in Re Wayne Dex Honea

Opinion filed October 31, 2013
In The
Eleventh Court of Appeals
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No. 11-13-00300-CV
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IN RE WAYNE DEX HONEA
Original Mandamus Proceeding
OPINION
This mandamus proceeding arises from an objection to an assigned senior
judge filed under TEX. GOV’T CODE ANN. § 74.053(b) (West 2013). Relator,
Wayne Dex Honea, seeks mandamus relief requiring the assigned judge,
Honorable David Cleveland, Senior District Judge of the 29th District Court, to
withdraw from presiding over Relator’s recently filed petition to modify the
parent-child relationship. He additionally seeks an order requiring the presiding
judge of the 8th Administrative Judicial Region, Honorable Jeff Walker, to assign
a different judge to preside over the matter. We conditionally grant the petition for
writ of mandamus.
Background Facts
On January 7, 2010, Judge Walker assigned Judge Cleveland to preside
over the divorce between Relator and the Real Party in Interest, Angelia Faye
Phillips. The divorce between Relator and the Real Party in Interest became final
in 2010 pursuant to an agreed final decree of divorce entered on May 14, 2010, by
Judge Cleveland. After the entry of the final decree of divorce, further litigation
occurred between Relator and the Real Party in Interest. Relator filed a petition to
modify the parent-child relationship on January 5, 2012. On January 19, 2012,
Presiding Judge Walker entered an order assigning Judge Cleveland to preside over
the modification proceeding. On July 3, 2013, Judge Cleveland entered a final
order denying Relator’s requested modification.
On August 19, 2013, Relator filed another petition to modify the parent-
child relationship. Relator’s counsel alleges that he received actual notice that
Judge Cleveland was assigned to preside over the case by the court coordinator on
September 6, 2013. Relator filed an objection to the assignment of
Judge Cleveland on September 9, 2013. Relator subsequently wrote Judge Walker
on September 16, 2013, informing him that Judge Cleveland refused to honor the
objection. Relator additionally requested Judge Walker to assign a different judge.
Judge Walker responded in writing to Relator in a letter dated September 20,
2013. Judge Walker advised Relator that he assigned Judge Cleveland to preside
over the “case” between Relator and the Real Party in Interest in his assignment
order dated January 19, 2012. He further stated that Relator waived his right to
object to Judge Cleveland by filing his objection after Judge Cleveland had issued
previous rulings in proceedings between the parties arising from their divorce.
Thus, Judge Walker took the position that Judge Cleveland’s assignment to
previous proceedings arising from the divorce between the parties also served as
his assignment to future proceedings between the parties arising from the divorce.
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Analysis
Mandamus is an extraordinary remedy available only in limited circum-
stances involving manifest and urgent necessity and not for grievances that may be
addressed by other remedies. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992).
To be entitled to relief, the relator must demonstrate a clear abuse of discretion or
the violation of a duty imposed by law when there is no other adequate remedy at
law. See Republican Party of Texas v. Dietz, 940 S.W.2d 86, 88 (Tex.1997).
Additionally, the relator must satisfy three requirements, to-wit: (1) a legal duty to
perform; (2) a demand for performance; and (3) a refusal to act. Stoner v. Massey,
586 S.W.2d 843, 846 (Tex. 1979).
Section 74.053 governs objections to the assignment of trial judges. Except
as specifically provided, each party to the case is entitled to only one objection
under the statute. GOV’T § 74.053(b). If a properly filed objection is timely, the
assigned judge’s disqualification is automatic. Id.; In re Canales, 52 S.W.3d 698,
701 (Tex. 2001). An objection to the assignment of a trial judge under
Section 74.053 must be filed not later than the earlier of the seventh day after the
date the party receives actual notice of the assignment or of the date the first
hearing or trial, including pretrial hearings, commences. GOV’T § 74.053(c).
The issue in this proceeding is the timeliness of Relator’s objection to Judge
Cleveland. Judge Walker determined that Relator’s objection to modify was
untimely because Judge Cleveland had presided—without objection—over
previous proceedings between the parties arising from their divorce.
TEX. FAM. CODE ANN. § 156.004 (West 2008) provides that, in a suit to
modify an order in a suit affecting the parent-child relationship, “[t]he Texas Rules
of Civil Procedure applicable to the filing of an original lawsuit apply.” Relying
upon this provision, the court in Bilyeu v. Bilyeu, 86 S.W.3d 278, 280 (Tex.
App.—Austin 2002, no pet.), determined that a suit to modify an order in a suit
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affecting the parent-child relationship is a new cause of action. See Normand v.
Fox, 940 S.W.2d 401, 403 (Tex. App.—Waco 1997, no writ); Katerndahl v.
Haberman, No. 04-96-00444-CV, 1996 WL 411194, at *1 (Tex. App.—
San Antonio July 24, 1996, orig. proceeding) (not designated for publication) (“A
motion to modify is an original lawsuit filed in the court of continuing, exclusive
jurisdiction.”). Thus, a motion to modify an order entered in a suit affecting the
parent-child relationship is a new case or new cause of action under the Texas
Family Code. There is no authority that an assignment order entered in a previous
case between the parties governs a subsequent case. Accordingly, Relator’s
consent to Judge Cleveland in a previous proceeding has no bearing on a new case.
We conclude that Relator’s objection to Judge Cleveland was timely and that
Judge Cleveland had a mandatory obligation to withdraw from the case. We
conditionally grant the petition for writ of mandamus. Judge Cleveland is directed
to withdraw from presiding over the motion to modify filed by Relator, and Judge
Walker is directed to assign a different judge to preside over the proceeding. The
writ of mandamus will issue only if Judge Cleveland and Judge Walker fail to act
by November 21, 2013.
TERRY McCALL
JUSTICE
October 31, 2013
Panel consists of: McCall, J.,
Willson, J., and Chew. 1
Wright, C.J., not participating.
1
David Chew, Retired Chief Justice, Court of Appeals, 8th District of Texas at El Paso, sitting by
assignment.
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