Opinion
No. 05-03-00401-CV
Opinion issued May 5, 2005.
On Appeal from the 302nd District Court, Dallas County, Texas, Trial Court Cause No. DF99-01968-U.
Vacated and Remanded.
Before Justices MOSELEY, BRIDGES, and LANG-MIERS.
MEMORANDUM OPINION
On the Court's own motion, we withdraw our opinion of June 17, 2004 and vacate our previous judgment. The following is now the opinion of the Court.
Susan Diamond, mother of M.A.S., D.A.S., J.E.S., C.M.S., and R.L.S., appeals the trial court's order modifying the divorce decree between Diamond and Richard San Soucie, the children's father. In a single issue, Diamond argues the judge who signed the order modifying the divorce decree lacked jurisdiction because Diamond timely objected to the judge's assignment under section 74.053 of the government code. We vacate the judge's orders in the underlying cause and remand this case for further proceedings consistent with this opinion.
We note appellee references a more recent modification action in the 255th District Court.
On August 29, 2000, the trial court entered a final decree of divorce between Diamond and San Soucie. Subsequently, both Diamond and San Soucie sought modification of the divorce decree. On August 2, 2001, the trial judge chose to call in a visiting judge rather than put the case "on the docket from here to perpetuity every week." On August 13, 2001, a visiting judge was assigned to the case by the presiding judge of the first administrative judicial region. At approximately 5:04 p.m. on August 15, 2001, the court coordinator for the 302nd district court faxed to the parties a notification that the visiting judge had been appointed and had scheduled a hearing on August 20, 2001 at 9:30 a.m.
Although the details are unclear from the record, the visiting judge also scheduled a pretrial hearing for 1:30 p.m. on August 16, 2001, the next day. The court coordinator informed the visiting judge that Diamond's counsel would be filing a motion objecting to the visiting judge. The record contains Diamond's objection to the visiting judge's appointment. The objection shows it was filed at 11:22 a.m. on August 16, 2001 with the district clerk's office. The record indicates Diamond's counsel informed San Soucie's counsel of the objection, though it is unclear whether Diamond's counsel said the objection had been filed or would be filed. At 1:30 p.m. on August 16, 2001, the visiting judge proceeded with the pretrial hearing. Diamond's counsel was not present. San Soucie's counsel brought the filing of the objection to the visiting judge's attention, but the objection had not yet been placed in the file. Another attorney representing Diamond could not be reached before the hearing to inform him of the objection, and he arrived at the hearing late. He made no objection to the visiting judge. The visiting judge then proceeded with the hearing and appointed an attorney ad litem to represent one of the children.
On August 17, 2001, the visiting judge became aware of the objection filed the day before, and she referred the case to the presiding judge of the first administrative judicial region to determine whether recusal was necessary. After a hearing on the matter, the presiding judge determined that Diamond's objection to the visiting judge was waived. The visiting judge conducted a trial in 2002 and entered an order modifying her prior order on March 20, 2003. On April 8, 2003, Diamond filed an amended notice of appeal. The parties completed their briefing requirements, and the parties were notified by letter dated March 1, 2004, that the case was ready for submission.
In a single issue, Diamond argues the visiting judge lacked jurisdiction in this case because Diamond timely filed an objection. Specifically, Diamond argues she filed an objection in compliance with section 74.053 of the government code, and the visiting judge was therefore without jurisdiction to hear the case. Section 74.053 provides in part:
(b) If a party to a civil case files a timely objection to the assignment [of an assigned judge], 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.
Tex. Gov't Code Ann. § 74.053(b), (c) (Vernon Supp. 2004). A document is "filed" when it is tendered to the clerk, and the legal effect of filing a document remains the same whether the judge presiding over the litigation is aware of its filing or not. Lewis v. Leftwich, 775 S.W.2d 848, 849-50 (Tex.App.-Dallas 1989, no writ) (orig. proceeding) (objection to assigned judge under government code section 74.053 is timely if made before assigned judge, sitting on bench and in open court, calls case to hearing or trial); Brown v. Mulanax, 808 S.W.2d 718, 720 (Tex.App.-Tyler 1991, no writ) (objection to visiting judge timely even though filed one hour before judge scheduled to conduct first hearing in action). Once a party files a timely objection to an assigned judge pursuant to section 74.053 of the government code, the judge is automatically disqualified as a matter of law. Lewis, 775 S.W.2d at 851.
Here, the 302nd District Court coordinator notified the parties by fax after 5:00 p.m. on August 15, 2001 that the visiting judge had been assigned, and a hearing was scheduled for August 20, 2001 at 9:30 a.m. The visiting judge also set a pretrial hearing at 1:30 p.m. for the next day, August 16, though the record contains no written documentation that such a hearing was set, and the trial judge testified in a hearing on the matter that she did not issue notices of the hearing to counsel but directed the court coordinator to "notify all of you." The court coordinator informed the visiting judge that Diamond would be filing a motion objecting to the visiting judge's appointment, and she said, "Fine. Then I presume [Diamond's counsel] will be here to do that."
Diamond filed her objection to the assignment of the visiting judge at 11:22 a.m. on August 16. The visiting judge did not conduct the pretrial hearing until 1:30 p.m. that afternoon. At the hearing, the first matter raised was a telephone call San Soucie's counsel received from Diamond's counsel "advising [him] that [Diamond's counsel] was filing an objection to you [the visiting judge] on this matter." San Soucie's counsel stated Diamond's counsel did not indicate whether the objection had been filed or when it was being filed, and San Soucie's counsel said he was "coming down here anyway." San Soucie's counsel stated he had gone to get the jacket and had asked the clerk if there had been a written objection, but "they had not seen one." The visiting judge responded that, "an investigation of the file does not show that any objection has been filed and I am going to proceed." Stating that "I understand that there is an emergency of some kind," the visiting judge proceeded to appoint an attorney ad litem before adjourning the proceedings.
We conclude Diamond's objection was timely filed, regardless of whether the visiting judge was aware that the objection was filed or not. See Tex. Gov't Code Ann. § 74.053(c) (Vernon Supp. 2004); Lewis, 775 S.W.2d at 849. Accordingly, the visiting judge was automatically disqualified as a matter of law. Lewis, 775 S.W.2d at 851. Any judgment or order entered by the disqualified judge is a nullity. Id. In reaching this conclusion, we reject San Soucie's contention that "numerous cases" cited by San Soucie require a different result. In re Approximately $17,239.00, 129 S.W.3d 167, 168 (Tex.App.-Houston [14th Dist.] 2003, no pet.) (objection waived where judge unaware of objection filed seven days before hearing and hearing "underway for some time" before party who appeared at hearing finally mentioned objection); Chandler v. Chandler, 991 S.W.2d 367, 383 (Tex.App.-El Paso 1999, pet. denied) (objection untimely where plaintiff's attorney initially sent letter to visiting judge indicating judge might have bias against him but then agreed to judge presiding over one cause number and raised no objection when judge presided over hearing on all cause numbers); Tex. Employment Comm'n v. Alvarez, 915 S.W.2d 161, 163 (Tex.App.-Corpus Christi 1996, no writ) (objection to judge not effective when it failed specifically to name judge and party proceeded to trial without mentioning objection); Morris v. Short, 902 S.W.2d 566, 569 (Tex.App.-Houston [1st Dist.] 1995, writ denied) (objection not timely where made orally after judge had ruled on motion for continuance). We sustain Diamond's single issue.
We vacate the visiting judge's orders in the underlying cause and remand for further proceedings consistent with this opinion.