Opinion
NO. WR-93,089-01
06-14-2023
IN RE STATE of Texas, EX REL. Brian W. WICE, relator
OPINION
Richardson, J., delivered the opinion of the Court in which Hervey, Newell, Walker, Slaughter, and McClure, JJ., joined.
Judge George Gallagher, elected judge for the 396th District Court in the Eighth Administrative Judicial Region, was specifically assigned by Presiding Judge Mary Murphy of the First Administrative Judicial Region to preside over State v. Paxton in the 416th District Court in the First Administrative Judicial Region in July of 2015. The issue before this Court, on mandamus, is whether Judge Gallagher had the constitutional and statutory authority to preside over State v. Paxton when he granted a change of venue to Harris County in April of 2017. We hold that he did, regardless of any other assignment orders that were issued by Presiding Judge David Evans. We, therefore, conditionally grant the State's petition for writ of mandamus.
In his dissent, Judge Yeary claims the "real" issue is whether the Harris County District Court judges had "any authority at all to send the case back to Collin County. The Court's analysis misses this critical point." J. Yeary's Dissent, at 688. There was only one issue raised by Real-Party-in-Interest to void or reverse Judge Gallagher's decision. Specifically, in April of 2017, Real-Party-in-Interest claimed Judge Gallagher had no authority to preside over the case because the orders from the regional presiding judge of the Eighth Administrative Judicial Region had expired. That sole issue was raised in motions before two district judges in Harris County, the First Court of Appeals, and on mandamus before our Court. Any other grounds are not mentioned in the record. What either Judges Johnson or Luong might have been thinking is pure speculation. Franklin v. State , 693 S.W.2d 420, 431 (Tex. Crim. App. 1985) (disallowing consideration of assertions not supported by the record on appeal). Moreover, those speculative reasons could only have been raised on direct appeal, not via the claim that Judge Gallagher had no authority to act. See e.g., Gregory v. State , 37 S.W. 752, 752 (Tex. Crim. App. 1896).
I. Background
A. How Judge Gallagher Became the Judge Presiding Over This Case
In 2015, a Collin County Grand Jury returned three felony indictments against the Real-Party-in-Interest, Warren Kenneth Paxton, Jr. These cases were assigned to the 416th District Court of Collin County. The 416th District Court is in the First Administrative Judicial Region and Judge Chris Oldner was the judge presiding at that time. Judge Oldner voluntarily recused himself from the case and "referred" it to Presiding Judge Mary Murphy of the First Administrative Judicial Region. Presiding Judge Murphy requested and assigned Judge Gallagher, an elected district court judge sitting outside the First Administrative Judicial Region, to preside over this case.
App. to Real-Party-in-Interest Paxton's Response to Relator's Petition for Writ of Mandamus [hereinafter Paxton App. ], at *006 ("Voluntary Recusal"); Tex. R. Civ. P. 18a(f)(1)(B), 18b ; see Arnold v. State , 853 S.W.2d 543, 544 (Tex. Crim. App. 1993) (affirming DeBlanc v. State , 799 S.W.2d 701 (Tex. Crim. App. 1990) ’s implicit holding that Tex R. Civ. P. 18a applies to criminal cases).
"Presiding Judge" is the statutory title of a judge charged with overseeing one of the eleven administrative judicial regions in Texas. Tex. Gov't Code § 74.041(2). Except when referring to them by title, we will refer to them as "regional presiding judges" for the sake of clarity in this opinion.
At the heart of this dispute are three "assignment orders" issued by two regional presiding judges (Presiding Judges David Evans and Mary Murphy) from different administrative judicial regions. We will refer to them in order as Assignment Order I by Presiding Judge Evans signed on July 28, 2015; Assignment Order II by Presiding Judge Murphy signed on July 29, 2015; and Assignment Order III by Judge Evans signed on December 21, 2015.
Paxton App. , at *006 ("The State of Texas Eighth Administrative Judicial Region Order of Assignment by the Presiding Judge, July 28, 2015" [hereinafter Assignment Order I ]). Though the title uses the term "assignment," we note that it merely assigns an active district judge to another administrative judicial region for "reassignment." Rather than actually assigning Judge Gallagher to a specific court or case, it generally and effectively assigns the judge to another region.
On July 28, 2015, Presiding Judge David Evans of the Eighth Administrative Judicial Region issued the following order:
Pursuant to Section 74.056, Texas Government Code, I assign the Honorable George Gallagher, District Judge of the 396th Court to the
1st Administrative Judicial Region for reassignment by the Presiding Judge thereof.
The judge is assigned for a period of 157 days, beginning July 28th, 2015. If the judge begins a trial on the merits during the period of this assignment, the assignment continues in such case until plenary jurisdiction has expired or the undersigned Presiding Judge has terminated this assignment in writing, whichever comes first.
Assignment Order I.
This order purports to assign Judge Gallagher to the First Administrative Judicial Region, so Judge Murphy could then "reassign" him to any court or case within the First Region; however, this assignment order expired on December 31, 2015.
We note, as an elected judge, Judge Gallagher continued to preside over his own court, the 396th District Court in Tarrant County, in the Eighth Judicial Administrative Region during the entire period of this case.
Paxton App. , at *007 ("The State of Texas First Administrative Judicial Region Order of Assignment by the Presiding Judge, July 29, 2015" [hereinafter Assignment Order II ]).
The next day, on July 29, 2015, Presiding Judge Murphy, pursuant to Section 74.056, Texas Government Code (as noted on the order), assigned Judge Gallagher to the 416th District Court of Collin County for the case against the Real-Party-in-Interest:
As relevant in Section 74.056 of the Texas Government Code :
ASSIGNMENT BY PRESIDING JUDGE
(a) A presiding judge from time to time shall assign the judges of the administrative region to hold special or regular terms of court in any county of the administrative region to try cases and dispose of accumulated business.
(b) The presiding judge of one administrative region may request the presiding judge of another administrative region to furnish judges to aid in the disposition of litigation pending in a county in the administrative region of the presiding judge who makes the request.
This assignment is for the cause(s) and style(s) as stated in the conditions of assignment from this date until plenary power has expired or the undersigned Presiding Judge has terminated this assignment in writing, whichever occurs first.
CONDITIONS OF ASSIGNMENT
NOS. 416-81913-2015, 416-81914-2015, 116-81915-2015; State of Texas v. Warren Kenneth Paxton, Jr.
In addition, whenever the assigned Judge is present in the county of assignment for a hearing in the above cause(s), the Judge is also assigned and empowered to hear, at that time, any other matters presented for hearing.
Assignment Order II.
This was the only case Judge Murphy assigned Judge Gallagher to preside over in the First Administrative Judicial Region during the dates in question. Judge Gallagher was still presiding over matters on the case through April of 2017. Furthermore, as far as the record shows, Judge Gallagher never exercised his statutory right to object to his assignment to the case. Unlike Presiding Judge Evans's orders, Presiding Judge Murphy's order did not have an expiration date, nor did she ever terminate Judge Gallagher's assignment.
See Tex. Gov't Code § 74.060(a) ("An active judge may not, without the judge's consent, be assigned out of the judge's district or county for more than 10 calendar days in a year.").
Paxton App. , at *008 ("The State of Texas 8th Administrative Judicial Region Order of Assignment by the Presiding Judge, December 21, 2015" [hereinafter Assignment Order III ]).
Pre-trial matters continued through 2015. On December 21, 2015, Presiding Judge Evans extended Judge Gallagher's assignment to the First Administrative Judicial Region. This order stated:
[District Judge Gallagher] is assigned for a period of 366 days, beginning January 1, 2016. If the judge begins a trial on the merits during the period of this assignment, the assignment continues in such case until plenary jurisdiction has expired or the undersigned Presiding Judge has terminated this assignment in writing, whichever occurs first.
Assignment Order III.
There was no express language in Assignment Order III extending Judge Gallagher's assignment to the First Administrative Judicial Region after January 1, 2017, absent the commencement of trial. Specifically, it is Judge Evans's second order (Assignment Order III ) that both the trial court and court of appeals relied upon to invalidate Judge Gallagher's order changing venue to Harris County, because it conflicted with Judge Murphy's assignment order. Assignment Order III expired on January 1, 2017 and no subsequent order with a new expiration date was ever issued.
We note that the emails between the administrative assistants for the First and Eighth Presiding Judges demonstrate on their face that the Presiding Judge Evans of Judge Gallagher's home region intended to keep Judge Gallagher assigned to the First Administrative Judicial Region past the January 2017 expiration of Assignment Order III. See App. to State's Petition for Writ of Mandamus, at Tab 31. Skepticism about the formality requirements of an assignment order have been previously expressed. See Ex parte Reed , No. WR-50,961-10, 2019 WL 6108568, at *1–2 (Tex. Crim. App. Nov. 15, 2019) (Keasler J., concurring) (reasoning against reading the four corners of an assignment order as fully controlling).
B. How the Change in Venue to Harris County Came About
Pre-trial matters continued past the 366 days stated in Assignment Order III. On February 9, 2017, the State filed a motion to change venue. Judge Gallagher granted the State's motion on March 29, 2017 without deciding the new venue. Real-Party-in-Interest timely objected to the venue transfer, which was overruled by Judge Gallagher. On March 30, 2017, Judge Gallagher sent an email to the parties offering them options to consider for the new venue:
The options that I am making known regarding change of venue are as follows:
Option 1. Article 31.02 of CCP [the Code of Criminal Procedure] mandates that I transfer to [an] adjoining district. If I follow the statute, I will transfer to Dallas County. There is a ceremonial courtroom that I believe is located in their civil courts building that may be available.
Option 2. I would transfer to Harris County. It is my understanding that there is a ceremonial courtroom in the criminal building that may be available. Additionally, I recognize that the majority of the lawyers are from Harris County which I would hope assist you.
Option 3. I would transfer to Tarrant County. In our building, we have four vacant courtrooms as a result of our civil courts moving to a new building....
The remaining courtrooms would be set aside for the state and the defense respectively as your "war rooms." The state would have sole access to their room and the defense would have sole access to their room. This could allow everyone to have a place to work while the trial was being conducted.
If any of you have other options, I am open to suggestion.
* * *
If we do an option other than No. 1, it will require it be done by agreement. I would make sure that the record reflected that, if agreed to transfer to a non-adjoining county, it would NOT constitute a waiver of the underlying objections to granting of the motion for change of venue.
See Paxton App. , at *082.
On April 10, 2017, Judge Gallagher conducted a hearing on where the new venue should be. During that hearing, both parties agreed to transfer the case to Harris County—a non-contiguous county. On April 11, 2017, Judge Gallagher issued a written order designating the new venue to be Harris County.
See Paxton App. , at *080–081 (Telephonic Hearing on State's Motion for Change of Venue, (4 RR 8)). We note that even though the Real-Party-in-Interest agreed to the transfer to Harris County, he preserved his objections to the change in venue.
Although Article 31.02 of the Code of Criminal Procedure requires the new venue to be an "adjoining district," there is no dispute that Judge Gallagher had authority to choose Harris County. As shown above, the parties consented to it after Judge Gallagher warned them about the requisites of Article 31.02. Ex parte Watson , 601 S.W.2d 350, 351 (Tex. Crim. App. 1980) ("Improper venue, unlike jurisdiction, may be waived by the defendant's failure to object at trial.... Unlike jurisdiction, venue may be acquired by consent."). Thus, Judge Gallagher had discretion, as part of being a constitutionally elected judge, to choose Harris County.
On May 10, 2017, Real-Party-in-Interest filed an objection to all rulings made by Judge Gallagher after January 1, 2017, and filed a corresponding motion to return the case to the regional presiding judge covering Collin County (Presiding Judge Murphy). Real-Party-in-Interest argued that Judge Gallagher's authority lapsed when Assignment Order III expired at 12:00 a.m. on January 2, 2017.
On May 15, 2017, Real-Party-in-Interest filed a Petition for Writ of Mandamus in the Fifth Court of Appeals challenging Judge Gallagher's continued involvement in the case. The Fifth Court of Appeals found Collin County lost jurisdiction immediately after Judge Gallagher signed the order changing venue to Harris County on April 11, 2017. Any rulings made after that April 11, 2017 venue transfer order were void and the Collin County District Clerk was to transfer the case files to Harris County. On June 9, 2017, the case was transferred to Harris County.
In re Paxton , Nos. 05-17-00507-CV, 05-17-00508-CV, & 05-17-00509-CV, ––– S.W.3d ––––, ––––, 2017 WL 2334242, at *4 (Tex. App.—Dallas May 30, 2017, orig. proceeding).
