove Carrillo. Id. at 106-07. Proceedings before the Commission were ongoing at the time the Senate proceeded with the impeachment process.
Murray next contends that Igal v. Brightstar Info. Tech. Group, Inc., 250...
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