In Re the State of Texas Ex Rel. Brian W. Wice, Relator

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-93,089-01
In re STATE OF TEXAS, ex rel. BRIAN W. WICE, relator
ON APPLICATION FOR A WRIT OF MANDAMUS
AGAINST THE FIRST COURT OF APPEALS
RICHARDSON, J., delivered the opinion of the Court in which HERVEY, NEWELL,
WALKER, SLAUGHTER, and MCCLURE, JJ., joined. SLAUGHTER, J., filed a concurring opinion
in which RICHARDSON, NEWELL, and MCCLURE, JJ., joined. KELLER, P.J., filed a dissenting
opinion in which KEEL, J., joined. YEARY, J., filed a dissenting opinion.
OPINION
Judge George Gallagher, elected judge for the 396th District Court in the Eighth
Administrative Judicial Region, was specifically assigned by Presiding Judge Mary
Murphy of the First Administrative Judicial Region to preside over State v. Paxton in the
416th District Court in the First Administrative Judicial Region in July of 2015. The issue
before this Court, on mandamus, is whether Judge Gallagher had the constitutional and
statutory authority to preside over State v. Paxton when he granted a change of venue to
Harris County in April of 2017. 1 We hold that he did, regardless of any other assignment
0F
orders that were issued by Presiding Judge David Evans. We, therefore, conditionally grant
the State’s petition for writ of mandamus.
I. Background
A. How Judge Gallagher Became the Judge Presiding Over This Case
In 2015, a Collin County Grand Jury returned three felony indictments against the
Real-Party-in-Interest, Warren Kenneth Paxton, Jr. These cases were assigned to the 416th
District Court of Collin County. The 416th District Court is in the First Administrative
Judicial Region and Judge Chris Oldner was the judge presiding at that time. Judge Oldner
voluntarily recused himself from the case and “referred” it to Presiding Judge Mary
Murphy of the First Administrative Judicial Region. 2 Presiding Judge Murphy requested
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1
In his dissent, Judge Yeary claims the “real” issue is whether the Harris County District
Court judges had “any authority at all to send the case back to Collin County. The Court’s analysis
misses this critical point.” J. Yeary’s Dissent, at *1. There was only one issue raised by Real-Party-
in-Interest to void or reverse Judge Gallagher’s decision. Specifically, in April of 2017, Real-
Party-in-Interest claimed Judge Gallagher had no authority to preside over the case because the
orders from the regional presiding judge of the Eighth Administrative Judicial Region had expired.
That sole issue was raised in motions before two district judges in Harris County, the First Court
of Appeals, and on mandamus before our Court. Any other grounds are not mentioned in the
record. What either Judges Johnson or Luong might have been thinking is pure speculation.
Franklin v. State, 693 S.W.2d 420, 431 (Tex. Crim. App. 1985) (disallowing consideration of
assertions not supported by the record on appeal). Moreover, those speculative reasons could only
have been raised on direct appeal, not via the claim that Judge Gallagher had no authority to act.
See e.g., Gregory v. State, 37 S.W. 752, 752 (Tex. Crim. App. 1896).
2
App. to Real-Party-in-Interest Paxton’s Response to Relator’s Petition for Writ of
Mandamus [hereinafter Paxton App.], at *006 (“Voluntary Recusal”); TEX. R. CIV. P. 18a(f)(1)(B),
18b; see Arnold v. State, 853 S.W.2d 543, 544 (Tex. Crim. App. 1993) (affirming DeBlanc v. State,
799 S.W.2d 701 (Tex. Crim. App. 1990)’s implicit holding that TEX R. CIV. P. 18a applies to
criminal cases).
2
and assigned Judge Gallagher, an elected district court judge sitting outside the First
Administrative Judicial Region, to preside over this case.
At the heart of this dispute are three “assignment orders” issued by two regional
presiding judges (Presiding Judges David Evans and Mary Murphy) from different
administrative judicial regions. We will refer to them in order as Assignment Order I by
Presiding Judge Evans signed on July 28, 2015; Assignment Order II by Presiding Judge
Murphy signed on July 29, 2015; and Assignment Order III by Judge Evans signed on
December 21, 2015.
3
Assignment Order I 2F
On July 28, 2015, Presiding Judge David Evans of the Eighth Administrative
Judicial Region issued the following order:
Pursuant to Section 74.056, Texas Government Code, I assign the
Honorable George Gallagher, District Judge of the 396th Court to the
1st Administrative Judicial Region for reassignment by the Presiding
Judge thereof.
“Presiding Judge” is the statutory title of a judge charged with overseeing one of the eleven
administrative judicial regions in Texas. TEX. GOV’T CODE § 74.041(2). Except when referring to
them by title, we will refer to them as “regional presiding judges” for the sake of clarity in this
opinion.
3
Paxton App., at *006 (“The State of Texas Eighth Administrative Judicial Region Order
of Assignment by the Presiding Judge, July 28, 2015” [hereinafter Assignment Order I]). Though
the title uses the term “assignment,” we note that it merely assigns an active district judge to
another administrative judicial region for “reassignment.” Rather than actually assigning Judge
Gallagher to a specific court or case, it generally and effectively assigns the judge to another
region.