Id. at ––––, 2017 WL 2334242, at *5 ; Tex. Code Crim. Proc. art. 31.05.
In re State ex rel. Wice , 629 S.W.3d 715, 719–20 (Tex. App.—Houston [1st Dist.] 2021, orig. proceeding).
C. The Dispute Over Where The Case Belongs and to Which Judge Continued
Because he lacked the consent of all parties to go with the case, Judge Gallagher did not continue to preside over the case after the change of venue. Thus, upon transfer to Harris County, the case was assigned to Judge Robert Johnson of the 177th District Court of Harris County. On July 18, 2019, over two years later, Real-Party-in-Interest filed a motion "to set aside change of venue as void and return cases to Collin County, Texas." A year later on June 25, 2020, Judge Johnson granted Real-Party-in-Interest's motion to set aside Judge Gallagher's April 11, 2017 venue transfer order as void and ordered the case be returned to Collin County.
Tex. Code Crim. Proc. art. 31.09(a) ; In re Paxton , ––– S.W.3d at ––––, 2017 WL 2334242, at *5.
Id.
Paxton App. , at *269.
Id. at *152.
The State filed a petition for writ of mandamus in the First Court of Appeals asking to vacate Judge Johnson's June 25, 2020 order returning the case to Collin County. However, on July 6, 2020, Judge Johnson voluntarily recused himself and referred the case to Presiding Judge Susan Brown of the Eleventh Administrative Judicial Region for reassignment. The case was then reassigned to Judge Jason Luong of the 185th District Court in Harris County. The First Court of Appeals abated the matter to allow Judge Luong to reconsider Judge Johnson's order returning the case to Collin County. On October 23, 2020, Judge Luong held that he lacked jurisdiction to reconsider the matter since the case was transferred back to Collin County immediately after Judge Johnson signed the June 25, 2020 order. Judge Luong alternatively held if in fact he had jurisdiction to consider the underlying merits, he would void the order transferring venue.
See Russell v. Harris Cty. , 500 F. Supp. 3d 577 (S.D. Tex. 2020). Judge Johnson subsequently recused himself. See Paxton App. , at *153–58.
In re State ex rel. Wice , 629 S.W.3d at 718.
App. to State's Petition for Writ of Mandamus, at Tab 15 ("Order of Abatement").
App. to State's Petition for Writ of Mandamus, at Tab 16 ("Order on Reconsideration of Prior Order Vacating Order of Transfer to Harris County, Texas"). Specifically, Judge Luong's order stated:
Accordingly, this Court is without jurisdiction to review the challenged order or any pending motions in these cases.
In the alternative, if it is determined by the First Court of Appeals, or by any other or higher appellate court that the 185th Judicial District Court does have jurisdiction to review and reconsider the June 25, 2020 Order, it is the Court's finding that Judge Gallagher was without jurisdiction to enter the March 30, 2017 order, that the March 30 2017 order and related venue orders should be set aside, and that the Harris County District Clerk's file should be transferred to the Collin County District Clerk.
Id.
D. The First Court of Appeals's Decision—Judge Gallagher's Authority Had "Expired"
On May 27, 2021, a divided First Court of Appeals denied the State's petition for writ of mandamus. In their analysis, the lower appellate court applied specific-controls-over-general and earlier-controls-over-later-terms principles to Assignment Orders I , II , and III. The court of appeals found that Judge Gallagher's authority under Assignment Order I (extended by Assignment Order III ) had expired when Judge Gallagher entered the April 11, 2017 venue transfer order moving the case to Harris County. Per the First Court of Appeals, the later, general Assignment Order II to the case was controlled by the earlier, specific Assignment Order I to the region. But Justice Goodman dissented and argued that Article V, Section 11 of the Texas Constitution provided Judge Gallagher with the authority to issue the venue transfer order, after his assignment order to the First Administrative Judicial Region expired. Justice Goodman noted in his concurring and dissenting opinion:
In re State ex rel. Wice , 629 S.W.3d at 718.
Id. at 728–31 (Goodman, J., concurring & dissenting).
"As for the majority's contention that applying Article V, Section 11 in this instance would undermine the Court Administration Act, the majority puts the cart before the horse. Our Constitution is supreme. If its provisions undermine a statute, it is the statute in this case that must give way. Courts have repeatedly said so with respect to Article V, Section 11 of our Constitution."
Id. at 731.
On September 21, 2021, the First Court of Appeals denied en banc reconsideration. Justice Guerra wrote in dissent to the denial of en banc reconsideration arguing the opposite. Justice Guerra reasoned, that Assignment Order I (the July 28, 2015 order assigning Judge Gallagher to the First Administrative Judicial Region) was the actual "general" order and Assignment Order II assigning Judge Gallagher to the Real-Party-in-Interest's case was the actual "specific" order. Hence, Judge Gallagher was authorized to preside over the case until its conclusion. In short, Judge Guerra opined that the order signed by Presiding Judge Murphy of the First Administrative Judicial Region should carry the day: "By using the incorrect labels to interpret the assignment orders, the majority opinion renders the specific assignment meaningless."
In re State ex rel. Wice , 634 S.W.3d 370, 370 (Tex. App.—Houston [1st Dist.] 2021, orig. proceeding) (mem. op.).
We note that the assignments of elected, visiting, and retired judges are a routine practice across the State, and the resolution of this original proceeding is likely to guide the interpretation of assignment orders.
Id. at 371–75 (Guerra, J., dissenting).
Id. at 371–74.
II. The Issue Before This Court
The State then filed this petition for writ of mandamus. In this second original proceeding, the State seeks to compel the trial court (Judge Johnson presiding initially followed by Judge Luong) to vacate its order voiding Judge Gallagher's order transferring venue to Harris County returning the felony prosecutions of the Real-Party-in-Interest back to Collin County.
The question now before this Court begins with whether Judge Johnson and Judge Luong had the authority to void Judge Gallagher's change of venue order. The answer to this question will depend on whether Judge Gallagher had the authority to issue the change of venue. As we stated before, this is the only issue briefed, argued, and presented to all the courts involved in this matter. The act of voiding Judge Gallagher's change of venue is only valid if Judge Gallagher acted outside his authority. Otherwise, the district judges of Harris County will have effectively negated another district judge's constitutional authority. Thus, the legal issues before this Court are best summarized in three parts:
We only deal with the authority to make the change of venue—not the place of venue. The latter question can only be appropriately addressed on direct appeal. See e.g., Gregory v. State , 37 S.W. 752, 752 (Tex. Crim. App. 1896) (finding that changes of venue based on the State's motion that "existing combinations and influences, exerted in favor of the defendant [would] prevent a trial alike fair and impartial to the state and the defendant" is discretionary and "cannot be revised by this court unless it is established beyond any question that the discretion of the court has been abused.").
Since the Texas Constitution gives state district court judges statewide authority and because there appears to be a clear distinction drawn between visiting judges and active/elected judges in Chapter 74:
(1) Does Chapter 74 require an active (currently elected) district judge to obtain the permission of the presiding judge of his/her administrative judicial region to "visit" in a region other than their own?
(2) If so, does that judge need to obtain an "order of assignment" from the presiding judge of his own administrative judicial region?
(3) And when there are conflicting assignment orders between the assigned judge's home region and the assigned region, which one prevails?
III. Standard of Review
When a court of appeals denies mandamus relief against a trial court, we review whether relator was entitled to relief against the trial court de novo. "A writ of mandamus is an extraordinary remedy that compels a respondent to perform some ministerial act."
In re State ex rel. Weeks , 391 S.W.3d 117, 122 (Tex. Crim. App. 2013) (orig. proceeding).
Smith v. Flack, 728 S.W.2d 784, 792 (Tex. Crim. App. 1987) ; see Tex. Const. art. V, § 5 (c).
To be entitled to mandamus relief, the relator must show there is no adequate remedy in law and that the sought-after act is ministerial in nature. The ministerial in nature prong "is satisfied if the relator can show he has a clear right to the relief sought—that is to say, when the facts and circumstances dictate but one rational decision under unequivocal, well-settled (i.e., from extant statutory, constitutional, or case law sources), and clearly controlling legal principles." A clear right to the relief sought exists "[w]hen a trial court acts beyond the scope of its lawful authority." Additionally, "an issue of first impression can qualify for mandamus relief when the principle of law is so plainly prescribed as to be free from doubt." "[I]f the terms of a statute are clear, the Court can address its application."
In re State ex rel. Weeks , 391 S.W.3d at 122.
In re State ex rel. Young v. Sixth Jud. Dist. Ct. App. , 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding) ; In re Meza , 611 S.W.3d 383, 388 (Tex. Crim. App. 2020) (orig. proceeding).
In re City of Lubbock , 666 S.W.3d 546, 553–54 (Tex. Crim. App. 2023) (orig. proceeding) (citing In re State ex rel. Ogg , 618 S.W.3d 361, 365 (Tex. Crim. App. 2021) (orig. proceeding) ).
In re State ex rel. Wice , 581 S.W.3d 189, 194 (Tex. Crim. App. 2018) (orig. proceeding) ; In re State ex rel. Weeks , 391 S.W.3d at 122.
In re State ex rel. Wice , 581 S.W.3d at 194.
The remedy for an improper venue change on any basis other than lack of authority or jurisdiction is direct appeal after a trial. Changes of venue protect a criminal defendant's right to a fair trial. Thus, absent a void order, appellate courts will only intervene if the defendant did not receive a fair trial in the new venue. Since the Code of Criminal Procedure leaves it up to the trial judge to be satisfied that a fair trial cannot be had in the originating county, we have concluded "it would be difficult to envisage a state of facts by which this court would be warranted in finding that an abuse of discretion occurred."
Cook v. State , 667 S.W.2d 520, 523 (Tex. Crim. App. 1984) (quoting Spriggs v. State , 163 Tex.Crim. 167, 289 S.W.2d 272, 273 (1956) ); Gregory v. State , 37 S.W. 752, 752 (Tex. Crim. App. 1896) (finding that changes of venue based on the State's motion that "existing combinations and influences, exerted in favor of the defendant [would] prevent a trial alike fair and impartial to the state and the defendant" is discretionary and "cannot be revised by this court unless it is established beyond any question that the discretion of the court has been abused.").
IV. The State's Raised Procedural Grounds
Before reaching the merits, the State argues that it wins because of two procedural reasons. First, the State contends that the Real-Party-in-Interest failed to timely object to Judge Gallagher's authority to preside over the case. Second, the State argues that the "law of the case" doctrine compels a favorable result. We disagree with the State on both arguments.
A. Objection Timeliness
First, the State contends that the Real-Party-in-Interest failed to timely object that Judge Gallagher lacked authority to rule on the change of venue motion. As a result, the Real-Party-in-Interest forfeited its right to object on this issue.
In Texas, courts have jurisdiction—the power over the subject matter and person, while judges have authority—the power to preside over a case. See Davis v. State , 956 S.W.2d 555, 557–60 (Tex. Crim. App. 1997) ("While our case law has called the authority of the judge to preside a jurisdictional issue, we now disavow that characterization, because as we have explained, jurisdiction or judicial power is vested in courts, not individuals."); see also Lackey v. State , 364 S.W.3d 837, 844–48 (Tex. Crim. App. 2012) (explaining that Appellant properly preserved his objection to the lack of authority of an appointed municipal court judge).
The rulings of a judge who lacks authority may be declared void or voidable depending on the underlying reason for their lack of authority. If a judge lacks the constitutional and statutory qualifications to be a judge, or if the judge is constitutionally or statutorily disqualified from hearing a case, then the underlying proceedings are deemed void. Davis , 956 S.W.2d at 559. It is as if the proceedings never occurred—the actions of the judge are a nullity. However, if the reason for the lack of judicial authority is a violation of statutory procedure, then the underlying proceedings are deemed voidable. Id. An objection is required for an appellate court to review a voidable proceeding. Id. (citing Miller v. State , 866 S.W.2d 243, 245–46 (Tex. Crim. App. 1993) ). Thus, the timeline of an objection is relevant for a voidable proceeding.
The challenged Assignment Order III (containing the latest expiration date) in the instant case could make the underlying proceedings voidable because it does not deal with Judge Gallagher's constitutional or statutory qualifications to be a judge. Rather, the case deals with a potentially voidable venue transfer order because Judge Gallagher may have lacked a proper procedural mechanism (an unexpired order assigning him to the region) to sit in Collin County when he granted the venue transfer motion.
