in Re Magnolia Property Management

NUMBER 13-20-00112-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN RE MAGNOLIA PROPERTY MANAGEMENT
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Perkes
Memorandum Opinion by Chief Justice Contreras1
Relator Magnolia Property Management (Magnolia) filed a petition for writ of
mandamus in the above cause on February 26, 2020. Through this original proceeding,
Magnolia contends that the respondent erred in overruling its objection to the
respondent’s assignment under § 74.053. See TEX. GOV’T CODE ANN. § 74.053.2 We
agree and conditionally grant the petition for writ of mandamus.
1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not
required to do so. When granting relief, the court must hand down an opinion as in any other case.”); see
also id. R. 47.4 (distinguishing opinions and memorandum opinions).
2 This original proceeding arises from trial court cause number C-0527-18-I in the 398th District
Court of Hidalgo County, Texas, and the respondent is the Honorable Rogelio Valdez. See id. R. 52.2.
 I. BACKGROUND
The underlying proceeding is a suit for wrongful foreclosure brought by Jose
Roberto Flores3 against Magnolia and other defendants, including Chateau Heights
Council of Co-Owners, Inc. (Chateau), Kingman Holdings, LLC, as trustee of the South
Second Street 3100 #33 Land Trust, Kingman Holdings, LLC, and Mark DiSantis
(collectively, Kingman).
On January 7, 2020, Magnolia filed a motion to recuse the Honorable Keno
Vasquez, who was then presiding over the case. On January 24, 2020, the Presiding
Judge of the Fifth Administrative Judicial Region assigned the respondent, as “Senior
Justice,” to preside over the case “to consider the Motion to Recuse filed against Judge
Keno Vasquez.” This order of assignment was filed on January 29, 2020.
On January 24, 2020, the respondent signed an “Order Setting Hearing on
[Magnolia’s] Motion to Recuse,” setting the hearing to occur on January 31, 2020, at 10:00
a.m.
On January 30, 2020, at 3:56 p.m., Magnolia filed an “Objection to Assignment.”
In its objection, Magnolia asserted that it had received the order setting hearing, signed
by the respondent, and noted that it had not received a written notice of his assignment
to the case. In this pleading, Magnolia objected to the respondent’s assignment under
§ 74.053 of the Texas Government Code.
On January 31, 2020, the respondent began the hearing that he had scheduled for
that day. At the beginning of the hearing, he stated that the court coordinator had informed
him of a request from “I guess, the defendants,” to appear telephonically. He stated that
3 Flores is the Presiding Judge of the 139th District Court of Hidalgo County, Texas.
2
due to “some difficulties with the electronic system,” that the court reporter would be
unable to transcribe a telephonic hearing. Accordingly, the respondent “used [his]
discretion and informed the coordinator to convey to the defense counsel that their
presence would be required because of that difficulty.” The respondent noted that it had
received Magnolia’s objection to his assignment, then took announcements from the
parties. The only attorneys to appear at the hearing were counsel for Flores and counsel
for Magnolia.
Magnolia’s counsel informed the respondent that he had “filed an objection to this
matter being assigned to [him] for a determination,” and asked “that this be referred to the
administrative judge for [her] to refer it to the Chief Justice of the Texas Supreme Court
to appoint a judge to hear the motion to recuse.” Magnolia’s counsel offered the
respondent a copy of its filed objection. Counsel asserted that “once an objection is filed,
it is not subject to hearing, determination.” In response, Flores’s counsel agreed that
“once the objection is filed, I don’t think there is anything that we can do from our end to
proceed.” The respondent stated that the objection needed to be made before “any
discretionary decisions,” and “yesterday a request was made from me via coordinators
and whatnot.” Magnolia’s counsel asserted that the request to appear telephonically
“must have been from other defense counsel” because “I always intended to be here this
morning.” Magnolia’s counsel asserted that “[w]hoever . . . contacted the court about a
telephonic hearing, it wasn’t us.” The respondent informed the parties that he believed
that he was not subject to an objection under § 74.053 because he was an “active” judge
who was acting under a current assignment. Finally, the respondent took testimony from
court staff, who testified that counsel for Chateau had called the court coordinator and
3
requested to appear at the hearing by telephone. After further discussion and argument
on the validity of Magnolia’s objection, the respondent denied Magnolia’s objection.
