Mitchell Energy Corp. v. Ashworth, 96-0967

• Citation: 943 S.W.2d 436
• Decision Date: 18 April 1997
• Docket Number: No. 96-0967,96-0967
• Parties: 40 Tex. Sup. Ct. J. 501 MITCHELL ENERGY CORPORATION, Relator, v. Honorable Clyde R. ASHWORTH, and the Honorable Catherine Adamski Gant, Respondents.
• Court: Supreme Court of Texas

Page 436

943 S.W.2d 436

40 Tex. Sup. Ct. J. 501

MITCHELL ENERGY CORPORATION, Relator, v. Honorable Clyde R. ASHWORTH, and the Honorable Catherine

Adamski Gant, Respondents.

No. 96-0967.

Supreme Court of Texas.

Argued Feb. 25, 1997.

Decided April 18, 1997.

Thomas W. Luce, III, R. Doak Bishop, Dallas, Michael S. Truesdale, Austin, Jack O'Neill, Houston, H. Carter Burdette, Ralph H. Duggins, Sloan B. Blair, Anne Gardner, Kleber C. Miller, Fort Worth, for Relator.

William L. Kirkman, Fort Worth, William R. Keffer, Paul S. Leslie, Joseph W. Spence J. Randall Miller, Dallas, W. T. Womble, Houston, Michael A. Simpson, Bridgeport, Cynthia Hollingsworth, Dallas, for Respondents.

GONZALEZ, Justice, delivered the opinion for a unanimous Court.

This original mandamus proceeding concerns the construction of Section 74.053 of the Texas Government Code, which allows parties to a lawsuit to object to the assignment of a "former judge or justice who was not a retired judge." TEX. GOV'T CODE § 74.053(d). The primary issue is whether, for the purpose of this statute, the status of a judge as a "former judge ... who was not a retired judge" is fixed when a judge leaves office or when a judge is assigned. We hold that a judge's status is fixed when a judge leaves office. We conclude that the respondent should have sustained the relator's objection to the assigned judge. We conditionally grant the petition for writ of mandamus.

I

Arlen H. Nelon and LaQuita Nelon filed the underlying action in the 271st district court in Wise County. The Nelons claim that Mitchell Energy Corporation's natural gas wells contaminated their nearby water wells. Mitchell moved for disqualification or recusal of Judge John H. Fostel, the regular presiding judge of the 271st Judicial District. Judge Fostel declined to recuse himself. Mitchell objected to the first two judges that Judge Clyde R. Ashworth, the presiding judge for the Eighth Administrative Judicial Region, assigned to hear the recusal motion. Judge Ashworth honored the objections.

Judge Ashworth reassigned the recusal motion to a third judge, Judge Steven Herod, who granted Mitchell's motion to recuse Judge Fostel from trying the Nelons' case. Judge Ashworth then assigned the Nelon case to Judge Catherine Adamski Gant. Judge Gant had served as judge of the 360th Judicial District in Tarrant County from 1984 until 1988, when she was defeated for reelection. She then served as judge of the 141st Judicial District in Tarrant County from 1991 until 1994, when she again was defeated for re-election. From 1994 to 1996, she served as a visiting judge. Then in July of 1996, she qualified as a "senior judge" under Section 75.001 of the Government Code. Before the first hearing over which Judge Gant presided, Mitchell objected to Judge Gant under Section 74.053 of the Government Code. Judge Ashworth overruled Mitchell's objection, which Mitchell challenges by this mandamus proceeding.

II

Mandamus will issue to correct a clear abuse of discretion when there is no adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992). Interpretation of a statute is a pure question of law over which the judge has no discretion. Id. at 840. Mandamus is available to compel a judge's mandatory disqualification upon proper objection without a showing that the relator lacks an adequate remedy by appeal. Flores v. Banner, 932 S.W.2d 500, 501 (Tex.1996).

Section 74.053 of the Texas Government Code provides in pertinent part:

(a) When a judge is assigned under this chapter the presiding judge shall ... give notice ... to each attorney....

(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.

....

(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. (emphasis added)

TEX. GOV'T CODE § 74.053(a),(b),(d) (emphasis added). Subsection(b) allows a party to make one objection to any assigned judge. However, subsection (d) allows unlimited objections "to an assigned judge who was not a retired judge." Flores, 932 S.W.2d at 501. Mitchell concedes that it used up its one objection under Section 74.053(b), but argues that it could still object to Judge Gant under subsection (d) because she is a "former judge who was not a retired judge" when she was voted out of office.