The State argues that the Real-Party-in-Interest forfeited his right to object that Judge Gallagher lacked authority because the Real-Party-in-Interest had notice of Assignment Order III prior to Judge Gallagher granting a change of venue. The State points to an April 25, 2017 letter from Presiding Judge Murphy to the Real-Party-in-Interest's counsel, which stated in part:
Documents were delivered to you November 5, 2015 in response to your prior requests for information regarding Judge Gallagher's assignment to our region. Attached are additional copies of the documents we have that are responsive
to your current request.
App. to State's Petition for Writ of Mandamus, at Tab 29.
However, the December 21, 2015 Assignment Order III had not yet been made when the documents were delivered to the Real-Party-in-Interest on November 5, 2015.
There is nothing in the record that proves that the Real-Party-in-Interest had notice of the December 21, 2015 Assignment Order III before April 25, 2017. Subsequently, on May 10, 2017, the Real-Party-in-Interest filed the underlying "Paxton's Objection to Rulings Made by Judge Sitting by Expired Assignment and Motion to Return Case to Presiding Judge of the 416th District Court." Though the record is incomplete on this point, we will assume that the objection to Judge Gallagher's authority was timely.
Paxton App. , at *138–43; see App. to State's Petition for Writ of Mandamus, at Tab 30.
B. "Law of the Case" Doctrine
Second, the State also contends the "law of the case" doctrine requires treating the April 11, 2017 change of venue to Harris County as a valid order, because the Fifth Court of Appeals voided Judge Gallagher's rulings after he signed the venue transfer order. The Fifth Court of Appeals voided those orders pursuant to the Texas Code of Criminal Procedure because the Real-Party-in-Interest objected to Judge Gallagher continuing to preside over his case once it was transferred to Harris County.
See Tex. Code Crim. Proc arts. 31.05, 31.09.
However, the Fifth Court of Appeals opinion did not answer the question as to whether Judge Gallagher's rulings were void because Assignment Order III expired. We decline to apply the "law of the case" doctrine when the appellate court did not address the underlying question regarding this petition for writ of mandamus—whether Judge Gallagher had authority to grant the change of venue to Harris County on April 11, 2017.
V. The Law Granting Authority to Judges
Texas judges primarily derive their authority to preside as judges from two main sources: the Texas Constitution and a collective scheme of statutes known as the Court Administration Act. Now codified as Chapters 74 and 75 of the Texas Government Code, the Court Administration Act created additional categories of judges and statutory avenues to keep the judicial system functioning efficiently by means of judicial assignment to cases and courts. Texas created judicial regions in 1927 for this purpose. Each county falls under one of the eleven administrative judicial regions in Texas, with each region being headed by a regional presiding judge. The presiding judge of the region facilitates docket management within his region. A regional presiding judge may assign an active district judge to preside over a specific case in his region or to sit in a court and hear all matters. Thus, when a district judge is disqualified or recused, the regional presiding judge of that region has the authority to assign the case to themselves or another judge.
Tex. Const. art. V; Tex. Gov't Code , chapters 74, 75.
See Ex parte Holmes , 754 S.W.2d 676, 679 (Tex. Crim. App. 1988) ; Eucaline Medicine Co. v. Standard Inv. Co. , 25 S.W.2d 259 (Tex. Civ. App.—Dallas 1930, writ ref'd).
Tex. Gov't Code § 74.042 ; see Tex. Gov't Code §§ 74.046, 74.047.
See Tex. Gov't Code §§ 74.046, 74.047.
See Tex. Const. art. V, § 11 ; Tex. Gov't Code §§ 74.052(a), 74.056(a) –(b).
Tex. Gov't Code § 74.056(a) ; Tex. Gov't Code § 74.047 ; Tex. R. Civ. P. 18a, 18b ; see De Leon v. Aguilar , 127 S.W.3d 1, 5 (Tex. Crim. App. 2004) (affirming Arnold v. State , 853 S.W.2d 543, 544 (Tex. Crim. App. 1993) in holding that Tex. R. Civ. P. 18a and 18b apply in criminal cases).
The Texas Constitution and the Court Administration Act, however, apply differently to the different categories of judges. Thus, to examine how elected judges, such as Judge Gallagher, are lawfully empowered with authority, we first provide some needed context.
A. Types of Judges in Texas
The Court Administration Act provides four categories of judges—active, retired, former, and senior.
• "Active Judge" means a current judicial officeholder.
• "Former Judge" means a person who served as an active judge in a district ... but who is not a retired judge.
• "Retired Judge" means a retiree; or a person who served as an active judge for at least 96 months ... and has retired under the Texas County and District Retirement System.
• "Senior Judge" means a retired judge who has elected to be a judicial officer under Section 75.001.
B. Non-Active District Judges
As creations of statute, the authority to sit as a retired, former, or senior judge (also referred to as "visiting" judges) emanates from Chapters 74 and 75, not from the Texas Constitution. In contrast, elected (or "active") district court judges derive their statewide authority from both the Texas Constitution and/or Chapter 74, but not from Chapter 75. The categories and rules for "non-active visiting judges" of this the State fall under these two chapters and not the Constitution, because they no longer hold elected office.
C. Active District Judges
Elected district court judges first derive their authority from the Texas Constitution. Under Article V, Section 12, elected district judges are granted state-wide authority: "All judges of courts of this State, by virtue of their office, are conservators of the peace throughout the State." Second and supplemental to their constitutional authority, they may also be assigned to preside in any of eleven Administrative Judicial Regions in the State including their own region, by the presiding judge of one of those regions as found in Chapter 74 of the Texas Government Code.
Tex. Const. art V, § 12 (a). This express language extends back to the days of the Republic of Texas nearly unchanged. Repub. Tex. Const. art. IV, § 4, reprinted in 1 H.P.N. Gammel , The Laws of Texas 1822–1897, at 1074 (Austin, Gammel Book Co. 1898) ("The judges, by virtue of their offices, shall be conservators of the peace, throughout the republic."). This authority applies to the charging of an offense, by indictment or by information. Texas Code of Criminal Procedure Article 1.23 further echoes that all "judges of the District Courts, shall, by virtue of their offices, be conservators of the peace throughout the State." In addition to prosecutions, the Code of Criminal Procedure provision applies to writs and process. There are additional sources of an elected district judge's authority to act outside his home court. For example, district judges may sign warrants statewide.
Chapter 75 also applies to assignments of "visiting judges." But that Chapter only applies to "former" and "retired" judges as defined in Chapter 74.041—not elected-active judges.
D. The Authority For an Active District Judge to Preside in a Foreign Region 1. Authority under the Constitution
As "conservators of the peace throughout the State," Article V, Section 11 of the Texas Constitution empowers elected (active) district judges to preside in any district of the State when requested by one with the proper authority. Section 11 is specifically titled "DISQUALIFICATION OF JUDGES; EXCHANGE OF DISTRICTS; HOLDING COURT FOR OTHER JUDGES." The provision in question fully states:
See A. Scalia & B. Garner , Reading Law: The Interpretation of Legal Texts 221 (2012) (explaining that under the "Title-and-Headings Canon," the title or section of a statute or constitutional provision can aid in resolving intent of its framers); see also id. at 167 ("Context is a primary determinant of meaning.").
And the District Judges may exchange districts, or hold courts for each other when they may deem it expedient, and shall do so when required by law.
Tex. Const. art. V, § 11 (emphasis added).
While it is certainly possible to interpret the "exchange [of] districts" phrase as an even swap, the phrase in the constitution "or to hold courts for each other" does not require it. The title of the section emphasizes them as separate alternatives to each other. Moreover, the entire sentence has been construed liberally in long-standing precedent so as not to require a bench-for-a-bench exchange. This expansive provision traces its roots to the Republic of Texas which also espoused a flexible district judge with state-wide authority:
For instance, in Isaac v. State , 158 Tex.Crim. 540, 257 S.W.2d 436 (1953), we affirmed a judge's authority to sit on a foreign bench in which District Judge Frank McDonald of Hill County presided in place of District Judge Max Rogers in a Walker County district court. Nowhere did we require that Judge Rogers had to be presiding in Judge McDonald's district contemporaneously.
The Court of Criminal Appeals took an identical stance even prior to the Court Administration Act:
Under the Constitution of this State (article 5, § 11 ), district judges are authorized to exchange.... Whether at the time, Judge Carrigan was holding court of Judge Dickson or for some one else is not made apparent. We think it may often happen that a district judge, who has the care of a family and sometimes cares of business, is authorized, when in his judgement fairly exercised it is necessary for his own health or to care for the health of his family, ... to temporarily absent himself from his post of duty and by exchange, or by calling on the incumbent of an adjoining or adjacent district, provide the means for the continued holding of the court , and that no litigant in such case has a right to retire such exchanging judge from the bench.
Johnson v. State , 61 Tex.Crim. 104, 134 S.W. 225, 226 (1910) (emphasis added).
Consistent with this Court's ruling in the early 1900s, the Texas Supreme Court applied a liberal construction of the provision during that same time frame. See Munzesheimer v. Fairbanks , 82 Tex. 351, 18 S.W. 697, 697 (1891) (holding that a requested judge from a different district had authority under Article V, Section 11 to oversee a special term and sit in place of the judge of that district without a bench-for-bench exchange); see also Connellee v. Blanton , 163 S.W. 404, 405–06 (Tex. Civ. App.—Fort Worth 1913, writ ref'd) (finding authority Article V, Section 11 for a district judge from a foreign district to "hold court" for a native district judge's court without an exchange of benches).
[A]ny of the judges of the district courts are hereby authorized to hold the courts in any other district than their own, by arrangement with each other; and all judgements or proceedings before such judge shall be as good in law and equity, as if the court was held by the judge of the district."
Act approved Feb. 1, 1842, 6th Cong., R.S., § 1, 1842 Repub. Tex. Laws 85, reprinted in 2 H.P.N. Gammel , The Laws of Texas 1822–1897, at 757 (Austin, Gammel Book Co. 1898); see also Ex parte Holmes , 754 S.W.2d 676, 679–81 (Tex. Crim. App. 1988) (detailing the history of judicial assignments in Texas). The initially statutory ability of elected district judges to swap benches and "hold courts for each other" was incorporated into the Constitution of 1845 upon joining the Union, and has survived nearly unchanged to the present day. Tex. Const. of 1845 art. IV, § 14 ; Tex. Const. of 1861 art. IV, § 14 ; Tex. Const. of 1866 art. IV, § 12 ; Tex. Const. of 1869 art. V, § 11 ; Tex. Const. art. V, § 11.
Under the Texas Constitution, elected district judges have the ability to serve state-wide when properly requested.
2. Authority under Texas Government Code Chapter 74
On top of the broad Constitutional grant of authority to elected district judges, the Court Administration Act also provides a framework for the assignment of judges to cases or courts. Judges (including active district judges) "may be assigned in the manner provided by this chapter to hold court when necessary to dispose of accumulated business in the region." And a judge assigned under the Court Administration Act "has all the powers of the judge of the court to which he is assigned."
The Court Administration Act also provides several ways for a judge to be assigned. Chapter 74 allows the regional presiding judge of the administrative judicial region to assign a judge (including active district judges) to a district court or a specific case in his region. This explicit power exists in addition to the broad authority of a regional presiding judge to effectuate and "improve the management of the court system and the administration of justice." A judge may also be assigned to a specific case or court in any region by the Chief Justice of the Supreme Court of Texas.
Tex. Gov't Code § 74.047.
3. Chapter 74 and District Judges
The Court Administration Act, however, does not apply to active district judges the same way it applies to non-active judges. Because active district judges have been elected in accordance with the Constitution, many of the rules in Chapters 74 that specifically apply to non-active or visiting judges are not applicable. For example, there is no requirement for an active district judge to have been on the bench for 96 months in order to be assigned to another court or region in the State. Regional presiding judges are required to keep a list of those eligible to serve as visiting judges; elected district court judges are not on those lists. And even if non-active visiting judges meet all of the qualifications to be on that list, regional presiding judges are granted the discretion to assign, or not to assign, those on that list under Chapter 74.
