in Re: M. A. ( 2022 )

NO. 12-22-00016-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
IN RE: §
M.A., § ORIGINAL PROCEEDING
RELATOR §
MEMORANDUM OPINION
In this original proceeding, M.A. challenges (1) Respondent, the Honorable John M.
Marshall’s failure to set aside his temporary order of November 4, 2021, when, according to
M.A., his assignment ended on June 7, 2020, and (2) Respondent, the Honorable Alfonso F.
Charles’s denial of her objection to Judge Marshall’s presiding over the case. 1 We deny the writ.
BACKGROUND
M.A. and B.C., the Real Party in Interest, were divorced in 2017 and are the parents of
A.G.C., F.F.C., C.B.C., and M.J.C. In October 2019, B.C. filed a motion to modify and, on
October 31, Judge Charles assigned Judge Marshall to the case, in In the Interest of A.G.C.,
F.F.C., C.B.C., and M.J.C., trial court cause number FM16-00030. The assignment ran from
October 31 “until plenary power has expired or the Presiding Judge has terminated this
assignment in writing, whichever occurs first.” The order states, “whenever the Assigned Judge
is present in the county of assignment for a hearing on the above cause(s), the judge is also
assigned and empowered to hear, at that time, any other matters presented for hearing.” Judge
Marshall signed an order in suit to modify parent-child relationship on May 8, 2020.
On August 13, 2021, B.C. filed a petition to modify. M.A. subsequently filed a
counterpetition to modify. M.A. also filed a motion for judge to confer with child. After a
1
Respondent Charles is the Presiding Judge of the Tenth Administrative Judicial Region and Respondent
Marshall is the Senior Judge of the 14th District Court in Dallas County, Texas.
hearing, Judge Marshall signed a temporary order modifying conservatorship on November 4.
On December 20, M.A. filed a request for assignment of visiting judge and motion to declare
orders void. The elected judge of the 294th District Court in Van Zandt County, the Honorable
Chris Martin, signed an order of recusal and a request for assignment, in which he noted that
Judge Marshall had presided over the case from October 31, 2019 through May 8, 2020. On
December 22, Judge Charles signed another order of assignment, which again assigned Judge
Marshall to the case but added that the assignment “includes any post-judgment matters,
including but not limited to post judgment motions, motions for enforcement, motions to modify,
and habeas corpus proceedings, and remains in effect until the Presiding Judge has terminated
this assignment in writing.” That same day, M.A. filed an objection to the assignment. On
January 25, 2022, Judge Charles concluded that M.A. waived her objection to the assignment
and overruled her objection. M.A. filed this proceeding on January 27, and this Court granted
her request for a stay of the underlying proceedings pending further order of this Court.
PREREQUISITES TO MANDAMUS
Mandamus is an extraordinary remedy. In re Sw. Bell Tel. Co., L.P., 235 S.W.3d 619,
623 (Tex. 2007) (orig. proceeding). A writ of mandamus will issue only when the relator has no
adequate remedy by appeal and the trial court committed a clear abuse of discretion. In re
Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding). The relator
has the burden of establishing both prerequisites. In re Fitzgerald, 429 S.W.3d 886, 891 (Tex.
App.—Tyler 2014, orig. proceeding.). When a timely objection to a visiting judge’s assignment
is overruled, all the judge’s subsequent orders are void and the objecting party is entitled to
mandamus relief. In re Canales, 52 S.W.3d 698, 701 (Tex. 2001) (orig. proceeding); In re
J.H.K., No. 12-21-00153-CV, 2021 WL 5500523, at *1 (Tex. App.—Tyler Nov. 23, 2021, orig.
proceeding) (mem. op.).
ABUSE OF DISCRETION
M.A argues that Judge Marshall abused his discretion by refusing to declare the
November 4 order void because his assignment had ended. She further contends that Judge
Charles abused his discretion by denying her objection to Judge Marshall’s assignment.
2
An assignment order’s terms control the extent of the visiting judge’s authority and when
that authority terminates. Hull v. S. Coast Catamarans, L.P., 365 S.W.3d 35, 41 (Tex. App.—
Houston [1st Dist.] 2011, pet. denied). Generally, plenary power expires thirty days after a final
judgment is signed, unless a party files a timely motion for new trial or other postjudgment
motion, in which case plenary power can extend for a total of 105 days. See TEX. R. CIV. P.
329b(c), (e); see also L.M. Healthcare, Inc. v. Childs, 929 S.W.2d 442, 444 (Tex. 1996)
(plenary jurisdiction cannot extend beyond 105 days after trial court signs judgment). The
original assignment order provides that Judge Marshall’s authority terminates when “plenary
power has expired or the Presiding Judge has terminated this assignment in writing, whichever
occurs first.” Judge Marshall signed the order in suit to modify parent-child relationship on May
8, 2020 and the record does not demonstrate that either party filed a timely post-judgment
motion. Accordingly, Judge Marshall’s plenary power expired thirty days later, on June 8. 2
When a judge is assigned to a trial court under Chapter 74 of the Texas Government
Code, an objection to an assigned judge 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) (West 2013) (emphasis added). “[T]he statute contemplates that objections be made
before the first hearing over which the visiting judge is to preside in a case rather than to a
particular assignment order[.]” Canales, 52 S.W.3d at 700. Judge Marshall was assigned under
Chapter 74; thus, M.A. was required to timely object to the assignment as provided by Section
74.053. M.A. contends that because Judge Marshall’s plenary power had expired by the time
B.C. filed his petition to modify, any actions he took in the modification proceeding are void for
want of jurisdiction and not subject to waiver. She further maintains that there was no valid
assignment to which she could object until Judge Charles signed the December 22 assignment
order.