When Judge Gant was assigned to this case, she had obtained the status of a Senior Judge. To be eligible to receive assignments as a Senior Judge, a judge must be a "retiree" as that term is defined under the statutes concerning the Judicial Retirement System. TEX. GOV'T CODE § 74.054(a)(2). A "retiree" is a person who receives an annuity based on service under Plan One or Plan Two of the Judicial Retirement System. Id. §§ 74.041(3), 831.001(4), 836.001(7). To receive such a judicial annuity, a judge must meet requirements about either the length of service or service plus age. Most typically, a judge must be sixty-five years of age and have at least ten years of creditable service to become a retiree. Id. §§ 834.101(a), 839.101. As previously noted, Judge Gant served two four-year terms as the regular judge of two different district courts, having been initially appointed to fill a vacancy during the last half year of an unexpired term, and elected and defeated twice thereafter. As a result, Judge Gant has about eight and a half years of service as a regular district judge. She served enough additional years as a visiting judge to qualify as a retiree, and took senior judge status shortly before her assignment to this case.

Mitchell contends that Judge Gant's present status as a retiree judge is irrelevant, because of the Legislature's use of the past tense in the phrase "former judge or justice who was not a retired judge." Mitchell argues that the purpose behind Section 74.053(d) was to give parties the right to object to former judges who were not re-elected enough times to qualify for judicial retirement when they left elective office--those who had not met "the test of time" with the voters. The Nelons contend that all the Legislature meant was that a former judge must have achieved retired-judge status when assigned to be immune to an objection under Section 74.053(d).

In construing a statute, our primary objective is to give effect to the Legislature's intent. Texas Water Comm'n v. Brushy Creek Mun. Util. Dist., 917 S.W.2d 19, 21 (Tex.1996). We try to give it the meaning the Legislature intended, keeping in mind at all times the "old law, the evil, and the remedy." TEX. GOV'T CODE § 312.005; accord Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 629 (Tex.1996). We consider the object to attain, the circumstances of the statute's enactment, legislative history, former statutory and common law, and the consequences of a particular construction. TEX. GOV'T CODE § 311.023; Union Bankers Ins. Co. v. Shelton, 889 S.W.2d 278, 280 (Tex.1994).

We endeavor to discover what the Legislature intended from the actual language it employed. The use of "was" in Section 74.053(d) is distinctive, being the only use of the past tense anywhere in Section 74.053. For example, subsection (a) states: "When a judge is assigned" to hear a case the presiding judge must notify the parties if possible. TEX. GOV'T CODE § 74.053(a) (emphasis added). On the other hand, subsection (d) provides: "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." Id. § 74.053(d)(emphasis added). The use of past tense in subsection (d) indicates that the Legislature was contemplating a time before assignment. The Nelons' argument that subsection (d) means only that a judge must have attained retired status at the time of assignment does not comport with the Legislature's choice of words.

We turn next to the statutory development of the system of assigning judges. Before 1957, only currently sitting district judges could be assigned to another court. In 1957, the Legislature allowed judges who participated in the Judicial Retirement System to serve by assignment, being retired judges who were sixty-five years old with at least ten years experience. Act of May 23, 1957, 55th Leg., R.S., ch. 408, § 1, 1955 Tex. Gen. Laws 1236. In 1977, the Legislature added another category of judges who could qualify for assignment--former district judges who had not been defeated for re-election and were below the age of seventy. Act of April 21, 1977, 65th Leg., R.S., ch. 115, § 2, 1977 Tex. Gen. Laws 248. In 1985, the Legislature revised the qualifications to be an assigned former district judge to those who had served four years and certified that they would never appear and plead in court, omitting the prohibition against judges who had been defeated. Act of May 17, 1985, 69th Leg., R.S., ch. 480, § 1, 1985 Tex. Gen. Laws 1720, 2026-27; Act of May 27, 1985, 69th Leg., R.S., ch. 602, § 17, 1985 Tex. Gen. Laws 2249, 2268; Act of May 27, 1985, 69th Leg., R.S., ch. 732, § 2, 1985 Tex. Gen. Laws 2533, 2539-40. The 70th Legislature authorized retired or former statutory county court at law judges to serve as assigned visiting judges. At the same time, the requirement that prospective visiting judges foreswear practicing law in state courts forever was changed to a prohibition from appearing in state courts for two years. Act of June 1, 1987, 70th Leg., R.S. ch. 674, § 1.07, 1987 Tex. Gen. Laws 2507, 2509.

The major features of the current statutory system for assigning judges has not changed much from 1991. There are three basic categories of judges who may receive an assignment, "regular," "retiree," and "former" judges. A "regular" judge is one who is a current officeholder from another court. TEX GOV'T CODE § 74.054(a)(1), (a)...