Although regional presiding judges may elect not to assign active judges within their own region, nothing in the Texas Constitution or Chapters 74 and 75 allows them to prevent active judges from presiding in other districts or regions when requested by one with proper authority such as another district court judge or another regional presiding judge. If the State Commission on Judicial Conduct has taken certain types of action against non-active judges, they are not eligible to sit in a visiting capacity; whereas sitting elected judges may continue to act in their elected judicial positions, accept assignments, or exchange benches, or hold courts for each other. Parties may object to visiting judges in many cases, but not so for elected judges. Elected judges cannot be required to sit by "assignment" outside of their elected court for more than ten calendar days per year without their consent. Thus, while a non-active or visiting judge's authority beings and ends with the Court Administration Act, an active district judge's authority continues under the Constitution even where their Chapter 74 authority ends.
Tex. Const. art. V, § 11.
See Tex. Gov't Code § 74.055(f).
4. Requirements from the Home Region's Presiding Judge
Having established the multiple ways an active district judge is empowered to preside in a foreign district or region, the next question is whether an assignment order by his home region's presiding judge is needed. In short, neither the Constitution nor the Court Administration Act requires it.
See Tex. Const. art. V, § 11 ; Tex. Gov't Code § 74.056.
It is axiomatic in our system of government that the Constitution always remains supreme. Thus, the broad power granted by the Constitution to district judges may not be taken away by statute. The Legislature may fill the silent gaps of a constitutional power; but they may not limit that power unless it is clearly contemplated by the Constitution. Only a constitutional force may negate a constitutional force.
See In re State ex rel. Wice , 629 S.W.3d at 731 (Goodman, J., concurring & dissenting).
Statutes with the same purpose or object must be read together harmoniously and read under a constitutional interpretation when possible. Diruzzo v. State , 581 S.W.3d 788, 799 (Tex. Crim. App. 2019) (citing A. Scalia & B. Garner , Reading Law: The Interpretation of Legal Texts 80 (2012)); State v. Vasilas , 253 S.W.3d 268, 272–73 (Tex. Crim. App. 2008). "In enacting a statute, it is presumed that: (1) compliance with the constitutions of this state and the United States is intended; (2) the entire statute is intended to be effective; ... (4) a result feasible of execution is intended ...." Tex. Gov't Code § 311.021.
Since the Constitution was adopted in 1876, this Court has repeatedly relied on Article V, Section 11 as the source of power for district judges to preside in another court anywhere in the State. Half a century ago, Presiding Judge Onion of this Court said:
The expression "whenever they deem it expedient," as utilized in both constitutional and statutory provisions confers on district judges broad discretionary powers to exchange benches, or hold court for each other, which is reviewable only if an abuse of discretion has occurred. Although the better practice would require one, the exchange may be accomplished without the necessity of a formal order or entry on the record of the reasons for such exchange.
Floyd v. State , 488 S.W.2d 830, 832 (Tex. Crim. App. 1972).
Thus, this Court has repeatedly held that no formal order is needed for an elected district judge to preside over a different district court. Our civil brethren, also beholden to the same Constitution, have arrived at the same conclusion.
See Davila v. State , 651 S.W.2d 797, 799 (Tex. Crim. App. 1983) ("It is not necessary that a formal order be entered for the judge of one district court to preside over a case in place of a duly elected judge, nor is it necessary for the docket sheet or minutes to show the reason for the exchange of benches by district judges."); Floyd , 488 S.W.2d at 831–32 ; Pendleton v. State , 434 S.W.2d 694, 697 (Tex. Crim. App. 1968) ("No formal order need be entered for the judge of one district court to preside over a case in the place of a duly elected judge."); Isaac v. State , 158 Tex.Crim. 540, 257 S.W.2d 436, 437–38 (1953) ("Judge McDonald being at the time the regularly elected judge of the 66th Judicial District of this State, and not a ‘special judge,’ was authorized to preside for Judge Rogers without the necessity of the entry of a formal order."); Richardson v. State , 154 Tex.Crim. 422, 228 S.W.2d 179, 180–81 (1950) ("Moreover, Judge Morrison, being a District Judge, derived his authority to preside in such court under the provisions of Art. V, Sec. 11, of the Constitution of Texas ....").
In re Commitment of Burd , 612 S.W.3d 450, 459 (Tex. App.—Houston [1st Dist.] 2020, pet. denied) ("No formal order is needed for an exchange or transfer to take place." (citing Pinnacle Gas Treating, Inc. v. Read , 160 S.W.3d 564, 566 (Tex. 2005) (per curiam) )); European Crossroads’ Shopping Ctr., Ltd. v. Criswell , 910 S.W.2d 45, 51 (Tex. App.—Dallas 1995, writ denied) ("The trial court may exchange or transfer a case on its own initiative. Exchange or transfer does not require a formal order. The minutes of the court do not need to show the reason for the exchange."); Ex parte Lowery , 518 S.W.2d 897, 901 (Tex. Civ. App.—Beaumont 1975, no writ) ("Further, we concede that such an exchange may be effected upon the judges’ own initiative and that the making and entry of a formal order is not required nor does the reason for the exchange need be shown in the minutes."); Baldwin v. Leonard , 110 S.W.2d 1160, 1161 (Tex. Civ. App.—Eastland 1937, writ dism'd) ("[A]n exchange of districts may be effected upon the judges’ own initiative, or as the result of a request of one of the judges. The making and entry of a formal order declaring the exchange of districts by the judges is not required; nor is it essential that the docket or minutes show a reason for the exchange." (citing 25 Tex. Jur. p. 346, § 96)); Marx v. Weir , 61 Tex.Civ.App. 520, 130 S.W. 621, 621–22 (1910, writ ref'd) (affirming and stating: "The provisions of the Constitution [Section 11, art. V ] need no construction and furnish a complete answer to appellant's contention" where the record was silent as to the reasons and "there was no exchange of districts between said [elected] judges").
Furthermore, nothing in Section 74.056 dictates a formal order is required when assigning an elected judge to another region. The language of the Court Administration Act suggests that an assignment order to another region from the home region is preferable, but never explicitly mandates it:
Tex. Gov't Code 74.056 ; see Assignment Order I ; Assignment Order III (citing to Tex. Gov't Code 74.056 ).
(a) A presiding judge from time to time shall assign the judges of the administrative region to hold special or regular terms of court in any county of the administrative region to try cases and dispose of accumulated business.
(b) The presiding judge of one administrative region may request the presiding judge of another administrative region to furnish judges to aid in the disposition of litigation pending in a county in the administrative region of the presiding judge who makes the request.
Tex. Gov't Code § 74.056 (emphasis added).
"May" is permissive in nature—not mandatory. Thus, a formal order or request is not required. Nevertheless, even if the statute required a formal order, the supreme nature of the Constitution would invalidate it as applied to active district judges.
Furthering the observations above, the Constitution explains that another district judge may hold court for another judge "when deemed expedient." The statute may not block said expediency in the name of administrative efficiency. It is perhaps desirable for administrative purposes, but it is not constitutionally nor statutorily required that regional presiding judges issue orders to active district judges assigning them to other regions or courts.
Tex. Const. art. V, § 11.
See Floyd v. State , 488 S.W.2d 830, 832 (Tex. Crim. App. 1972) ("Although better practice would require one, the exchange may be accomplished without the necessity of a formal order or entry on the record of the reasons for such exchange.").
Significant portions of Chapters 74 and 75 cover administrative matters related to all judges assigned in jurisdictions other than their own. Those matters include compensation for the actual judicial work, reimbursement for travel expenses, hotels, per diem, etc. All of these matters require a "paper-trail" for the promotion of the orderly and efficient administration of justice. While this paper-trail may be necessary to compensate and reimburse judges for the work they do, it has nothing to do with granting authority to assigned judges to preside over cases, except where a judge's authority is derived solely from statute. The Court Administration Act, like all statutes, can only add—and never detract—to the grants of authority under the Constitution. Thus, if an elected district judge does not need his home region's presiding judge's permission under the Constitution, he certainly does not need it under Chapter 74.
In Richardson v. State , 154 Tex.Crim. 422, 228 S.W.2d 179 (1950), we affirmed a judge's authority to sit by assignment in a foreign administrative judicial district. There an active district judge from the First Administrative Judicial District was assigned to a court by the regional presiding judge for the Third Administrative Judicial District. This Court held that District Judge Morrison of the Third Administrative Judicial District was statutorily authorized to preside over the case by assignment. "Moreover, Judge Morrison, being a District Judge, derived his authority to preside in such court under the provisions of Art. V., Sec. 11, of the Constitution of Texas ...." Richardson , 228 S.W.2d at 180–81.
Our civil jurisprudence has reached the same conclusion regarding the double layers of authority with equal state-wide binding stature. Eucaline Medicine Co. v. Standard Inv. Co. , 25 S.W.2d 259, 262–63 (Tex. Civ. App.—Dallas 1930, writ ref'd) (finding with Texas Supreme Court precedential authority that an elected district judge—statutorily assigned to another district court by the regional presiding judge of that judicial region—also had constitutional power under Article V, Section 11 to hold court for another judge).
Id.
E. Rule for Active District Judges
Harmonizing our constitutional text, statutory language, and our case law once more, we reaffirm the following on when an elected district judge may sit in another Texas district court. We find once again that, in addition to the district in which they innately preside, duly elected district judges (active district judges) have constitutional authority to sit on any bench in any region in the State outside their home region provided they have been requested by the presiding authority for that bench in that region.
While it is this Court's prerogative to alter our case law in all criminal matters, changing course after nearly a century would create a conflicting constitutional interpretation with our co-equal Texas Supreme Court on the civil side. Richardson v. State , 154 Tex.Crim. 422, 228 S.W.2d 179 (Tex. Crim. App. 1950) ; Eucaline Medicine Co. v. Standard Inv. Co. , 25 S.W.2d 259 (Tex. Civ. App.—Dallas 1930, writ ref'd).
The Court of Appeals's majority opinion cited to four cases in its section expounding upon the authority granted by an assignment order. In re State ex rel. Wice , 629 S.W.3d 715, 725 (Tex. App.—Houston [1st Dist.] 2021, orig. proceeding). Unlike this case, those cases do not deal with an active district judge possessing constitutional authority in addition to authority under Chapter 74. In re Republic Parking System, Inc. , 60 S.W.3d 877 (Tex. App.—Houston [14th Dist.] 2001, orig. proceeding) (concerning former court of appeals justice serving as visiting judge); Mangone v. State , 156 S.W.3d 137 (Tex. App.—Fort Worth, 2005, pet. denied) (dealing with a visiting judge); In re Richardson , 252 S.W.3d 822 (Tex. App.—Texarkana 2008, orig. proceeding) (regarding senior judge serving as visiting judge); Hull v. South Coast Catamarans, L.P. , 365 S.W.3d 35 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (dealing with a visiting judge).
Additionally, the Court of Appeals’ majority relies on Roberts v. Ernst , 668 S.W.2d 843 (Tex. App.—Houston [1st Dist.] 1984, no pet.) to conclude no exchange of benches occurred. Justice Goodman explains that "Roberts stands for the commonsense principle that an exchange of benches cannot exist, or be implied from an expired assignment, when the facts definitively show that one judge is interfering with the rightful authority of another. This principle has no applicability here, given that Gallagher was the lone judge presiding over these cases when he transferred them to Harris County." In re State ex rel. Wice , 629 S.W.3d at 730 (Goodman, J., concurring & dissenting). We also note, that Roberts does not deal with any orders assigning a judge to another region, but rather a couple of competing assignment orders by the regional presiding judge to the same district court in his region.
See Tex. Const. art. V, § 11 ("And the District Judges may exchange districts, or hold courts for each other when they may deem it expedient, and shall do so when required by law.").
Regional presiding judges have the authority to assign a judge to any bench in his region under Chapter 74. They do not and cannot detract from an active district judge's constitutional authority that may be exercised at that judge's discretion. Thus, once properly requested by one with authority and until the invitation by the requesting authority is revoked, no other judge can constitutionally prohibit, remove, or deauthorize a qualified active district judge from sitting outside their district—even where that bench is in a foreign region of the State. The only circumstances that would allow for any such limitations include the aforementioned revocation of the request, recusal, disqualification, the active district judge's objection and request for relief from such an assignment, or that the parties do not consent to the judge following a change of venue. VI. Discussion
See Tex. Gov't Code § 311.021 ; see Tex. Const. art. V, § 11 ; cf. Marbury v. Madison , 5 U.S. 1 Cranch 137, 177, 2 L.Ed. 60 (1803) ("Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.").
See Tex. Const. art. V, §§ 7 (d)–(e), 11.