This original proceeding ensued. By one issue, Magnolia asserts that the
respondent erred by overruling its timely objection to the respondent’s assignment. In
support of its petition for writ of mandamus, relator filed: (1) a copy of Magnolia’s Motion
to Recuse; (2) a copy of the Order of Assignment; (3) a copy of the Order Setting Hearing
on Magnolia’s Motion to Recuse; (4) the Objection to Assignment; and (5) the transcript
of the January 31, 2020 hearing. Magnolia also filed an unopposed motion for emergency
relief, which this Court granted, ordering the trial court proceedings to be stayed. See
TEX. R. APP. P. 52.10(b).
The Court requested that the real party in interest, Flores, or any others whose
interest would be directly affected by the relief sought, including but not limited to Chateau
and Kingman, file a response to the petition for writ of mandamus. See id. R. 52.2, 52.4,
52.8. Flores filed a response to the petition for writ of mandamus. He asserts that an
objection to an assigned judge is not timely if it is made after any ruling in the case, and
the respondent’s out-of-court ruling made the day before the hearing, denying Chateau’s
request to appear telephonically, rendered Magnolia’s objection, filed later that same day,
untimely. Flores asserts that a ruling does not need to be made on the record in open
court to be considered in the context of determining the timeliness of an objection under
§ 74.053. He also contends that Chateau’s action in requesting to appear at the hearing
telephonically operated to waive Magnolia’s objection because Magnolia and Chateau
are “aligned” in the case as defendants. Flores also notes that the respondent stated on
the record that he is an “active” judge who is not subject to objection under the statute.
4
Kingman filed a “response” to the petition for writ of mandamus in support of
Magnolia’s petition. Kingman argues that Magnolia’s objection was timely, any out-of-
court communications regarding the telephonic hearing are insignificant, and the
respondent is a senior judge rather than an active judge, and therefore subject to a timely
objection under the government code. It requests that we grant Magnolia’s petition for writ
of mandamus.
Chateau did not file a response to the petition for writ of mandamus.
II. MANDAMUS
To obtain relief by writ of mandamus, a relator must establish that an underlying
order is void or a clear abuse of discretion and there is no adequate appellate remedy. In
re Nationwide Ins. Co. of Am., 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding); In re
Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding);
Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992) (orig. proceeding). An order is
void when a court has no power or jurisdiction to render it. Ad Villarai, LLC v. Pak, 519
S.W.3d 132, 137 (Tex. 2017) (per curiam). 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, 494 S.W.3d at 712; 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) (per curiam); In re Prudential
Ins. Co. of Am., 148 S.W.3d at 136. When an order is void, the relator need not
demonstrate the lack of an adequate remedy by appeal. See In re Sw. Bell Tel. Co., 35
S.W.3d 602, 605 (Tex. 2000) (orig. proceeding) (per curiam).
5
When a judge assigned under Chapter 74 of the government code overrules a
timely objection to his assignment, 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 such a case, 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) (per curiam); Flores v. Banner, 932 S.W.2d 500, 501 (Tex. 1996) (orig.
proceeding) (per curiam); In re Flores, 53 S.W.3d 428, 430 (Tex. App.—San Antonio
2001, orig. proceeding); see also In re Troiani, No. 13-17-00204-CV, 2017 WL 2806296,
at *3 (Tex. App.—Corpus Christi–Edinburg June 27, 2017, orig. proceeding) (mem. op.).
III. OBJECTIONS TO ASSIGNED JUDGE
The presiding judge of an administrative judicial region is authorized to assign
judges in the region to “try cases and dispose of accumulated business.” TEX. GOV’T CODE
ANN. § 74.056(a). A judge sitting by order of assignment has “all the powers of the judge
of the court to which he is assigned.” Id. § 74.059(a). The judges that may sit by
assignment are specified by statute, and include active, retired, or senior judges. See id.
§ 74.054; see also Zavala v. Salles, No. 13-18-00201-CV, 2019 WL 2847444, at *3 (Tex.
App.—Corpus Christi–Edinburg July 3, 2019, no pet.) (mem. op.) (distinguishing
associate judges and assigned judges). Section 74.053 of the Texas Government Code
governs the ability of parties to make objections to the assignment of trial judges and the
procedure for making such objections. See TEX. GOV’T CODE ANN. § 74.053. An active
judge who is assigned to a trial court under Chapter 74 of the government code is not
subject to an objection. Id. § 74.053(e).
