Opinion
No. 05-16-00055-CV
01-27-2016
IN RE SEVERIANO CARNERA JR, Relator
Original Proceeding from the 254th Judicial District Court Dallas County, Texas
Trial Court Cause No. DF-04-05994
MEMORANDUM OPINION
Before Justices Lang-Miers, Evans, and Whitehill
Opinion by Justice Evans
In this petition for writ of mandamus, relator requests that we vacate the trial court's October 20, 2015 judgment in this suit affecting the parent-child relationship and the January 4, 2016 Interim Judgment for Child Support Arrearage. Relator argues that the trial court's orders are void. We disagree.
The mandamus record does not include a judgment. The trial court advised the parties of its ruling by means of a facsimile transmission dated October 20, 2015 which stated, "[Relator] is ordered to pay to [mother] the amount of $24,187.18. [Relator] is ordered to pay that sum on or before August 26, 2018. The Court will enter withholding orders as needed." --------
Mother, who is the real party in interest in the case, filed a petition to modify the parent-child relationship in June 2012. She subsequently filed first and second amended petitions in September 2012 and July 2013. In each of her petitions, she included a pro forma objection "to the assignment of this matter to an associate or visiting for a trial on the merits or presiding at a jury trial." Between the time the petition for modification was filed and the date of trial, both children reached the age of 18, so the case went to trial only on issues related to unpaid child support, related monetary obligations, and attorney's fees.
The case was assigned to the 254th Judicial District Court. In August 2014, the elected judge began the trial of the case, but did not finish. On April 22, 2015, following the death of the elected judge, the presiding judge of the First Administrative Judicial Region assigned the Honorable Carmen Rivera-Worley, former judge of the 16th Judicial District Court, to the 254th Judicial District Court. On August 26, 2015, the case was called to trial before Judge Rivera-Worley. Both sides appeared, announced ready and proceeded to trial without asserting any specific objection to trial of the case before Judge Rivera-Worley.
After hearing the evidence and argument of the parties, Judge Rivera-Worley took the case under advisement and later determined that relator owed mother $24,187.18. Two months later, relator moved to vacate the trial court's "judgment." He argued that Judge Rivera-Worley was not permitted to hear the case based on the pro forma visiting judge objection included in mother's pleadings. Judge Rivera-Worley denied the motion to vacate and, on the same day, signed an interim judgment for the child support arrearage. She deferred a ruling on attorney's fees.
Section 74.053(b) of the Texas Government Code provides that once a party files a timely objection to an assigned judge, "the judge shall not hear the case." TEX. GOV'T CODE ANN. § 74.053(b) (West 2013); see also Lewis v. Leftwich, 775 S.W.2d 848, 849-50 (Tex. App.—Dallas 1989, orig. proceeding). An objection to an assigned judge is timely if it is filed before the first hearing or trial, including pretrial hearings over which the judge is to preside, without regard to the terms of the particular order under which the judge is assigned. TEX. GOV'T CODE ANN. § 74.053(c); In re Canales, 52 S.W.3d 698, 704 (Tex. 2001) (orig. proceeding); Lewis, 775 S.W.2d at 849. Once a party files a timely objection to an assigned judge, the judge is automatically disqualified as a matter of law, even if the judge is unaware of the objection. In re M.A.S., 05-03-00401-CV, 2005 WL 1039967, at *2 (Tex. App.—Dallas May 5, 2005, no pet.).
The pro forma objections asserted in mother's petitions filed years before the assignment of Judge Rivera-Worley to the case were not sufficient to assert the objection in this case. A party does not possess the right to object to the assignment of a visiting judge before the assignment takes place. Discovery Operating, Inc. v. Baskin, 855 S.W.2d 884, 887 (Tex. App.—El Paso 1993, no writ). Section 74.053 clearly contemplates that assigned judge objections will be filed after the assignment of a judge to whom a party objects, not that parties can file pro forma blanket objections to assigned judges at the time they file their initial pleadings. See TEX. GOV'T CODE ANN. § 74.053(c) ("An objection under this section must be filed not later than the seventh day after the date the party receives actual notice of the assignment or before the date the first hearing or trial, including pretrial hearings, commences, whichever date occurs earlier."). At the time mother filed her petition and amended petitions, no visiting judge had been assigned to the case. Thus, mother did not at those times have a right to object to the assignment of a visiting judge.
Moreover, once Judge Rivera-Worley had been assigned to the case, both parties proceeded to trial without requesting a ruling on the pro forma blanket objection included in mother's petition and amended petitions and without otherwise asserting an objection to Judge Rivera-Worley presiding over the case. A party may withdraw a previously filed objection after it is filed. Clark v. Yarbrough, 900 S.W.2d 406, 410 (Tex. App.—Texarkana 1995, writ denied). It impliedly does so when it participates in a proceeding without advising the assigned judge that an objection has been filed. See, e.g., 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. Emp't 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).; cf. In re M.A.S., 2005 WL 1039967, at *2 (objection not waived when hearing proceeded in absence of party who filed objection).
The purpose of the statutory requirement of an immediate objection to an assigned judge is to avoid a party's attempt to "sample" the judge. In re Canales, 52 S.W.3d at 703. That is precisely what relator sought to do in this case. We deny the petition.
/David W. Evans/
DAVID EVANS
JUSTICE 160055F.P05