See Tex. Const. art. V, § 11 ("No judge shall sit in any case wherein the judge may be interested, or where either of the parties may be connected with the judge, either by affinity or consanguinity, within such a degree as may be prescribed by law, or when the judge shall have been counsel in the case .... When a judge of the District Court is disqualified by any of the causes above stated, the parties may, by consent, appoint a proper person to try said case; or upon their failing to do so, a competent person may be appointed to try the same in the county where it is pending, in such manner as may be prescribed by law."); see also Tex. Gov't Code § 74.060(a) ("An active judge may not, without the judge's consent, be assigned out of the judge's district or county for more than 10 calendar days in a year."); Tex. Code Crim. Proc. art. 31.09(a) (requiring consent of the parties before a judge can continue to preside over a case after ordering a change of venue).
As applied here, Judge Oldner was an active district judge of the 416th District Court in the First Administrative Region. Duly assigned to the instant case, Judge Oldner recused himself from hearing the Real-Party-in-Interest's case and referred the case to his home region's presiding judge of the administrative region including Collin County—Presiding Judge Murphy. At this point, it was unmistakable and undisputed that Presiding Judge Murphy had authority to make an assignment over the case. Presiding Judge Murphy assigned Judge Gallagher (the elected judge for the 396th District Court in Tarrant County) to the 416th District Court to specifically hear the Real-Party-in-Interest's case. Presiding Judge Murphy made this assignment to be effective without a time limit consistent to and within her discretionary authority as a regional presiding judge.
Tex. R. Civ. P. 18a, 18b ; see Tex. Gov't Code § 74.058 (b) (empowering a regional presiding judge to relieve a judge of an assignment on presentation of "good cause"); Tex. Gov't Code § 74.047 (empowering a regional presiding judge to "perform the acts necessary to carry out the provisions of this chapter [Ch. 74] and to improve the management of the court system and the administration of justice"); Tex. Gov't Code § 74.056 (empowering a regional presiding judge to assign judges "to try cases and dispose of accumulated business").
The assignment from the presiding judge of the region covering Collin County was sufficient to grant Judge Gallagher, an active judge, the requisite authority under the Constitution to sit in the case. This assignment to hear the Real-Party-in-Interest's case was never revoked by Presiding Judge Murphy. Nor did Judge Gallagher seek relief of the assignment.
Assignment Order II. There is nothing in the record to suggest that Presiding Judge Murphy revoked Judge Gallagher's assignment to hear the Real-Party-in-Interest's case.
Id. ; Tex. Gov't Code §§ 74.058, 74.060(a).
While the order transferring Judge Gallagher to another region expired (Assignment Order III ), no assignment order from Judge Gallagher's administrative judicial region was ever required because Judge Gallagher was an elected judge. As an active district judge, Judge Gallagher had constitutional authority to sit in any district court across the state, provided another district judge, regional presiding judge, or the Chief Justice requested him. Here, Presiding Judge Murphy provided the keys to the 416th District Court to preside over the Real-Party-in-Interest's case.
Continuing beyond the expiration date of the assignment order from Judge Gallagher's home region had only one effect: Judge Gallagher was no longer statutorily obligated to preside over the instant case. Nevertheless, Judge Gallagher, as an active district judge, maintained his constitutional power to continue presiding over the case so long as he was willing and the First Administrative Judicial Region's presiding judge remained willing.
Again, we note that the email exchange between the administrative assistants for the regional presiding judges of the First and Eighth Administrative Judicial Regions demonstrate an intent for Judge Gallagher to continue to be assigned to the First Administrative Judicial Region past January 2017. They suggest that both regional presiding judges correctly understood that an additional extension order was not needed for the First Administrative Judicial Region to continue to retain Judge Gallagher on the case.
Because Presiding Judge Murphy assigned Judge Gallagher to specifically hear the Real-Party-in-Interest's case, no further formal order transferring Judge Gallagher from the Eighth Administrative Judicial Region to the First Administrative Judicial Region was necessary to grant Judge Gallagher the authority to sit in the 416th District Court. Judge Gallagher was properly requested by one with authority in Collin County—Presiding Judge Murphy. While the order signed by Judge Evans may have facilitated other administrative matters related to Judge Gallagher's assignment in Collin County, the assignment order could not, by itself limit the underlying authority of the elected district judge from sitting in another court. Indeed, there is nothing in the language of 74.056(b) that requires any order of assignment from an elected judge's home region's presiding judge to another region. Moreover, there is nothing in the record to suggest that Judge Gallagher was constitutionally or statutorily disqualified from sitting as a judge on the 416th District Court. And there is nothing to suggest that Presiding Judge Murphy revoked Judge Gallagher's invitation to a court within Presiding Judge Murphy's administrative region.
Judge Gallagher had authority to sit in the 416th District Court to preside over the Real-Party-in-Interest's case when he issued the venue transfer order on April 11, 2017. To hold otherwise, would erroneously limit the constitutional statewide authority vested in duly elected district court judges by the Texas Constitution. Moreover, it would require this Court to interpret 74.056 in such a way that an elected district court judge would have to obtain the permission of his regional presiding judge to sit in another region when requested to do so by one in authority. Simply put, the statute does not say that and even if it did, it could not override that constitutional authority conferred upon elected district judges.
Real-Party-in-Interest's arguments are predicated on the condition that Judge Gallagher was a visiting judge. We note that Real-Party-in-Interest's arguments (that Judge Gallagher's assignment by Presiding Judge Evans was temporally restricted) relied on case law dealing with visiting judges—not active district judges. However, Judge Gallagher was not a "visiting judge" as the law defines him. For the purposes of Chapter 74, he was an "active district judge," and constitutionally, a "conservator of the peace throughout the state."
In his dissent, Judge Yeary asserts that the Court is mistaken for our incorrect focus and that we have "no good reason[s]" for conditionally granting mandamus today. But it is never a judicial sin to follow the Constitution and the rule of law. And mandamus must at least be appropriate when a judge, over a party's objection, ignores the Constitution.
Judge Gallagher's order changing venue to Harris County is a valid order. As we have said before, venue, unlike jurisdiction is waivable. Here, the parties clearly waived any objections under Article 31.02 and consented to a non-adjacent county. Therefore, Judge Gallagher had the discretion as a judge with constitutional and statutory authority to change venue to Harris County even though it is a non-adjacent county. And the Constitution requires more than mere disagreement to void the rulings of one of its judges acting within their discretion.
We have been criticized that the venue change order was correctly voided because Judge Johnson and Judge Luong may have thought Judge Gallagher was outside his authority by failing to choose the appropriate venue under statute.
But first, what Judge Johnson and Judge Luong may have thought is not in the record. This is pure speculation. And assertions "not supported by evidence in the record will not be considered" on review. Franklin v. State , 693 S.W.2d 420, 431 (Tex. Crim. App. 1985). Making arguments not made by the parties in a case such as this comes dangerously close to advocacy. And this Court is constitutionally required to remain separate from such a role.
Second, even if we were to entertain the above argument, it would still not entitle any judge to void Judge Gallagher's change of venue order. By claiming his choice of venue was erroneous, this argument implicitly concedes that the predicate decision to change venue was completely valid.
Ex parte Watson , 601 S.W.2d 350, 351 (Tex. Crim. App. 1980). Judge Yeary states that he is "concerned" that "the Court might unwittingly be establishing a rule permitting venue-by-consent in all cases ...." J. Yeary's Dissent at 695. Most rights—even those established in the U.S. Constitution, such as the Fourth Amendment—are waivable by express consent. See Proenza v. State , 541 S.W.3d 786, 792 (Tex. Crim. App. 2017) (discussing category-one, -two, and -three Marin rights). As we explained in Proenza and Marin , that is how rights work. Courts should generally not interfere with the free choice of the parties absent an objection or issue of fundamental fairness. Only those rights recognized as fundamental or systemic to the fair administration of justice (category-one Marin rights) can never be waived. And as we have clearly established in Ex parte Watson , venue is not a category-one Marin right: "Unlike jurisdiction, venue may be acquired by consent." Ex parte Watson , 601 S.W.2d 350, 351 (Tex. Crim. App. 1980) ; see id. at 352 ("It is apparent from above that, strictly as a matter of jurisdiction, a district court may try any case in which the offense takes place within the State. Of course in a given case venue may not be proper under the provisions of Chapter 13 of the Code of Criminal Procedure. The failure to comply with those provisions, however, does not deprive the district court of jurisdiction. Ultimately, whether the provisions of Chapter 13 are enforced depends on whether the defendant asserts his rights under those provisions. We conclude that the trial court in this case had jurisdiction of the cause even if venue were improper.").
"Indeed, the law of invited error estops a party from making an appellate error of an action it induced." Druery v. State , 225 S.W.3d 491, 506 (Tex. Crim. App. 2007) (internal quotes omitted).
Judge Yeary claims that the State still has a remedy and therefore, mandamus is inappropriate. He claims the State could simply file another motion to change venue in Collin County. However, his proposed remedy is no remedy at all. Under the wrong set of circumstances and judicial rulings, it could lead to an infinite loop of venue changes before an appropriate venue is identified. The core right protected by venue change procedures is the right to a fair trial for both the State and defendant. See U.S. Const. amend. VI ; Tex. Code Crim. Proc. art. 2.03 (b) ("It is the duty of the trial court, the attorney representing the accused, the attorney representing the state and all peace officers to so conduct themselves as to insure a fair trial for both the state and the defendant, ...."). The protections we have in place to ensure this core right would be undermined under the proposed remedy.
Thus, the act of voiding Judge Gallagher's valid order was clearly unlawful because it violated Judge Gallagher's judicial authority flowing from both the Texas Constitution and our statutes. Nevertheless, because one of the parties objected to Judge Gallagher presiding over the case after the change of venue was granted, Judge Gallagher was properly replaced following his order to change venue.
As we stated above, when there is no adequate remedy at law, a clear right to mandamus relief exists "[w]hen a trial court acts beyond the scope of its lawful authority." In re City of Lubbock , 666 S.W.3d 546, 553–54 (Tex. Crim. App. Feb. 8, 2023) (orig. proceeding) (citing In re State ex rel. Ogg , 618 S.W.3d 361, 365 (Tex. Crim. App. 2021) (orig. proceeding) ).
Conclusion
We have previously held that mandamus relief can be warranted "when the issue involves an unambiguous statute [and constitutional provisions], or when ‘the combined weight of our precedents clearly establishes’ the proposition of law on which relief is predicated." In this case, mandamus is clearly warranted because of what is bindingly dictated by all three—the second stretching centuries since its Republic of Texas inception, and the other two just shy of one.
In re Meza , 611 S.W.3d 383, 389 (Tex. Crim. App. 2020) (first citing In re State ex rel. Wice v. Fifth Jud. Dist. Ct. App. , 581 S.W.3d 189, 194–95 (Tex. Crim. App. 2018) (orig. proceeding), and then citing In re State ex rel. Weeks , 391 S.W.3d 117, 126 (Tex. Crim. App. 2013) (orig. proceeding) ).
The standards we use to judge will inevitably be applied against us. Thus, even the noblest of goals, no matter how righteous, cannot justify improper means. It leads away from the enlightened order provided under the rule of law. Today we fulfill our duty by upholding our Constitution's rule of law and affirming the wisdom of its framers. Thus, Judge Gallagher had constitutional and statutory authority to preside when he ordered the change of venue to Harris County. The district court in Harris County had no authority to void it. We conditionally grant the State's petition for writ of mandamus. The writ of mandamus will issue only in the event that the courts below fail to comply with this opinion.
See Paine, Thomas , The American Crisis (Dec. 23, 1776) ("THESE are the times that try men's souls. The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of their country; but he that stands by it now, deserves the love and thanks of man and woman. Tyranny, like hell, is not easily conquered; yet we have this consolation with us, that the harder the conflict, the more glorious the triumph. What we obtain too cheap, we esteem too lightly: it is dearness only that gives every thing its value. Heaven knows how to put a proper price upon its goods; and it would be strange indeed if so celestial an article as FREEDOM should not be highly rated.").
Slaughter, J., filed a concurring opinion in which Richardson, Newell, and McClure, JJ., joined.
Keller, P.J., filed a dissenting opinion in which Keel, J., joined.
Yeary, J., filed a dissenting opinion.
CONCURRING OPINION
Slaughter, J., filed a concurring opinion in which Richardson, Newell, and McClure, JJ., joined.
I agree with and join the Court's opinion. I write separately, however, to address Judge Yeary's misguided but surely well-meaning dissenting opinion. Judge Yeary's misunderstanding of the issues here has led to him arguing two points: (1) the Court's opinion is wrong because it focuses on the wrong question; and (2) mandamus is improper because there is an available adequate remedy at law. J. Yeary's Dissent at 688, 690–91. I disagree as to each point for the following reasons.