6
“If a party to a civil case files a timely objection to the assignment, the judge shall
not hear the case.” Id. § 74.053(b). An objection pursuant to 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.” Id. § 74.053(c); see Collins v. D.R. Horton-
Tex. Ltd., 574 S.W.3d 39, 45 (Tex. App.—Houston [14th Dist.] 2018, pet. denied) (“The
objection filed on March 9 was therefore not timely because it was filed more than seven
days after the Collinses received actual notice of the visiting judge’s assignment.”); In re
S.N.Z., 421 S.W.3d 899, 907–08 (Tex. App.—Dallas 2014, pet. denied) (concluding that
an objection was untimely because the assigned judge had denied relator’s motion to
transfer venue before relator filed her objection). The presiding judge may extend the time
to file an objection under this section “on written motion by a party who demonstrates
good cause.” TEX. GOV’T CODE ANN. § 74.053(c).
A party cannot file a pro forma blanket objection, or other prophylactic objection,
to a hypothetical assigned judge before the assignment takes place. See Discovery
Operating, Inc. v. Baskin, 855 S.W.2d 884, 887 (Tex. App.—El Paso 1993, no writ) (“A
party does not possess the right to object to the assignment of a visiting judge before the
assignment takes place.”); see also Greer v. Reaux, No. 13-18-00433-CV, 2020 WL
948368, at *2 (Tex. App.—Corpus Christi–Edinburg Feb. 27, 2020, no pet. h.) (mem. op.);
In re S.Q., No. 04-18-00119-CV, 2018 WL 3129434, at *1 (Tex. App.—San Antonio June
27, 2018, pet. denied) (mem. op.); In re Carnera, No. 05-16-00055-CV, 2016 WL 323654,
at *2 (Tex. App.—Dallas Jan. 27, 2016, orig. proceeding) (mem. op.). A party may
withdraw a previously filed objection after it is filed. Clark v. Yarbrough, 900 S.W.2d 406,
7
410 (Tex. App.—Texarkana 1995, writ denied); see also In re Carnera, 2016 WL 323654,
at *2. And, a party can implicitly waive an objection when it participates in a proceeding
without advising the assigned judge that an objection was filed. See In re Approximately
$17,239.00, 129 S.W.3d 167, 168 (Tex. App.—Houston [14th Dist.] 2003, orig.
proceeding [mand. denied]) (per curiam) (holding that a party waived its objection to the
assignment by participating in a hearing but failing to inform the judge of its timely filed
objection); Tex. Emp’t Comm’n v. Alvarez, 915 S.W.2d 161, 163 (Tex. App.—Corpus
Christi–Edinburg 1996, no writ) (“Because the prohibition from hearing a case under
section 74.053 is nonconstitutional, we hold that the objection is waivable and must be
presented and ruled upon to trigger any mandatory prohibition.”); see also Zavala, 2019
WL 2847444, at *3 (“A party waives an objection when it participates in a proceeding
without advising the assigned judge that an objection was filed.”); In re S.Q., 2018 WL
3129434, at *1 (“[A] party impliedly withdraws an objection by participating in a hearing
or trial without advising the assigned judge that an objection has been filed and seeking
a ruling.”); In re Carnera, 2016 WL 323654, at *2 (stating that a party may “impliedly”
withdraw a previously filed objection “when it participates in a proceeding without advising
the assigned judge that an objection has been filed”).4
4 We considered a different issue in St. Cosmas Corp. v. Flores, No. 13-15-00017-CV, 2017 WL
1479433, at *1–2 (Tex. App.—Corpus Christi–Edinburg Apr. 20, 2017, no pet.) (mem. op.). In that case,
the appellant timely filed an objection to the assignment and did not participate at the hearing under
consideration. Id. at *2. The appellee argued that the appellant waived its objection to the assigned judge
because the objection was “never presented” and “never ruled on.” Id. at *3. We held that the issue had not
been waived and the assigned judge’s disqualification was mandatory because the appellant had filed a
timely objection to the assignment. Id. We further noted that “disqualification of a judge is a jurisdictional
issue that cannot be waived.” Id. (quoting Freedom Commc’ns, Inc. v. Coronado, 372 S.W.3d 621, 624
(Tex. 2012)). St. Cosmas Corp. is distinguishable from the cases discussed infra because it did not include
affirmative acts of waiver by the objecting party, such as participating in a hearing so as to give the
appearance of “sampling” the assigned judge’s rulings. See id.
