Objection to Assigned Judge in Texas

What Is an Objection to an Assigned Judge?

Background

Tex. Gov't Code Ann. § 74.053 is the governing code section concerning objections to an assigned judge. The section provides as follows:

A former judge who was not a retired judge at the time the judge left office may not sit [for] a case if either party objects to the judge. (Herring v. Childers (2004) No. 13-02-190-CV, at *1 citing Tex. Gov't Code Ann. § 74.053(a), (b), (d);

Subsection (b) allows a party to make one objection to any assigned judge. However, subsection (d) allows unlimited objections "to an assigned judge who was not a retired judge." (Tex. Gov't Code § 74.053(d); and

“While section 74.053 provides a right to object to a judge, it does not give a party an unlimited right to have the matter decided before a judge of its choosing.” (In re Houston Lighting Power Co. (1998) 976 S.W.2d 671, 673.)

“[O]nce a party files a timely objection to an assigned judge pursuant to section 74.053(c) of the Texas Government Code, the judge is automatically disqualified as a matter of law. (Lewis v. Leftwich (1989) 775 S.W.2d 848, 851 citing Tex. Gov't Code Ann. § 74.053(b).) Any judgment or order entered by the disqualified judge is a nullity.” (Lewis, supra, ciitng Curtis v. State (1988) 762 S.W.2d, 958, 959-60.)

How to Structure the Motion

Section 74.053(b) of the Texas Government Code provides that once a party files a timely objection to an assigned judge, “the judge shall not hear the case.” (Tex. Gov't Code Ann. § 74.053(b) [West 2013]; see also Lewis v. Leftwich (1989) 775 S.W.2d 848, 849–50.)

An objection to an assigned judge is timely if it is filed before the first hearing or trial, including pretrial hearings over which the judge is to preside, without regard to the terms of the particular order under which the judge is assigned. (Tex. Gov't Code Ann. § 74.053(c); In re Canales (2001) 52 S.W.3d 698, 704; Lewis, supra, 775 S.W.2d at 849.)

Once a party files a timely objection to an assigned judge, the judge is automatically disqualified as a matter of law, even if the judge is unaware of the objection. (In re M.A.S. (2005) 05-03-00401-CV, 2005 WL 1039967, at *2.)

“Timely Filed” Defined

A document is “filed” when it is tendered to the clerk, and the legal effect of filing a document remains the same whether the judge presiding over the litigation is aware of its filing or not. (Lewis v. Leftwich (1989) 775 S.W.2d 848, 849-50 [objection to assigned judge under government code section 74.053 is timely if made before assigned judge, sitting on bench and in open court, calls case to hearing or trial.])

Pro Forma Objections

A party does not possess the right to object to the assignment of a visiting judge before the assignment takes place. (Discovery Operating, Inc. v. Baskin (1993) 855 S.W.2d 884, 887.)

Section 74.053 contemplates that assigned judge objections will be filed after the assignment of a judge to whom a party objects, not that parties can file pro forma blanket objections to assigned judges at the time they file their initial pleadings. (See Tex. Gov't Code Ann. § 74.053(c) [“An objection under this section must be filed not later than the seventh day after the date the party receives actual notice of the assignment or before the date the first hearing or trial, including pretrial hearings, commences, whichever date occurs earlier.”])

Probate Motions

The recusal movant must file her motion to recuse 10 days before the next trial or hearing. (Hudson v. Texas Children's Hospital (2005) 177 S.W.3d 232, 235-36 citing Tex. Gov't Code Ann. § 25.00255(b); Tex. R. Civ. P. 18a(a).) However, “[the] ten-day requirement of Rule 18a does not contemplate the situation in which a party cannot know the basis of the recusal until after a motion for recusal is no longer timely.” (Keene Corp. v. Rogers (1993) 863 S.W.2d 168, 171; see also, Metzger v. Sebek (1994) 892 S.W.2d 20, 49 [“Where the movant in a motion to recuse does not receive 10 days notice of the hearing on the matter from which he seeks to recuse the judge, the 10-day requirement of rule 18a(a) cannot apply.”])

Courts have acknowledged that this has implied that a trial judge may determine whether the 10-day requirement of Rule 18a(a) has been met before deciding whether to recuse or refer. (Petitt v. Laware, 715 S.W.2d 688, 692 (Tex.App.-Houston [1st Dist.] 1986, writ ref'd n.r.e.) [concluding that mandatory provisions to recuse or refer do not come into play if motion is untimely filed.])

There are cases in which the 10-day requirement of Rule 18a(a) does not apply because either:

the claimed event that triggers recusal occurs less than 10-days before the next scheduled hearing or
the movant in a motion to recuse does not receive 10 days notice of the hearing on the matter from which he seeks to recuse the judge. We have found no authority in which the triggering event occurred within the 10-day period preceding trial or a scheduled hearing and it was held that it was proper for the trial judge to determine whether the written motion to recuse was filed timely.

(Hudson v. Texas Children's Hospital (2005) 177 S.W.3d 232, 235-36.)

To the contrary, when the timing of events renders the 10-day requirement inapplicable, courts have held that the trial judge has only two options: recuse or refer. (See Metzger, 892 S.W.2d at 49; see also In re Healthmark Partners, L.L.C. (2004) No. 14-04-00743-CV, 2004 WL 1899953, at *1-*2 [mem. op., ruling that trial judge could not refuse to act on motion to recuse filed three days before trial and based on judge's comments made five days before trial; rather, judge was required to recuse or refer.])

The Court’s Decision

Here are a few examples of how courts have ruled:

In deciding whether an objection is timely, “an objection to an assigned judge is timely, as a matter of law, if it is made before the assigned judge takes the bench to preside over any hearing, including pretrial hearings, or trial over which he is assigned to preside.” (Lewis v. Leftwich (989) 775 S.W.2d 848, 850-51 citing Tex. Gov't Code Ann. § 74.053(c).)

In determining whether a respondent's out-of-court and ex parte action in denying a co-defendant's request to appear telephonically at a hearing constituted a pretrial hearing or other hearing within the context of the statute, a “request to the court coordinator and the respondent's instruction to appear in person—did not constitute a pretrial hearing or other hearing within the context of § 74.053(c) which would have rendered objection as untimely.” (In re Magnolia Prop. Mgmt. (2020) No. 13-20-00112-CV, 1 at *15.)

Documents for Objection to Assigned Judge in Texas

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BUCKNER MARKET PLACE DENTAL PA vs. SCOTT LUDLOW document preview

OBJECTION TO ASSIGNED JUDGE - OBJECTION

4 pages

FILED 1/25/2024 3:21 PM FELICIA PITRE DISTRICT CLERK …