I. The Court properly frames the issue raised on mandamus.
Judge Yeary declares that the "real question" before the Court is whether either of the two Harris County district judges (Judges Johnson and Luong) "had any authority at all to send the case back to Collin County." Id. at 688. He further states that the Court must "focus its attention on the action of the respondent [Harris County district judges]," and "should not focus narrowly on the respondent's stated reason for its action or inaction." Id. at 690. Yet, Judge Yeary (at least in the first part of his opinion) seems to identify the relevant "action" of the Harris County district judges as "sending the case back to Collin County." Id. at 690 n.2.
Contrary to Judge Yeary's assertion, the underlying issue before this Court has nothing to do with whether the Harris County district judges had some sort of authority, from any source, to transfer venue back to Collin County. Neither Harris County district judge was ever asked by any party to transfer venue. Had one of the parties filed a motion asking the Harris County district judges to transfer venue back to Collin County, I doubt a mandamus action would have been filed because a judge's decision on a motion to transfer venue would be reviewable on direct appeal thereby precluding mandamus relief. But, in any event, on mandamus, we must address what actually happened and not deal in hypotheticals. The only motion filed and decided that led to this mandamus action was a motion filed by Real-Party-in-Interest Paxton's attorneys "to set aside as void" Judge Gallagher's venue transfer order. The only relief sought in that motion was to declare that Judge Gallagher, at the time he transferred venue to Harris County, did not have jurisdiction to issue the venue transfer order, thereby making his order void. Judge Johnson granted the motion and, after the case was transferred to Judge Luong, he adopted Judge Johnson's ruling. No party filed a motion in Harris County to transfer venue back to Collin County, nor did anyone ask Judge Johnson to exercise discretion to affirmatively send the case back to Collin County. Therefore, the only action taken by Judge Johnson (and then Judge Luong) was to vacate as void for lack of jurisdiction Judge Gallagher's venue transfer order. The effect of Judge Johnson's action was essentially to undo Judge Gallagher's order, reverse the timeline, and make it as if Judge Gallagher had never transferred venue to Harris County. Thus, Judge Johnson's action was not to "send" the case back to Collin County. His action was to improperly void the order of another district judge. And that is precisely the action that the Court's opinion correctly addresses.
Moreover, nothing about Judge Johnson's actions involved him affirmatively deciding (or even being asked to decide) whether Collin County was the proper venue for the case. So again, Judge Johnson did not decide to "send the case back to Collin County." J. Yeary's Dissent at 688.
Tex. Const. art. V, § 11.
The Court observes that "Real-Party-in-Interest claimed Judge Gallagher had no authority to preside over the case because the orders from the regional presiding judge of the Eighth Administrative Judicial Region had expired." Majority Opinion at 665, n.1. "That sole issue[,]" it says, "was raised in motions before two district judges in Harris County, the First Court of Appeals, and on mandamus before our Court." Id. And apparently from that, the Court draws the conclusion that "[a]ny other grounds are not mentioned in the record[,]" and that "[w]hat either Judges Johnson or Luong might have been thinking is pure speculation." Id.
My response is that this is not a direct appeal, and in this case we are not exercising our power of discretionary review. This case involves a request for mandamus relief—invoking our original authority to grant extraordinary relief. Tex. Const. art. V, § 5 (c). It does not involve a request from Real Party in Interest to do what the Harris County Judges have already done—to send this case back to Collin County. It is a request by Relator to overturn that decision —one that has already been made, by two different judges—before it can be carried out, and before any appeal from a judgment can be had.
In cases like this, the proper approach is not to focus exclusively on what the parties have argued before the trial court judge to support the entry of the challenged order. Here, Relator has the burden to prove that there is no valid legal argument that would justify the trial court's actions—that the trial court judge whose order is challenged simply had no discretion to do or to refrain from doing the action being complained about. There must be only one right action or refusal to act and the trial court must have done or not done it. The burden is upon the petitioner to negate by affirmative allegation and prove every fact or condition which would have authorized the public official to take action sought to be enforced upon him. See Wortham v. Walker , 133 Tex. 255, 279, 128 S.W.2d 1138, 1151 (1939) ("The office of mandamus is to execute, not adjudicate. It does not ascertain or adjust mutual claims or rights between the parties."); see also State ex rel. Wade v. Mays , 689 S.W.2d 893, 898 (Tex. Crim. App. 1985) ("[A]n extraordinary writ is an order directing a public official to perform a duty exacted by law and will not issue to enforce a duty that is to any degree debatable.").
This principle seems to mirror to some degree, in my view, the way we often treat rulings by trial courts in other situations. This Court has described in other contexts what it has called the "right ruling, wrong reason" doctrine. Martell v. State , 663 S.W.3d 667, 672 (Tex. Crim. App. 2022). The principle of that doctrine seems to be that, in circumstances controlled by the doctrine, the Courts are "required to uphold [a] trial court's ruling on any applicable legal theory." Id. If, in the context of a direct appeal, such a principle can be applied, it certainly should apply in the context of mandamus proceedings where "[t]o obtain extraordinary relief, [a] [r]elator must show that ... what he seeks to compel or prohibit is ministerial, involving no discretion." In re State ex rel. Best , 616 S.W.3d 594, 599 (Tex. Crim. App. 2021). I consider it my duty, then, and the duty of the Court as well, to examine any argument , even one that the parties have avoided, that would support the trial judges’ challenged actions.
II. There is no adequate remedy at law for a judge improperly declaring that the valid order of another judge is void.
Judge Yeary argues that mandamus is also inappropriate here because the State had an adequate remedy at law, namely, filing an additional venue transfer motion in Collin County. J. Yeary's Dissent at 690-91. But how exactly does that fix the problem at issue here with respect to Judge Johnson improperly vacating as void a proper and legitimate order of another district judge who had jurisdiction? It doesn't. A new venue transfer motion does not directly address, nor does it provide relief for, the true issue at hand.
Judge Yeary posits that "[t]here is simply no good reason for this Court to exercise our extraordinary mandamus authority to compel a result with regard to venue at this time." Id. at 691. But again, this framing of the issue misses the mark. This Court is not deciding at this juncture whether Harris County or Collin County or some other county is the proper venue. We are simply deciding the narrow issue presented to us—whether Judge Gallagher had jurisdiction at the time he issued the venue transfer order such that his order was valid and not subject to being vacated by another district judge. Whether venue is proper in Harris County is an issue that can ultimately be challenged on direct appeal.
See, e.g. , Gonzalez v. State , 222 S.W.3d 446, 449 (Tex. Crim. App. 2007).
See Sanchez v. State , 365 S.W.3d 681 (Tex. Crim. App. 2012) ("district court judges are allowed to exchange benches without geographical restrictions"); Randel v. State , 153 Tex. Crim. 282, 296, 219 S.W.2d 689, 697 (1949) ("The expression, ‘when they deem it expedient,’ as contained in the constitution and in the statute above mentioned, confers upon district judges broad discretionary powers to exchange benches or hold court for each other. No limitation as to time, place, or occasion when the exchanges of benches might occur has been fixed."). But see Pinnacle Gas Treating, Inc. v. Read , 160 S.W.3d 564, 566 (Tex. 2005) ("the right of district judges to exchange benches assumes that they already have concurrent jurisdiction over the same cases in a common county").
Judge Johnson was originally assigned to this case in Harris County. On June 25, 2020, Judge Johnson signed an order sending the case back to Collin County. On June 30, 2020, Relator filed an application for mandamus relief in the First Court of Appeals asking that Court to order Judge Johnson's June 25th order to be vacated. Then, on July 6, 2020, Judge Johnson signed an order voluntarily recusing himself from the case.
On July 15, 2020, this case was reassigned at the district court level from Judge Johnson to Judge Luong. And then, on July 28, 2020, the First Court of Appeals abated the case to allow Judge Luong an opportunity to reconsider Judge Johnson's original order sending the case back to Collin County. Having regained authority over the case by virtue of the First Court of Appeals’ abatement order, Judge Luong signed an order on October 23, 2020, finding that Judge Johnson's June 25th order effectively transferred the case back to Collin County and that his plenary jurisdiction to reconsider that order had expired, depriving him of jurisdiction over the case. But Judge Luong added that, if the First Court of Appeals disagreed with him about his jurisdiction over the case, Judge Gallagher's order transferring the case to Harris County "should be set aside" and the case should be transferred back to Collin County. In re State ex rel. Wice , 629 S.W.3d 715, 720 (Tex. App.—Houston [1st Dist.] 2021).
Judge Yeary's final point is his claim that Judge Gallagher lacked the authority to transfer the case to Harris County. Id. at 691-92. This argument is fully addressed by the Court's opinion, and so I do not feel the need to address it here beyond saying that I agree wholeheartedly with the Court's analysis and resolution of this issue.
With these comments, I unreservedly and fully join the Court's opinion. DISSENTING OPINION
Keller, P.J., filed a dissenting opinion in which Keel, J., joined.
A district judge in Collin County recused himself from this case without agreeing to have another judge hold court for him. The presiding judge of a different administrative region then entered an order furnishing a new judge (Judge Gallagher), for a specific time period, to the region encompassing Collin County. The presiding judge of the Collin County region then appointed Judge Gallagher to this case. But the time authorized by the order from Judge Gallagher's presiding judge for Judge Gallagher to sit in the Collin County region expired before he ruled on a motion to change venue. Was Judge Gallagher nevertheless empowered to remain on this case under the theory that he was holding court for another judge pursuant to the Texas Constitution? Did the Texas Constitution authorize the presiding judge of the Collin County region to agree, on behalf of the Collin County district judge who recused himself, to allow a district judge in a different region to hold court in Collin County? The Court answers those questions "yes," implying that the regional presiding judge stands in the shoes of the Collin County judge. But the Court cites no authority for that proposition and acknowledges that it is "harmonizing" various sources of law. I would deny mandamus relief because mandamus does not lie in criminal cases to settle unsettled law.
The relevant provision of the Texas Constitution says: "And the District Judges may exchange districts, or hold courts for each other when they may deem it expedient, and shall do so when required by law."1 There is authority suggesting that this provision allows two district judges, from anywhere in the state, to agree that one of them will sit in the other's district to preside over cases.2 But that is not what happened here. There was no agreement between Judge Gallagher and the Collin County district judge about Judge Gallagher holding court in Collin County. The regional presiding judge for the region including Collin County was not the elected judge of the district in the Collin County case. The Constitutional provision that says when "they" may deem it expedient suggests mutual consent by the two district judges involved. The Texas Constitution does not expressly allow a regional presiding judge to vicariously agree, on behalf of a recused district judge, to allow another district judge to sit in the recused judge's place. Statutory provisions do give the regional presiding judge the authority to assign another judge after disqualification or recusal, but then the statutory scheme must be followed.
Cf. Lopez v. State , 120 Tex. Crim. 393, 394, 49 S.W.2d 462, 462 (1932) ("The record shows that because of the disqualification of the regular judge of the district, an exchange of judges was agreed upon, and that the judge of the One Hundred and Third Judicial District of Texas presided upon the trial of this case. We see no irregularity or error in this procedure. In case of an exchange of benches by regular judges, no formal qualification upon exchange is necessary.").
For that matter, the State is just plain wrong that it has no right to appeal. "The state is entitled to appeal a ruling on a question of law if the defendant is convicted in the case and appeals the judgment." Tex. Code Crim. Proc. art. 44.01(c) (emphasis added). The question that remains, then, is whether the right to appeal that the State has in this instance is adequate.
Furthermore, while I question whether it should even need to be said, when a defendant is denied a change of venue in the trial court, it is likely that he must wait until appeal after conviction to complain about it. Here, it is the State seeking to overturn a trial court order related to venue. Good for the goose, good for the gander?
The statute provides:
(a) A presiding judge from time to time shall assign the judges of the administrative region to hold special or regular terms of court in any county of the administrative region to try cases and dispose of accumulated business.
(b) The presiding judge of one administrative region may request the presiding judge of another administrative region to furnish judges to aid in the disposition of litigation pending in a county in the administrative region of the presiding judge who makes the request.
Tex. Gov't Code § 74.056(a), (b) (emphasis added).
Judge Gallagher's written order granting change of venue, signed on March 30, 2017, expressly invokes Article 31.02 of the Code of Criminal Procedure and purports to change venue on the State's motion. Tex. Code Crim. Proc. art. 31.02.
