Opinion
NUMBER 13-17-00549-CV
10-11-2017
IN RE JOE R. MEDINA, LAREDO MEDINA LAND INVESTMENTS, LTD., J.R. MEDINA OPERATING INVESTMENTS, LTD., AND ZACATECAS, LTD.
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Justices Rodriguez, Benavides, and Longoria
Memorandum Opinion by Justice Longoria
See TEX. R. APP. P. 52.8(d) ("When granting relief, the court must hand down an opinion as in any other case," but when "denying relief, the court may hand down an opinion but is not required to do so."); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
By petition for writ of mandamus, Joe R. Medina, Laredo Medina Land Investments, Ltd., J.R. Medina Operating Investments, Ltd., and Zacatecas, Ltd. seek to set aside rulings issued by an assigned judge on grounds that their objection to the assignment was timely. See Tex. Gov't Code Ann. § 74.053 (West, Westlaw through 2017 1st C.S.). Relators have also filed a motion for emergency stay seeking to stay the trial court proceedings pending resolution of this original proceeding.
Mandamus is an extraordinary remedy. In re H.E.B. Grocery Co., 492 S.W.3d 300, 302 (Tex. 2016) (orig. proceeding) (per curiam). Mandamus relief is proper to correct a clear abuse of discretion when there is no adequate remedy by appeal. In re Christus Santa Rosa Health Sys., 492 S.W.3d 276, 279 (Tex. 2016) (orig. proceeding). The relator bears the burden of proving both of these requirements. In re H.E.B. Grocery Co., 492 S.W.3d at 302; Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding).
An abuse of discretion occurs when a trial court's ruling is arbitrary and unreasonable or is made without regard for guiding legal principles or supporting evidence. In re Nationwide Ins. Co. of Am., 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding); Ford Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012). We determine the adequacy of an appellate remedy by balancing the benefits of mandamus review against the detriments. In re Essex Ins. Co., 450 S.W.3d 524, 528 (Tex. 2014) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004) (orig. proceeding).
When an assigned judge overrules a timely objection to his or her assignment, all of the judge's subsequent orders are void and the objecting party is entitled to mandamus relief. See In re Canales, 52 S.W.3d 698, 701 (Tex. 2001) (orig. proceeding). The objecting party need not demonstrate that it lacks an adequate remedy by appeal. Dunn v. Street, 938 S.W.2d 33, 34 (Tex. 1997) (orig. proceeding); Flores v. Banner, 932 S.W.2d 500, 501 (Tex. 1996) (orig. proceeding); In re Flores, 53 S.W.3d 428, 430 (Tex. App.—San Antonio 2001, orig. proceeding).
Under section 74.053 of the government code, an objection to a judge assigned to a trial court "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." TEX. GOV'T CODE ANN. § 74.053(c). The presiding judge may extend the time to file an objection "on written motion by a party who demonstrates good cause." Id. If a properly filed objection under this statute is timely, the assigned judge's disqualification is automatic. Id. § 74.053(b) (stating that "the judge shall not hear the case").
The Texas Supreme Court has held that "[a]n objection to a judge assigned under Chapter 74 is timely if it is filed before the very first hearing or trial in the case, including pretrial hearings, over which the assigned judge is to preside." In re Canales, 52 S.W.3d at 704 (construing an earlier version of section 74.053). The purpose of the statutory requirement of an immediate objection to an assigned judge is to avoid a party's attempt to "sample" the judge. Id. at 703. Accordingly, "[o]nce an assigned judge has heard any matter in a case, the parties have waived the right to object to that judge under section 74.053 of the Government Code." Id.; see In re Francisco, No. 09-17-00346-CV, 2017 WL 4182319, at *1 (Tex. App.—Beaumont Sept. 18, 2017, orig. proceeding) (per curiam mem. op.) ("An objection is late if it is made after the assigned judge makes any ruling in the case."); In re S.N.Z., 421 S.W.3d 899, 907 (Tex. App.—Dallas 2014, pet. denied) ("[W]e conclude Mother's objection was not timely because it was filed after the assigned judge had heard and ruled on motions filed by her."); U. Lawrence Boze' & Assocs., P.C. v. Harris Cty. Appraisal Dist., 368 S.W.3d 17, 31 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (reviewing the applicable law regarding the timeliness of an objection to an assigned judge).
The Court, having examined and fully considered the petition for writ of mandamus and the applicable law, is of the opinion that relators have not shown themselves entitled to the relief sought. Accordingly, we DENY the petition for writ of mandamus and the motion for emergency stay. See TEX. R. APP. P. 52.8(a).
NORA L. LONGORIA
Justice Delivered and filed the 11th day of October, 2017.