Opinion
NO. 14-12-00558-CV
07-12-2012
IN RE MICHAEL WEISINGER, Relator
Petition for Writ of Mandamus Dismissed and Memorandum Opinion filed July 12, 2012.
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
328th District Court
Fort Bend County
Trial Court Cause No. 11-DCV-189139
MEMORANDUM OPINION
On June 18, 2012, relator Michael Weisinger filed a petition for writ of mandamus in this court. See Tex. Gov't Code Ann. §22.221; see also Tex. R. App. P. 52. In the petition, relator asks this court to compel the Honorable Walter Armytas, associate judge of the 328th District Court of Fort Bend County to vacate the March 27, 2012 order appointing Dr. Bernard Gerber as an expert witness, and the June 4, 2012 order requiring relator to pay Dr. Gerber's fee.
Background
On February 16, 2011, relator's ex-wife, Janna Sue Fries, filed a petition to modify the parent-child relationship seeking indefinite child support for J.M.W., an adult child, asserting the child suffers from multiple mental disabilities that render him incapable of self-support. On February 14, 2012, relator filed a motion for physical and mental examination in the trial court asking the court to require J.M.W. to undergo a physical and mental examination by Dr. Seth Silverman. Fries objected to relator's motion on the grounds that J.M.W. had been evaluated by his treating psychiatrist and a second psychiatrist. Further, an independent evaluation had been performed by a psychologist. Fries requested that in the event the court granted relator's request, the court also order relator to pay the costs of the evaluation because she had paid for the three prior evaluations.
On February 27, 2012, Judge Ronald Pope, presiding judge of the 328th District Court, held a hearing at which both relator and Fries were represented by counsel. Relator argued that a Montgomery County judge had ordered a mental and physical evaluation conducted by Dr. Silverman. Judge Pope agreed to authorize the independent evaluation, but declined to appoint Dr. Silverman. He requested that the parties attempt to agree on an individual to conduct the examination. Judge Pope instructed the parties that if they could not agree, they should return with two or three names from which the court could choose. At that time, Judge Pope expressed his intent to require relator to pay for the evaluation.
On June 4, 2012, the respondent in this proceeding, Judge Walter Armatys, held a hearing at which Fries sought to compel relator to pay the fee for the independent examination ordered by Judge Pope. According to the transcript of the June 4 hearing, Judge Pope signed an order on March 27, 2012 appointing Dr. Bernard Gerber as an independent expert and requiring relator to pay Dr. Gerber's fees. However, relator did not attach to his mandamus petition any order signed by Judge Pope.
At the conclusion of the hearing, Judge Armatys signed an order compelling compliance with Judge Pope's previous order. Judge Armatys further required relator to pay Dr. Gerber's retainer fee of $3,200.00 by June 18, 2012.
On June 18, 2012, relator filed a petition for writ of mandamus in this court seeking relief from Judge Armatys' order. The only order attached to relator's petition is the order signed by Judge Armatys, the associate judge for the 328th District Court in Fort Bend County. Although the order refers to an order from Judge Pope on March 27, 2012, there is, as previously stated, no order from Judge Pope on that date attached to relator's petition. Further, according to the record of the June 4, 2012 hearing, no record was made of the March 27, 2012 hearing.
LACK OF MANDAMUS JURISDICTION
This court's mandamus jurisdiction is governed by section 22.221 of the Texas Government Code. Section 22.221, entitled "Writ Power," expressly limits the mandamus jurisdiction of the courts of appeals to: (1) writs against a district court judge or county court judge in the court of appeals' district, and (2) all writs necessary to enforce the court of appeals' jurisdiction. Tex. Gov't Code Ann. § 22.221. We do not have jurisdiction over an associate judge. In re Texas Dept. of Family and Protective Servs., 348 S.W.3d 492, 495 (Tex. App.—Fort Worth 2011, orig. proceeding); In re Reynolds, No. 14-11-00002-CV; 2011 WL 32208 (Tex. App.—Houston [14th Dist.] Jan. 4, 2011, orig. proceeding) (mem. op.).
Because the order made the subject of relator's request for mandamus relief was signed by the associate judge, this court does not have mandamus jurisdiction. Accordingly, the petition for writ of mandamus is ordered dismissed.
PER CURIAM Panel consists of Justices Frost, McCally, and Busby.