8
If a properly filed objection under this statute is timely, “the assigned judge’s
disqualification is automatic.” In re Canales, 52 S.W.3d at 701; see id. § 74.053(b) (stating
that “the judge shall not hear the case”); Flores, 932 S.W.2d at 501 (“When a party files
a timely objection to an assigned judge under section 74.053 of the Texas Government
Code, the assigned judge’s disqualification is mandatory.”); see also In re Honea, 415
S.W.3d 888, 890 (Tex. App.—Eastland 2013, orig. proceeding). The statute requires an
immediate objection to an assigned judge to prevent parties from attempting to “sample”
the judge before objecting. In re Canales, 52 S.W.3d at 703; see Collins, 574 S.W.3d at
45; In re Approximately $17,239.00, 129 S.W.3d at 168–69; see also In Logic Sciences,
Inc. v. Smith, 798 S.W.2d 394, 395 (Tex. App.—Houston [1st Dist.] 1990, orig.
proceeding) (“To allow untimely objections such as this would encourage litigants to delay
objections until they ‘get a feeling’ for how a judge is going to rule in a case—a situation
the statute is designed to prevent.”). Thus, a timely objection to a judge assigned under
Chapter 74 of the Texas Government Code is automatically effective and any subsequent
order rendered by the assigned judge is void. In re Canales, 52 S.W.3d at 701; see also
Greer, 2020 WL 948368, at *2.
IV. ANALYSIS
By one issue, Magnolia contends that the respondent erred by overruling its
objection to his assignment. Flores urges that the respondent is not subject to an objection
under § 74.053 because he is an active judge; that Magnolia’s objection was not timely
because the respondent had made a ruling in the case requiring Chateau’s counsel to
appear in person, rather than telephonically, at the hearing on the motion to recuse; and
9
that Chateau’s request for relief should be attributed to Magnolia because they are
aligned parties.
We first address whether the respondent was subject to an objection as an
assigned judge under the government code. As stated previously, § 74.053 expressly
provides that an “active judge assigned under this chapter is not subject to an objection.”
TEX. GOV’T CODE ANN. § 74.053(e). The government code defines an “active judge” as “a
person who is a current judicial officeholder.” Id. § 74.041(4). Here, the Presiding Judge
of the Fifth Administrative Judicial Region assigned the respondent to determine the
motion to recuse under Chapter 74. Her order designates the respondent as a “Senior
Justice.” There is no contrary evidence in the record. Accordingly, we conclude that the
respondent was subject to a timely objection under the government code. See id.
Second, we determine whether Magnolia’s objection to the respondent’s
assignment was timely. As stated previously, on January 24, 2020, the Presiding Judge
of the Fifth Administrative Judicial Region signed the order assigning the respondent to
determine Magnolia’s motion to recuse; that same day, the respondent signed an “Order
Setting Hearing on [Magnolia’s] Motion to Recuse,” which set that hearing to occur on
January 31, 2020, at 10:00 a.m.; on January 29, 2020, the Presiding Judge’s order of
assignment was filed; on January 30, 2020, at 3:56 p.m., Magnolia filed its “Objection to
Assignment.” According to testimony presented at the hearing, Chateau had contacted
the court coordinator sometime during the day on January 30, 2020 to request
participation in the hearing by telephone.
The parties do not dispute that Magnolia’s objection was filed “not later than the
seventh day after the date that [it] receive[d] actual notice of the assignment.” Id.
10
§74.053(c). The timeliness of the objection here hinges on whether it was filed “before
the date the first hearing or trial, including pretrial hearings, commences.” Id. We turn our
attention to this language. In so doing, we note that our review is a matter of statutory
construction. See In re Hourani, 20 S.W.3d 819, 821 (Tex. App.—Houston [14th Dist.]
2000, orig. proceeding); Perkins v. Groff, 936 S.W.2d 661, 664 (Tex. App.—Dallas 1996,
writ denied).5
The government code expressly provides that the objection must be filed “before
the date the first hearing or trial, including pretrial hearings, commences,” which comports
with the Texas Supreme Court’s holding, construing the predecessor statute, 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 § 74.053).
