in Re: Rutt, Larry, Friedman, Janell and Rutt, Heather

Writ of Mandamus Granted, Opinion and Order issued March 18,1999
In The
Gfrmrt of Appeals
Jfltftlj district of ©exas at Dallas
No. 05-99-00117-CV
IN RE LARRY RUTT, JANELLE FRIEDMAN, AND HEATHER RUTT, Relators
From the 95th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 96-02607-F
OPINION AND ORDER
Before Justices Whittington and Bridges
Opinion by Justice Bridges
Larry Rutt, Janelle Friedman, and Heather Rutt (relators) contend aretired judge abused his
discretion in overruling their objection to his assignment to hear amotion to recuse the trial judge in
the underlying case. This original proceeding arises from acase pending in the 95th Judicial District
Court ofDallas County, Texas, styled Larry Rutt, Janelle Friedman, and Heather Rutt v. Don Ambrose
and Mary Ambrose, individually and as nextfriends ofBrad Ambrose and Brad Ambrose individually.
Relators filed amotion to recuse the Honorable Sally Montgomery, Judge ofthe 95th District Court.
The presiding judge of the administrative region appointed the Honorable Bill Stephens, aretired
judge, to hear the motion to recuse.
Before the start ofthe hearing on the motion to recuse, relators objected to Judge Stephens's
assignment to hear the motion to recuse under section 74.053 ofthe Government Code. See TEX.
Gov't. Code Ann. § 74.053 (Vernon 1998). Relators' counsel handed the written objection to
Judge Stephens. At that point, Judge Stephens stated:
I'm going to read you this objection, and let it be a matter of record. To the
Honorable Judge of said Court, comes now Heather M. Rutt, Janelle Friedman and
Larry Rutt collectively, plaintiffs, and file this their objection to the assignedjudge and
the cause and respectfully show unto the Court the following: Plaintifffiled this their
objection to the assigned Judge pursuant to Texas Government Code 74.063.
After hearing arguments of counsel, Judge Stephens overruled the objection.
Relators contends that Judge Stephens abused his discretion in overruling the objection to his
assignment to hear the motion to recuse because an objection under section 74.053 automatically
disqualifies him from hearing the case. In response, the real parties in interest raise two arguments.
First, they assert that asection 74.053 objection does not disqualify ajudge assigned to hear arecusal
motion under rule 18a ofthe Texas Rules of Civil Procedure. We disagree. The Texas Supreme
Court recently held that asection 74.053 objection does apply to aretired judge assigned to hear a
recusal motion under rule 18a . See In re Perritt, 42 Tex. Sup. Ct. J. 409, 409 (March 11, 1999).
Next, the real parties in interest claim that relators have waived their objection under section 74.053
by failing to file acopy ofthe objection with the clerk before the hearing began. Again, we disagree.
Section 74.053(d) requires that an objection under section 74.053 must be filed before the first
hearing or trial over which the assigned judge is to preside. Tex. Gov't. Code Ann. §74.053(d)
(Vernon 1998). Here, relators' attorney handed the written objection to Judge Stephens before the
hearing on the motion to recuse the trialjudge. Judge Stephens read the objection in open court and
pronounced it a"matterofrecord." Underthese circumstances, weconcluderelatorsfiled asufficient
objection under section 74.053(d).1
Because relators properly objected to Judge Stephens under section 74.053, we conclude he
1SectionT^Wpermitseachpartyto the case to make onlyone objection*the"f"^f"^
Stephens, relators have usedtheir objection and may not object inthe future except as prov.ded msechon 74.053(d). See In rePemtt, 42 Tex. Sup.
a. J. at 410 n.2.
-2-
abused his discretion in overruling the objection. See In re Houston Lighting &Power Co., 976
S.W.2d 671, 672 (Tex. 1998) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.
1992) (orig. proceeding). We conditionally grant relators'petition for writ ofmandamus. We direct
Judge Stephens to vacate his order denying relators' objection and enter an order granting the
objection. If Judge Stephens enters an order in compliance with this opinion, mandamus will not
issue. Judge Stephens is tofile a certified copy ofhis order in compliance with this opinion no later
than April 1, 1999.
This Court's order staying all proceedings in this case in the trial court remains in effect until
Judge Stephens files an order in compliance with this opinion or until mandamus issues. Thereafter,
this Court'sFebruary 3, 1999 stay order is vacated without further action.
CLJ L (Z~-ls-
DAVJD L. BRIDGES
JUSTICE
Do Not Publish
Tex. R. App. P. 47
-3-