The statute confers authority–via subsection (a)–on the presiding judge of an administrative region to assign judges in his region to hold court in any county in his region. The statute does not purport to confer freestanding authority to assign judges from other regions to cases in the presiding judge's region. But subsection (b) allows the presiding judge of one administrative region to furnish judges to another administrative region. Once a judge has been "furnished" to another region, that judge can then be assigned to a case by the presiding judge of the transferee region. At least arguably, the authority conferred by subsection (b) to "furnish" judges confers power on the transferring presiding judge to dictate the outer limits of the time the furnished judge will be available in the transferee region. Under that construction, an order of the regional presiding judge of the transferee region cannot authorize a period of time longer than that allowed by the order of the regional presiding judge of the transferring region.
The Court refers to three "assignment" orders, but it would be more precise to say that there are two "furnishing" orders from Judge Evans (Judge Gallagher's regional presiding judge) and one "assignment" order from the Judge Murphy (the regional presiding judge over the region that encompasses Collin County).
The Court, in its footnote 15, suggests that, because the parties consented to go to Harris County, Judge Gallagher "had authority to choose Harris County[,]" notwithstanding Article 31.02. See Majority Opinion at 668, n. 15. For authority the Court relies upon Ex parte Watson , 601 S.W.2d 350, 351 (Tex. Crim. App. 1980), which I contend—post at 694-95, n.12—has no precedential or authoritative value relevant to this case. And the Court fails to discuss or explain how, if at all, the statement it relies upon from Watson overcomes the mandatory language—"shall"—in Article 31.02 of our Code of Criminal Procedure.
Subsection (b) says that a presiding judge "may" request a presiding judge from another region to furnish a judge. The Court says that subsection (b) is permissive because it uses the word "may." But the word "may" is sometimes–perhaps more typically–used to authorize a judge to act, rather than to mean that he can choose whether or not to act. Subsection (b) is the only thing that gives a regional presiding judge the authority to use a judge from outside his region. Without subsection (b), all the presiding judge could do is shift around judges within his region (under the explicit language of subsection (a)).
Stredic v. State , 663 S.W.3d 646, 655 (Tex. Crim. App. 2022).
For example, a trial court judge who decides to change venue "upon his own motion" may, under certain specified conditions, "order a change of venue to any county beyond an adjoining [judicial] district[.]" Tex. Code Crim. Proc. art. 31.01. Similarly, when changing venue "on the written motion of the defendant," a trial court judge may also, under certain specified conditions, transfer the case to "a county beyond an adjoining district"—if, for instance, a closer county "is not subject to the same conditions which required the transfer" from the originating county, or upon the motion of the defendant and consent of the State. Tex. Code Crim. Proc. art. 31.03. Notably, however, Article 31.02 contains no such relative latitude. Change of venue at the State's request is strictly limited "to any county in the judicial district in which [the originating] county is located or in an adjoining county"—without exception. Tex. Code Crim. Proc. art. 31.02.
Also, the Court seems to conflate the constitutional and statutory requirements. The Court says that a regional presiding judge has the power under statute to assign a judge to any bench in his region. The Court then says that this statutory authority cannot detract from a district judge's constitutional authority and then concludes that once an active elected district judge is assigned to a case, that assignment cannot end without that district judge's consent. But that is not what the statute or the Constitution says. The statute allows a judge to be assigned to a particular district court even without the consent of the judge of that district court, but nothing in the statute or the constitutional provision purports to allow an assignment to continue without consent of the judge of that court after the period of the assignment—or the period for which he was furnished to the region if that happened—has expired. The Constitutional provision appears to require mutual consent—one district judge can sit for another if both consent. Here, mutual consent was lacking. Even assuming that Judge Gallagher agreed, there was no consent from the elected district judge in Collin County. The question is whether the regional presiding judge can consent on the Collin County district judge's behalf, and that question is unsettled—or at least was until today.
When the order furnishing Judge Gallagher had expired, he could have sought consent to continue to sit on the case from the Collin County district judge, who, incidentally, was no longer Judge Oldner. Had he received the new Collin County district judge's consent, he would have indisputably secured the authority to sit on the case, and I would not be dissenting today. But he did not do that.
Even when the facts are undisputed, mandamus will not lie in a criminal case to resolve a hotly-contested unsettled question of law. An issue of first impression can nevertheless be one of "settled" law if based on an unambiguous statute. The same could probably be said for an unambiguous constitutional provision. But as explained earlier, the constitutional provision does not unambiguously confer on a regional presiding judge the authority to vicariously agree, on behalf of a recused district judge, to allow another judge to hold court for the recused judge. An issue can also be considered "settled" if "the combined weight of our precedents clearly establishes the proposition of law on which relief is predicated." But the Court cites no case supporting its conclusion that a regional presiding judge can vicariously agree to allow the holding of court by a different district judge under the Texas Constitution. Because the law is unsettled, mandamus relief is inappropriate.
Simon v. Levario , 306 S.W.3d 318, 321 (Tex. Crim. App. 2009).
After a telephonic hearing on April 11, 2017, at which he entertained objections from Real Party in Interest to his March 30th order changing venue, Judge Gallagher signed another written order overruling those objections. His April 11th written order goes on to aver that "[t]he parties have agreed to allow the Court to transfer venue of these cases to a county that does not adjoin Collin County, Texas." So far, so good, since Article 31.02 would permit the trial court to change venue to a county in an "adjoining" judicial district, which would not have to be contiguous with Collin County. But then the April 11th order expressly required that "venue for trial on the merits of these cases is transferred to Harris County, Texas." Collin County and Harris County are not in "adjoining" judicial districts, and so, at least to this extent, the order violates Article 31.02.
In re State ex rel. Ogg , 618 S.W.3d 361, 363 (Tex. Crim. App. 2021).
The Court says that "the act of voiding Judge Gallagher's valid order was clearly unlawful because it violated Judge Gallagher's judicial authority flowing from both the Texas Constitution and our statutes." Majority Opinion at 683. This seems to suggest that there are no circumstances in which a transferee court (like the courts assigned to Judges Johnson and Luong) would ever have the discretion to consider the propriety of a change of venue to one of their courts as an independent matter. But what if (in that court and even this Court's view) the transfer did violate Chapter 31? What remedy then? It also seems to suggest that a transferee court would not even have the authority to further transfer the case out of its district, even were it to find circumstances justifying that action under Chapter 31 of the Code of Criminal Procedure. So, the Court's decision in this case seems to establish a precedent for the proposition that the provisions of Chapter 31 only apply to the original court into which a case is properly filed, and once a decision is made by that court to transfer venue to another court, no further transfer may ever be made from the transferee court for any reason at all. I am not at all sure about that. And I am inclined to think this is not what the Court actually intends. So, then, why say it?
Id. (internal quotation marks omitted).
Ironically, the Fifth Court of Appeals’ decision in a previous mandamus action in this case that required Judge Gallagher to relinquish control over the case after signing the order changing venue was predicated on the unchallenged assumption that Gallagher's order changing venue was itself valid. In re Paxton , ––– S.W.3d ––––, ––––, Nos. 05-17-00508-CV, 2017 WL 2334242, at *4 (Tex. App.—Dallas May 30, 2017). As the Court today accepts, the question of the validity of the order changing venue was apparently not at issue in that mandamus proceeding, which is why the Court today rejects Relator's law-of-the-case argument. Majority Opinion at 673. The First Court of Appeals came to the same conclusion. See In re State ex rel. Wice , 629 S.W.3d 715, 721-22 (Tex. App.—Houston [1st. Dist.] 2021) ("Because the Dallas Court of Appeals did not resolve whether Judge Gallagher had the authority to order a change of venue after the expiration of his assignment to the underlying cases, the law of the case doctrine does not prevent us from resolving that issue here.").
The State has other grounds for mandamus relief, but they are also without merit. The Court has rejected the State's law-of-the-case argument, and the Court's discussion of the preservation argument suggests that it is also without merit. Because this is a dissent, I do not further detail my reasoning on these grounds.
Unlike the parties, the trial court itself is not impeded by principles of estoppel, waiver, or procedural default from enforcing the law. Suppose Real Party in Interest had proceeded to trial in Harris County, had been convicted, and then argued on appeal that the trial court erred to proceed on the basis of a change of venue that violated Article 31.02. We would probably in that circumstance hold that his agreement to the illegal change-of-venue destination either estopped him from complaining, or at least constituted a waiver or forfeiture of his ability to complain about it, on appeal. Suppose, instead, that the State attempted to challenge that change-of-venue order on that basis under Article 44.01(c), which allows it to appeal "a ruling on a question of law if the defendant is convicted in the case and appeals the judgment." Tex. Code Crim. Proc. art. 44.01(c). We would likewise probably hold that it was estopped by its agreement from doing so. But such principles of estoppel, waiver, or default do not operate to limit the authority of a trial court to enforce the law on its own, irrespective of the will of the parties. The Court takes no account of this important consideration.
I respectfully dissent.
Yeary, J., filed dissenting opinion.
The real question before us today is whether, after venue in this case was transferred from Collin County to Harris County, the two judges who presided over the case in Harris County—State District Court Judge Robert Johnson, and then State District Court Judge Jason Luong—had any authority at all to send the case back to Collin County. The Court's analysis seems to place almost all of its focus on the authority of Judge George Gallagher—the Judge who was assigned to this case in Collin County—to order the change of venue in the first instance. See Majority Opinion at 664-65 ("The issue before this Court, on mandamus, is whether Judge Gallagher had the constitutional and statutory authority to preside over State v. Paxton when he granted a change of venue to Harris County[.]"). That, I think, is a mistake.1 It is true that Relator seeks mandamus in this Court against the First Court of Appeals, and when we are asked to issue the writ of mandamus against a court of appeals, this Court essentially conducts a de novo review of the same question that was before that lower court, paying "no particular deference to the court of appeals's judgment with respect to whether the relator has established the requisites for mandamus relief." State ex rel. Young v. Sixth Judicial District Court of Appeals , 236 S.W.3d 207, 210 (Tex. Crim. App. 2007). But Judge Gallagher was not the respondent in the First Court of Appeals. Instead, the respondent in the First Court of Appeals was Judge Luong, who signed an order sustaining the original order returning this case to Collin County, which original order was signed by Judge Johnson.2 Mandamus is an inappropriate vehicle to address abstract disagreements with a trial court's given reason for a ruling when another, yet unspoken reason, might also still justify the trial court's same ruling. On review of an application for a writ of mandamus, a court should focus its attention on the action of the respondent—whether the respondent had jurisdiction, authority, or discretion to take, or refrain from, the challenged action. It should not focus narrowly on the respondent's stated reason for its action or inaction. See e.g., Missouri-Kansas-Texas R. Co. of Tex. v. Brewster , 124 Tex. 244, 246, 78 S.W.2d 575, 576 (Tex. [Comm'n Op.] 1934) ("It has long been the rule of law of this state that this court will not review by mandamus the action of a trial court in granting a new trial unless his action in attempting to do so is absolutely void. This rule applies even though the court may expressly state erroneous reasons for granting the motion, if the motion itself is sufficient to invoke his jurisdiction.") (emphasis added).
Relator's burden is to demonstrate that the trial court judge—against whom mandamus is sought (here, Johnson and Luong, not Gallagher)—had no discretion to rule the way he did. See e.g., In re City of Lubbock , 666 S.W.3d 546, 553 (Tex. Crim. App. 2023) ("To satisfy the ministerial-act requirement, the relief sought must be clear and indisputable such that its merits are beyond dispute and there is nothing left to the exercise of discretion or judgment. ") (emphasis added); In re State ex rel. Best , 616 S.W.3d 594, 599 (Tex. Crim. App. 2021) ("To obtain extraordinary relief, Relator must show that ... what he seeks to compel or prohibit is ministerial, involving no discretion. ") (emphasis added). When I focus on Harris County Judges Johnson's and Luong's rulings as opposed to Judge Gallagher's, I cannot conclude that their rulings are subject to being ordered vacated on mandamus. I write separately to explain why. But before proceeding to that explanation, I wish to briefly highlight a different matter that I think the Court also gets wrong: whether there is an adequate remedy at law.