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. Cases interpreting § 74.053 and its predecessor have used varying terminology in
determining the timeliness of an objection when made in the context of trial court
proceedings.6
5 The Legislature amended § 74.053 and these changes, effective September 1, 2003, apply to this
case. Act of May 27, 2003, 78th Leg., R.S., ch. 315, § 23, 2003 Tex. Sess. Law Serv. 1342 (amendments
apply to cases pending or commenced on or after September 1, 2003). The former and current statutes
allow parties to object to assigned judges by filing a timely objection. Act of May 27, 2003, 78th Leg., R.S.,
ch. 315, § 10, 2003 Tex. Sess. Law Serv. 1338 (codified at TEX. GOVT. CODE ANN. § 74.053(b)). In 2003,
changes were made to this section defining when an objection is timely. Accordingly, we view cases
decided prior to this date, which construe the statutory language, to be instructive but not controlling, and
our focus remains, as it must, on the current statutory language.
6 See Dunn v. Street, 938 S.W.2d 33, 34 (Tex. 1997) (orig. proceeding) (per curiam) (“The objection
was timely because it was filed before the first hearing or trial over which Respondent was to preside.”);
Flores v. Banner, 932 S.W.2d 500, 501 (Tex. 1996) (orig. proceeding) (per curiam) (“The objection is timely
if the party files it before the first hearing or trial over which the assigned judge is to preside.”); In re S.N.Z.,
421 S.W.3d 899, 908 (Tex. App.—Dallas 2014, pet. denied) (“[W]e conclude Mother’s objection was not
11
Here, we are called on to decide whether the 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. There are
several cases which specifically consider what type of judicial proceedings constitute “the
first hearing or trial, including pretrial hearings,” which would render an objection untimely
under the code. In Lee v. Bachus, 900 S.W.2d 390, 392 (Tex. App.—Texarkana 1995,
orig. proceeding), for instance, a party filed its objection to an assigned judge after the
court had conducted a docket call for thirty-seven different cases, including the one at
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.) (concluding that an objection was waived when not made “at any time before,
during, or after the hearing”); In re M.A.V., 40 S.W.3d 581, 584 (Tex. App.—San Antonio 2001, no pet.)
(“Because the record does not indicate that either party made any formal requests or motions during that
meeting, or that the trial judge ruled on the merits of any issue, we cannot assume that a hearing, as
contemplated by section 74.053, was held before M.A.V. filed his motion.”); In re Hourani, 20 S.W.3d 819,
823–24 (Tex. App.—Houston [14th Dist.] 2000, orig. proceeding) (stating that “the trial court may not set a
time for a section 74.053(b) objection that is inconsistent with the plain terms of the statute” and noting that
an objection must be made “before the visiting judge takes action on the case” and the “window of
opportunity terminates when the first hearing or trial ‘over which the assigned judge is to preside’ begins”);
Mercer v. Driver, 923 S.W.2d 656, 658 (Tex. App.—Houston [1st Dist.] 1995, orig. proceeding) (“An
objection under 74.053 is timely if it is made at any time before the assigned judge, sitting on the bench
and in open court, calls the case to hearing or to trial.”); Lee v. Bachus, 900 S.W.2d 390, 391 (Tex. App.—
Texarkana 1995, orig. proceeding) (holding that an objection filed before the assigned judge called the case
to trial, but after docket call, was timely and stating that an “objection is timely if it is made before the first
hearing or trial, including pretrial hearings, over which the judge is to preside” and the “objection must be
made before the assigned judge, sitting on the bench and in open court, calls the case to hearing or to
trial”); Amateur Athletic Found. of Los Angeles v. Hoffman, 893 S.W.2d 602, 603 (Tex. App.—Dallas 1994,
no writ) (holding that an objection is timely if made before the assigned judge, sitting on the bench and in
open court, calls the case to hearing or to trial); Garcia v. Emp’rs Ins. of Wausau, 856 S.W.2d 507, 509
(Tex. App.—Houston [1st Dist.] 1993, writ denied) (same); Rubin v. Hoffman, 843 S.W.2d 658, 659 (Tex.
