Opinion
No. 12-04-00005-CV.
Opinion delivered February 4, 2004.
Appeal from the Original Proceeding.
Panel consisted of WORTHEN, C.J., GRIFFITH, J. and DeVASTO, J.
MEMORANDUM OPINION
Relator Jessie Hampton ("Hampton") seeks a writ of mandamus requiring the trial court to vacate an order denying his application for writ of habeas corpus. We conditionally grant the writ.
BACKGROUND
On March 13, 1986, a jury found Hampton guilty of aggravated sexual assault and assessed his punishment at fifty years of imprisonment. The trial court rendered judgment in accordance with the jury's verdict. On direct appeal, we affirmed the trial court's judgment. Hampton v. State, No. 12-86-00075-CR (Tex. App.-Tyler May 22, 1987, no pet.) (not designated for publication). Hampton was represented at trial by W.E. Coats.
On August 20, 1987, Hampton received a letter from the court reporter for his trial. The letter was a response to Hampton's inquiry concerning the availability of certain portions of his trial record. However, the letter also informed Hampton that his trial attorney had become the presiding judge of the trial court in which Hampton was convicted. Hampton subsequently filed an application for writ of habeas corpus, which was denied by order signed on January 12, 1988. The order was signed by W.E. Coats as presiding judge. In his mandamus petition, Hampton contends that the trial judge was disqualified to determine the merits of the habeas application because he had served as Hampton's counsel in the trial on the merits. Therefore, Hampton concludes, the January 12 order is void and mandamus relief is appropriate.
PREREQUISITES TO MANDAMUS
Mandamus is an extraordinary remedy that will issue only to correct a clear abuse of discretion where there is no adequate remedy by appeal. See Walker v. Packer, 827 S.W.2d 833, 839-41 (Tex. 1992). A relator who attacks the ruling of a trial court as an abuse of discretion labors under a heavy burden. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985). To establish an abuse of discretion, the relator must show that the trial court's decision was "so arbitrary and unreasonable as to amount to a clear and prejudicial error of law." Walker, 827 S.W.2d at 839 (quoting Johnson, 700 S.W.2d at 917). Signing a void order is necessarily an abuse of discretion. Dunn v. Street, 938 S.W.2d 33, 35 (Tex. 1997). If the challenged order is void, the relator need not show that it lacks an adequate appellate remedy. In re Southwestern Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding); In re State ex rel. Robinson, 116 S.W.3d 115, 117 (Tex. App.-Houston [14th Dist.] 2002, orig. proceeding). Consequently, in the instant case, we need address only whether the trial court rendered a void order.
ABUSE OF DISCRETION
No judge shall sit in any case where he has been counsel in the case. TEX. CONST. art. V, § 11; TEX. CODE CRIM. PROC. ANN. art. 30.01 (Vernon Supp. 2004). This prohibition is mandatory and must be observed. Ex parte Washington, 442 S.W.2d 391, 392-93 (Tex.Crim.App. 1969). A judge's disqualification arising from a constitutional or statutory provision affects jurisdiction and any act of the judge is rendered a nullity. Ex parte Vivier, 699 S.W.2d 862, 863 (Tex.Crim.App. 1985); Lee v. State, 555 S.W.2d 121, 124 (Tex.Crim.App. 1977).
The State argues that even if the trial judge was formerly Hampton's trial counsel, Hampton has waived the issue by his failure to file a motion to disqualify the judge in the habeas proceeding. This argument is without merit. The disqualification of a judge may not be waived even by consent of the parties. Gamez v. State, 737 S.W.2d 315, 318 (Tex.Crim.App. 1987). Furthermore, the issue may be raised at any time. Id. The State further contends that allowing Hampton to assert his challenge without having previously called the trial judge's attention to his disqualification will permit Hampton to manipulate the judicial system. A similar argument has been rejected by the court of criminal appeals, Vivier 699 S.W.2d at 862, and we reject it here.
The record reveals that (1) W.E. Coats was trial counsel for Hampton, (2) he subsequently became a trial judge, and (3) as a trial judge he entered an order denying Hampton's application for writ of habeas corpus relating to the trial in which he had represented Hampton. Because Judge Coats had previously served as Hampton's trial counsel, he was disqualified at the time he signed the complained-of order. Therefore, the order is void.
CONCLUSION
Hampton has shown himself entitled to mandamus relief. We therefore conditionally grant the writ. Judge Coats is now deceased, and this opinion and the corresponding order are directed to his successor in office. The writ of mandamus will issue only in the event the order dated January 12, 1988 denying Hampton's application for writ of habeas corpus is not vacated.