I. ADEQUATE REMEDY AT LAW
A mandamus applicant must establish both: 1) that he has no adequate remedy at law; and 2) that he seeks to compel a ministerial act, not involving discretion or judicial decision-making, to which he is clearly entitled. State ex rel. Mau v. Third Court of Appeals , 560 S.W.3d 640, 644 (Tex. Crim. App. 2018). The Court rightly recognizes that both of these prongs must be satisfied before relief may be granted. Majority Opinion at 670-71 & 683, n.101. The first requirement—no adequate remedy at law—is meant to assure that an extraordinary remedy (like mandamus) is appropriate as opposed to an ordinary one. Id. (citing In re State ex rel. Weeks , 391 S.W.3d 117, 122 (Tex. Crim. App. 2013) ).
Relator argues that, "[b]ecause Judge Luong's ruling does not fall within the scenarios vesting the State with the right to appeal, mandamus is the State's only remedy." Application for Writ of Mandamus at 15. But I can readily think of one at least potentially alternative legal remedy that Relator might seek: The State could simply file another motion for change of venue in the district court in Collin County.3
The Court responds that this proposed remedy is "no remedy at all." Majority Opinion at 683, n.100. It claims that this remedy would "lead to an infinite loop of venue changes before an appropriate venue is identified." Id . I disagree that it would add much delay, especially when compared to the delay occasioned by this proceeding—over one-and-a-half years now. But even if the Court is correct that such a revised proceeding would take too much time, Relator could instead file a motion, premised on the fact that Judge Gallagher has already ruled that a change of venue is appropriate, asking the appropriate judge in Collin County to act on that determination by transferring the case now to a venue that is proper under Article 31.02 of the Code of Criminal Procedure. See post , Part II; TEX. CODE CRIM. PROC. art. 31.02. After all, Real Party in Interest has already objected to that ruling, so if it was erroneous, it could be raised by him on direct appeal. And then, the only question would be which proper district to transfer the case to, consistent with the requirements of Article 31.02. There is simply no good reason for this Court to exercise our extraordinary mandamus authority to compel a result with regard to venue at this time. If the issue needs to be addressed at all, it can be addressed in the trial courts, and if necessary, later, on appeal.
Not to state the obvious, but this is not a direct appeal. And if there is a direct appeal by the defendant in this case, Relator—the State of Texas—will have the right to complain about both (1) the rulings made by Judges Johnson and Luong, and (2) the rulings made by the judge who would sit on this case next in Collin County. More importantly, if the next judge to sit on this case in Collin County agrees that venue still needs to be ordered changed, because of Judge Gallagher's original order or because a new transfer determination is made, then that judge could easily change venue to an appropriate location, consistent with the requirements of Article 31.02. Nothing about that process would lead to a "an infinite loop of venue changes[.]" Majority Opinion at 683, n.100.
Perhaps the Court should consider whether, if Judge Gallagher had denied a change of venue in this case, the State would have been entitled to mandamus at that point in time to compel the venue to be transferred to another county, including Harris County. If not, then why now compel it to remain there? The posture of the case is really not that different. Even though the case seems to be moving between trial courts and judges, the case is still active in the trial courts. Would the Court find mandamus an appropriate remedy if it were reviewing an order from Judge Gallagher denying transfer of venue (in this hypothetical) that is being challenged? Some may read the Court's decision here as a precedent supporting an answer to that question that the Court might not agree with if that should be the next case in which a question like this reaches us.
II. RELATOR IS NOT CLEARLY ENTITLED TO RELIEF
The actual, real, and critical question (and the one the court of appeals rightly identified) in this case: whether Judge Johnson or Judge Luong had the authority to invalidate Judge Gallagher's order sending this case to Harris County—on any basis at all. If I thought this case ultimately came down to a question of Judge Gallagher's authority to issue the change-of-venue order at all, I would be inclined to join Presiding Judge Keller's dissent in this case, for reasons that she details. But, as far as I am concerned, there is yet another, very good reason that could have justified both Judge Johnson's and Judge Luong's rejection of the specific change-of-venue order that Judge Gallagher issued in this case. Under Article 31.02 of our Code of Criminal Procedure, Judge Gallagher lacked the authority to transfer this case to Harris County. TEX. CODE CRIM. PROC. art. 31.02.
There seems to be no dispute that Judge Gallagher issued the change-of-venue order in response to a motion from Relator, the State.4 When the State seeks a change of venue, the Code of Criminal Procedure identifies an exclusive set of localities to which change of venue is permissible, and it seems to allow no exceptions. Unlike other provisions in Chapter 31 of the Code governing change of venue, Article 31.02 mandates that any change of venue granted on the State's request "shall" be made "to any county in the judicial district in which [the originating] county is located or in an adjoining district." TEX. CODE CRIM. PROC. art. 31.02.5 The statute recognizes no leeway, as do other statutes in Chapter 31, for improvisation with the indulgence of the parties.6
Here, Judge Gallagher ordered that venue be changed to a county several judicial districts removed from that in which Collin County is located.7 On its face, his order violated the terms of the statute. In my view, it would certainly have been within Judge Johnson's or Judge Luong's discretion to declare Judge Gallagher's change-of-venue order invalid on that account, if for no other reason.8 But those Harris County judges might also have concluded that the change of venue to Harris County was void , since it was beyond Gallagher's statutory authority to order, even with the consent of the parties, under the express and unequivocal requirements of Code of Criminal Procedure Article 31.02.9
Even if the failure to follow the statutory scheme did not provide a basis upon which to conclude that the order changing venue to Harris County was void , it remained within Judge Johnson's and Judge Luong's discretion to declare it invalid on that basis. It does not matter that the parties, including the State, agreed to the unauthorized change of venue to Harris County. Judge Johnson and Judge Luong could still have acted to rectify the situation, and those judges would not have been somehow estopped from doing so on account of the fact that the parties were content to violate the law.10
The bottom line is that, even if Judge Gallagher had the authority to issue a change-of-venue order in this case, he had no authority to change it to Harris County. It was therefore within Judge Johnson's and Judge Luong's discretion (whose decisions, after all, are ultimately the subject of this mandamus proceeding! ) to declare such an order invalid and to order the Harris County clerk to return the "papers" in the cause to Collin County. TEX. CODE CRIM. PROC. art. 31.05. On that basis, if no other, I conclude that Relator has not shown that it is clearly entitled to the relief it seeks. III. CONCLUSION
And nothing would then have prevented Relator from once again seeking to change venue from Collin County, but this time to a statutorily acceptable county.
The Court raises several arguments against my views. I will endeavor to address them here:
First, the Court suggests that "[w]hat either Judges Johnson or Luong might have been thinking is pure speculation." Majority Opinion at 665, n.1. But I have never suggested that any of my arguments depended on the Harris County judges having actually accepted my argument about the proper application of Article 31.02 in this case. The point I try to make is not that Judges Johnson and Luong did order this case returned to Collin County because of Article 31.02, but that they at least had discretion to do so on that basis. At the very minimum, I contend it would not have been an abuse of discretion for them to do so, and consequently, granting mandamus relief in this circumstance is inappropriate.
Suffice it to say, the burden in this case is on Relator, not Respondent. Relator's burden is to demonstrate that the Harris County trial court judges in this case had no discretion to order this case returned to Collin County, either on the basis of Real Party in Interest's arguments or for any other reason. It is not sufficient to earn mandamus relief to merely prove that the reasons argued, or even accepted by the trial court, for the return of the case to Collin County were wrong. If there exists any reason why the Harris County judges could have , within their discretion and authority, returned this case to Collin County, our precedents require that mandamus be denied. See In re City of Lubbock , 666 S.W.3d 546, 553 (Tex. Crim. App. 2023) ("To satisfy the ministerial-act requirement, the relief sought must be clear and indisputable such that its merits are beyond dispute and there is nothing left to the exercise of discretion or judgment. ") (emphasis added).
The Court also relies on Ex parte Watson , 601 S.W.2d 350, 351 (Tex. Crim. App. 1980), for the proposition that "[i]mproper venue, unlike jurisdiction, may be waived by the defendant's failure to object[,]" and "[u]nlike jurisdiction, venue may be acquired by consent." Majority Opinion at 668, n.15; id. at 682-83, n. 98.
Watson does not stand for the proposition that the Legislature's use of the mandatory term "shall" in Article 31.02 of the Code of Criminal Procedure means only "may," even when the parties might agree to transfer to a particular, otherwise improper county. Watson does not rely upon or even cite to any provision in Chapter 31 of our Code, much less Article 31.02 itself. So the likelihood is that, even if that provision was effective when Watson was written, the Court was not grappling with its effect in that case. The question in that case was whether the trial of a case involving an improper venue would impact the jurisdiction of the trial court to act. The Watson Court answered that question no.
It is unclear to me why the Watson Court even needed to say anything about venue being capable of being acquired by "consent." There is no suggestion that "consent" was given in that case or that it had any effect on the resolution of the issues presented. That comment was therefore likely only what the Court has called obiter dictum , meaning that it was unnecessary to the decision and does not constitute binding authority. Seger v. Yorkshire Insurance Co., Ltd. , 503 S.W.3d 388, 399 (Tex. 2016) ("Obiter dictum is not binding as precedent."). But even looking at the authorities the Watson Court cited for that proposition, they do not help the Court's position in this case. Watson cites to Williams v. State , 145 Tex. Crim. 536, 170 S.W.2d 482 (1943), which pre-dated the 1965 adoption of the modern version of Article 31.02. And while it does say at one point that "[v]enue may be acquired by consent[,]" it only does so to distinguish venue from jurisdiction, and it relies for that proposition in Taylor v. State , 81 Tex. Crim. 347, 197 S.W. 196 (1917) (Morrow, J., dissenting), which similarly refers to consent only in an effort to contrast it with jurisdiction, which (and I agree on this point) may not be acquired by consent. Moreover, in conjunction with its citations to Williams and Judge Morrow's dissent in Taylor , the Watson Court also cites Code of Criminal Procedure Article 13.20, the modern version of which clearly has no application to this case, at all. It provides:
The trial of all felony cases, without a jury , may, with the consent of the defendant in writing , his attorney, and the attorney for the state, be held in any county within the judicial district or districts for the county where venue is otherwise authorized by law.
Tex. Code Crim. Proc. art. 13.20 (emphasis added). There is no evidence that the trial of this case will be conducted without a jury. And even then, the statute limits the counties where the case may be tried by consent to counties "within the judicial district or districts for the county where venue is otherwise authorized by law[,]" id. , and as I have otherwise shown in this opinion, venue in this case is not authorized by law to be transferred to Harris County on motion of the State—in this case, Relator. See Tex. Code Crim. Proc. art. 31.02. So, I consider the Court's reliance on Watson to be misplaced in this case. And I am concerned that by jumping to that argument, the Court might unwittingly be establishing a rule permitting venue-by-consent in all cases, irrespective of whether the laws of our state may dictate a different result in some, if not many, circumstances.
The Court also suggests that issues related to Gallagher's decision on "the place of venue" may only be raised on direct appeal at the conclusion of the case. Majority Opinion at 670, n. 34. It is true that a defendant is likely not authorized to take an interlocutory appeal to challenge a decision denying a motion to change venue prior to trial and conviction. See e.g., United States v. Martin , 620 F.2d 237 (10th Cir. 1980) (denying relief on interlocutory appeal and mandamus where a defendant challenged the denial of his motion to dismiss on the ground of improper venue). That a defendant might not be permitted to appeal the denial of a change of venue until after the entry of a judgment of conviction does not a fortiori compel the conclusion either: (1) that a defendant may not properly move for a reversal of a change-of-venue order in the trial court; or (2) that a trial court may not lawfully grant such a motion.
The Court also, again, suggests that the Harris County judges’ orders must be vacated because "the parties clearly waived any objections under Article 31.02 and consented to a non-adjacent county." Majority Opinion at 682-83. Even if the parties might have waived arguments that they might have had to make to preserve the issue for an eventual direct appeal challenge, the Harris County district judges retained authority to ensure that the law, as mandated in Article 31.02, was followed. A trial court judge is not restricted from ensuring the law is followed because of principles of estoppel, waiver, or forfeiture of a claim by a party. Even if the parties were content—themselves—to violate the law, the Harris County district judges still had authority to enforce it.
And finally, the Court's opinion says "the Constitution requires more than mere disagreement to void the rulings of one of its judges acting within their discretion." Majority Opinion at 683. Considering all of the history of written opinions by this Court, I have always understood that maxim to be true, especially in the context of mandamus. But the Court seems to think that its disagreement with Judges Johnson's and Luong's reasons given for their orders is a sufficient reason to void their decisions. What are we to make of that?
Mandamus relief should be denied in this case. In my view, the Court clearly errs by deciding otherwise. Because the Court holds that mandamus is appropriate to compel this case to remain in Harris County, I respectfully dissent.