App.—Dallas 1992, no writ) (same); Kellogg v. Martin, 810 S.W.2d 302, 304 (Tex. App.—Texarkana 1991,
orig. proceeding) (same); Brown v. Mulanax, 808 S.W.2d 718, 720 (Tex. App.—Tyler 1991, orig.
proceeding) (same); Lewis v. Leftwich, 775 S.W.2d 848, 850–51 (Tex. App.—Dallas 1989, no writ) (“We
hold that 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.”); see also 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.”); Pavecon, Inc. v. Liese, No. 05-01-01389-CV, 2002 WL
1895436, at *1 (Tex. App.—Dallas Aug. 19, 2002, no pet.) (mem. op.) (concluding that a docket call or
ministerial proceedings did not constitute a “ruling” within the scope of the statute and the objection was
not waived where there was no “motion, consideration, or ruling on any affirmative issue before the
objection was filed”).
12
issue. Id. at 391. The court concluded that the docket call did not constitute a pretrial
hearing, a hearing, or trial as those terms are used within § 74.053. Id. Thus, there, the
party’s objection to the assignment was not waived by appearing at a docket call. Id.
In Lewis v. Leftwich, 775 S.W.2d 848 (Tex. App.—Dallas 1989, no writ), the Dallas
Court of Appeals rejected an argument that an objection was untimely when it was made
after the court coordinator telephoned counsel to advise them that the case had been
called for trial and that an assigned judge would hear the case. Id. at 848–51. The court
acknowledged that Lewis had tendered his objection prior to appearing before the
assigned judge and concluded that “the court coordinator’s telephone call is without
significance” in its analysis regarding timeliness. Id. at 849. The court stated that “[s]uch
a telephone call simply advises the parties that a case is tentatively set for trial; it is notice
that a case is being called for trial. It is not the same thing, however, as a case being
called to trial by a judge who has taken the bench.” Id.; see also Pavecon, Inc. v. Liese,
No. 05-01-01389-CV, 2002 WL 1895436, at *1 (Tex. App.—Dallas Aug. 19, 2002, no pet.)
(mem. op.) (noting that neither a docket call nor a trial court’s ministerial action in
recessing a hearing to allow a party’s appearance is a “ruling” and stating that “[w]e do
not believe that when the statute speaks of a ‘hearing,’ or when cases speak of a ‘ruling,’
they contemplate this kind of administrative synchronization of trial participants”).
In Perkins v. Groff, the Dallas Court of Appeals subsequently considered “whether
an objection is timely within the meaning of § 74.053 if it is lodged after the assigned
judge considers a party’s requests for relief and makes rulings in the case, but does so
without receiving oral argument from counsel while sitting on the bench in open court.”
936 S.W.2d at 664. There, Perkins lodged his objection to the assigned judge before the
13
first hearing in open court, but after the assigned judge had considered and ruled on two
of Perkins’ motions. Id. at 663–64. The court concluded “that section 74.053 requires an
objection before the assigned judge makes any rulings in the case, even if not in open
court.” Id. at 664. In so ruling, the Dallas court surveyed numerous cases and clarified its
holding in Lewis. Id. at 664–67. The court held:
[W]hen a party files a motion requesting affirmative relief and the judge
considers the merits of the arguments and rules on the matter, there has
been a hearing within the meaning of section 74.053. The statute
contemplates a presentation of argument accompanied by judicial
examination and a ruling. To constitute a “hearing,” oral argument is not
necessary. Further, a “hearing” need not take place in a courtroom while
the assigned judge sits on the bench in the presence of counsel. . . . We
consider this to be the just and reasonable result intended by the legislature
when it enacted section 74.053.
Id. at 666.7
The San Antonio Court of Appeals rejected an argument that participation in an in-
chambers conference waived a party’s objection to an assigned judge. In re M.A.V., 40
S.W.3d 581, 584 (Tex. App.—San Antonio 2001, no pet.). There, the parties and the
assigned judge had engaged in a conference in chambers regarding whether the
defendant wished to raise a competency issue at trial, and the assigned judge instructed
the defendant that if he wanted to raise such an issue, he should file the required
documents by certain date. Id. at 583–84. The defendant subsequently filed an objection
to the assigned judge. Id. at 584. At the hearing held thereafter, the assigned judge and
the State took the position that the in chambers meeting constituted a hearing, with
7 The Texas Supreme Court held in Gulf Coast Investment Corp. v. Nasa 1 Business Center., 754
S.W.2d 152 (Tex. 1988) (per curiam), that “[u]nless required by the express language or the context of the
particular rule, . . . the term ‘hearing’ does not necessarily contemplate either a personal appearance before
the court or an oral presentation to the court.” Id. at 153; see also Enriquez v. Livingston, 400 S.W.3d 610,
616 (Tex. App.—Austin 2013, pet. denied).