But the Texas Supreme Court has explained that Section 74.053 “does not say that
objections must be filed before the judge presides over any hearing under the assignment …
rather, [] to be timely an objection must be filed before the judge presides over any hearing.” Id.
at 702. “There is simply no basis in the statute to tie the timeliness of an objection to a judge’s
2
June 7 is the thirty-day mark but falls on a Sunday. See TEX. R. CIV. P. 4 (when computing time, the last
day of the period so computed is to be included, unless it is a Saturday, Sunday, or legal holiday, in which event the
period runs until the end of the next day which is not a Saturday, Sunday, or legal holiday).
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authority under any given assignment order.” Id. An objection to a judge assigned under
Chapter 74 is timely if filed before the very first hearing or trial in the case, including pretrial
hearings, over which the assigned judge is to preside—without regard to the terms of the
particular assignment order. Id. at 704. The “statute does not confer a new opportunity to object
when a visiting judge who has already heard matters in the case is reassigned by a new
assignment order.” Id. “Once 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.
B.C. filed his modification petition on August 13, 2021. Subsequently, M.A. filed an
answer, a counterpetition to modify, a motion to dismiss B.C.’s motion to enforce travel
restrictions, and a motion for judge to confer with child. Judge Marshall granted the motion to
dismiss on October 15. Importantly, Judge Marshall conducted hearings on August 23 and
October 29, in which M.A. participated without objection, and signed a temporary order on
November 4. As soon as it became apparent that Judge Marshall intended to preside over the
modification proceeding, M.A. was under a duty to object before Judge Marshall presided over
any hearing in the modification proceeding. See id. at 702. Not until December 20, when she
filed her request for assignment of visiting judge and motion to declare orders void, did M.A.
begin to complain about Judge Marshall presiding over the modification proceeding. And M.A.
filed her formal objection on December 22, after Judge Marshall had already conducted hearings
in the modification proceeding. Because Judge Marshall had already heard a matter in the
modification proceeding, Texas Supreme Court precedent makes clear that M.A. did not have a
new opportunity to object when Judge Marshall was reassigned by the December 22 order and
she waived her right to object. 3 See id. at 704; see also J.H.K., 2021 WL 5500523, at *3
(objection untimely where made after assignment and after assigned judge had already conducted
hearing); see also e.g. In re H.L.F., No. 12-11-00243-CV, 2012 WL 5993726, at *3 (Tex.
3
We are not persuaded by the cases M.A. cites to support her contrary position. First, in B.T., mother
objected to the assignment of a visiting judge, who had signed a divorce decree, before the judge heard any matters
in father’s new modification proceeding and application for protective order. In Interest of B.T., No. 02-14-00339-
CV, 2015 WL 4776112, at *1 (Tex. App.—Fort Worth Aug. 13, 2015, no pet.) (mem. op.). Second, in B.F.B., the
assignment order specifically authorized the visiting judge to only consider a motion to recuse; thus, the visiting
judge exceeded the scope of his assignment by signing a final order on the custody issue. In re B.F.B., 241 S.W.3d
643, 645-47 (Tex. App.—Texarkana 2007, no pet.). Moreover, that case involved an appeal from a final order and
did not involve an objection under Section 74.053. See id. at 647 n.3. Third, in Troiani, the visiting judge signed a
final order on October 10, 2014 and when relator filed her motion for enforcement on June 6, 2016, she included an
objection to appointment of the visiting judge presiding over the case; thus, the relator objected before the visiting
judge held a hearing on any matter in the enforcement action. In re Troiani, No. 13-17-00204-CV, 2017 WL
2806296, at *1-2 (Tex. App.—Corpus Christi June 27, 2017, orig. proceeding) (mem. op.).
4
App.—Tyler Nov. 30, 2012, pet. denied) (judge signed temporary order on January 11, 2010,
and presided over five hearings before objection regarding absence of assignment order, thus,
objection was not timely).
In accordance with Canales, we conclude that because M.A. lodged an untimely
objection to Judge Marshall’s presiding over the modification proceeding, she cannot
demonstrate that Judge Marshall abused his discretion by failing to set aside the November 4
order or that Judge Charles abused his discretion by overruling her objection. Accordingly, she
has not shown herself entitled to mandamus relief.
DISPOSITION
Having determined that no abuse of discretion occurred under the facts of this case, we
deny M.A.’s petition for writ of mandamus. We lift our stay of January 27, 2022.
JAMES T. WORTHEN
Chief Justice
Opinion delivered February 28, 2022.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
FEBRUARY 28, 2022
NO. 12-22-00016-CV
M.A.,
Relator
V.
HON. ALFONSO F. CHARLES &
HON. JOHN M. MARSHALL
Respondents
ORIGINAL PROCEEDING
ON THIS DAY came to be heard the petition for writ of mandamus filed by
M.A.; who is the relator in appellate cause number 12-22-00016-CV and a party to trial court
cause number FM16-00030, pending on the docket of the 294th Judicial District Court of Van
Zandt County, Texas. Said petition for writ of mandamus having been filed herein on January
27, 2022, and the same having been duly considered, because it is the opinion of this Court that
the writ should not issue, it is therefore CONSIDERED, ADJUDGED and ORDERED that the
said petition for writ of mandamus be, and the same is, hereby denied.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.
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