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accompanying ruling, which would render the defendant’s objection to the assignment
untimely. Id. The San Antonio court rejected this argument: “Because the record does not
indicate that either party made any formal requests or motions during that meeting, or
that the trial judge ruled on the merits of any issue, we cannot assume that a hearing, as
contemplated by section 74.053, was held before M.A.V. filed his motion.” Id. The court
thus held that the defendant’s objection was timely. Id.
Based on the foregoing, we conclude that the sequence of events at issue here—
Chateau’s 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 Magnolia’s objection as untimely. While a hearing
need not occur in open court, and a ruling need not be made from the bench, the actions
here did not arise from a party’s filed motion, include the presentation of argument, or
necessitate a judicial examination and a ruling. See, e.g., In re M.A.V., 40 S.W.3d at 584;
Perkins, 936 S.W.2d at 664. Rather, these events are more properly characterized as
out-of-court administrative matters occurring in preparation for a hearing. See, e.g.,
Lewis, 775 S.W.2d at 849–50; see also Pavecon, Inc., 2002 WL 1895436, at *1.
We next address the argument that Chateau’s ex parte request to the court
coordinator to allow its participation by telephone waived Magnolia’s objection to the
assignment. As stated previously, Flores argues that the respondent acted within its
discretion in determining that Chateau and Magnolia were aligned parties. Under
§ 74.053, a “party” is defined as to include “multiple parties aligned in a case as
determined by the presiding judge.” TEX. GOV’T CODE ANN. § 74.053(g). We reject this
argument. The discretion to determine alignment is vested in the presiding judge, not the
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assigned judge. See id. Moreover, this issue was not raised in the hearing below and
there is nothing in the record suggesting that any such finding was made. Further, case
law rejects the concept that an ex parte contact by a fellow party can operate to waive
another party’s objection to the assignment. See In re Cuban, 24 S.W.3d 381, 383 (Tex.
App.—Dallas 2000, orig. proceeding) (“The first hearing before [the assigned judge] was
ex parte. Cuban cannot be held to have waived his objection to [the assigned judge]
because Cuban did not file it before a hearing was conducted without notice to him. To
hold otherwise would render meaningless the right to object.”); see also In re M.A.S., No.
05-03-00401-CV, 2005 WL 1039967, at *1 (Tex. App.—Dallas May 5, 2005, no pet.)
(mem. op.).
Based on the foregoing analysis, Magnolia’s objection to the respondent’s
assignment was timely. Therefore, the respondent’s disqualification was automatic. See
TEX. GOV’T CODE ANN. § 74.053(b); In re Canales, 52 S.W.3d at 701; Flores, 932 S.W.2d
at 501. Further, Magnolia need not show that it lacks an adequate remedy by appeal to
be entitled to mandamus relief. See Dunn, 938 S.W.2d at 34; Flores, 932 S.W.2d at 501.
We sustain Magnolia’s sole issue.
V. CONCLUSION
The Court, having examined and fully considered the petition for writ of mandamus,
the responses filed by Flores and Kingman, and the applicable law, is of the opinion that
Magnolia has met its burden to obtain mandamus relief. Magnolia’s objection was timely,
and the respondent’s disqualification was automatic. See In re Canales, 52 S.W.3d at
701. Accordingly, we lift the stay previously imposed in this case. See TEX. R. APP. P.
52.10(b) (“Unless vacated or modified, an order granting temporary relief is effective until
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the case is finally decided.”). We conditionally grant the petition for writ of mandamus and
direct the respondent to vacate the orders, if any, that it has issued subsequent to the
objection and to withdraw from any further proceedings in this matter. Our writ will issue
only if the respondent fails to comply.
DORI CONTRERAS
Chief Justice
Delivered and filed the
14th day of April, 2020.
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