3
The judge is assigned for a period of 157 days, beginning July 28th,
2015. If the judge begins a trial on the merits during the period of this
assignment, the assignment continues in such case until plenary jurisdiction
has expired or the undersigned Presiding Judge has terminated this
assignment in writing, whichever comes first. 4 3F
This order purports to assign Judge Gallagher to the First Administrative
Judicial Region, so Judge Murphy could then “reassign” him to any court or case
within the First Region; however, this assignment order expired on December 31,
2015. 5
4F
6
Assignment Order II 5F
The next day, on July 29, 2015, Presiding Judge Murphy, pursuant to Section
74.056, Texas Government Code 7 (as noted on the order), assigned Judge Gallagher to the
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416th District Court of Collin County for the case against the Real-Party-in-Interest:
4
Assignment Order I.
5
We note, as an elected judge, Judge Gallagher continued to preside over his own court,
the 396th District Court in Tarrant County, in the Eighth Judicial Administrative Region during
the entire period of this case.
6
Paxton App., at *007 (“The State of Texas First Administrative Judicial Region Order of
Assignment by the Presiding Judge, July 29, 2015” [hereinafter Assignment Order II]).
7
As relevant in Section 74.056 of the Texas Government Code:
ASSIGNMENT BY PRESIDING JUDGE
(a) A presiding judge from time to time shall assign the judges of the administrative region
to hold special or regular terms of court in any county of the administrative region to
try cases and dispose of accumulated business.
(b) The presiding judge of one administrative region may request the presiding judge of
another administrative region to furnish judges to aid in the disposition of litigation
pending in a county in the administrative region of the presiding judge who makes the
request.
4
This assignment is for the cause(s) and style(s) as stated in the
conditions of assignment from this date until plenary power has expired or
the undersigned Presiding Judge has terminated this assignment in writing,
whichever occurs first.
CONDITIONS OF ASSIGNMENT
NOS. 416-81913-2015, 416-81914-2015, 116-81915-2015; State of
Texas v. Warren Kenneth Paxton, Jr.
In addition, whenever the assigned Judge is present in the county of
assignment for a hearing in the above cause(s), the Judge is also assigned and
empowered to hear, at that time, any other matters presented for hearing. 8 7F
This was the only case Judge Murphy assigned Judge Gallagher to preside over in
the First Administrative Judicial Region during the dates in question. Judge Gallagher was
still presiding over matters on the case through April of 2017. Furthermore, as far as the
record shows, Judge Gallagher never exercised his statutory right to object to his
assignment to the case. 9 Unlike Presiding Judge Evans’s orders, Presiding Judge Murphy’s
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order did not have an expiration date, nor did she ever terminate Judge Gallagher’s
assignment.
8
Assignment Order II.
9
See TEX. GOV’T CODE § 74.060(a) (“An active judge may not, without the judge's consent,
be assigned out of the judge's district or county for more than 10 calendar days in a year.”).
5
10
Assignment Order III 9F
Pre-trial matters continued through 2015. On December 21, 2015, Presiding Judge
Evans extended Judge Gallagher’s assignment to the First Administrative Judicial Region.
This order stated:
[District Judge Gallagher] is assigned for a period of 366 days,
beginning January 1, 2016. If the judge begins a trial on the merits during the
period of this assignment, the assignment continues in such case until plenary
jurisdiction has expired or the undersigned Presiding Judge has terminated
this assignment in writing, whichever occurs first. 11 10F
There was no express language in Assignment Order III extending Judge
Gallagher’s assignment to the First Administrative Judicial Region after January 1, 2017,
absent the commencement of trial. 12 Specifically, it is Judge Evans’s second order
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(Assignment Order III) that both the trial court and court of appeals relied upon to
invalidate Judge Gallagher’s order changing venue to Harris County, because it conflicted
with Judge Murphy’s assignment order. Assignment Order III expired on January 1, 2017
and no subsequent order with a new expiration date was ever issued.
10
Paxton App., at *008 (“The State of Texas 8th Administrative Judicial Region Order of
Assignment by the Presiding Judge, December 21, 2015” [hereinafter Assignment Order III]).
11
Assignment Order III.
12
We note that the emails between the administrative assistants for the First and Eighth
Presiding Judges demonstrate on their face that the Presiding Judge Evans of Judge Gallagher’s
home region intended to keep Judge Gallagher assigned to the First Administrative Judicial Region
past the January 2017 expiration of Assignment Order III. See App. to State’s Petition for Writ of
Mandamus, at Tab 31. Skepticism about the formality requirements of an assignment order have
been previously expressed. See Ex parte Reed, No. WR-50,961-10, 2019 WL 6108568, at *1–2
(Tex. Crim. App. Nov. 15, 2019) (Keasler J., concurring) (reasoning against reading the four
corners of an assignment order as fully controlling).
6
B. How the Change in Venue to Harris County Came About
Pre-trial matters continued past the 366 days stated in Assignment Order III. On
February 9, 2017, the State filed a motion to change venue. Judge Gallagher granted the
State’s motion on March 29, 2017 without deciding the new venue. Real-Party-in-Interest
timely objected to the venue transfer, which was overruled by Judge Gallagher. On March
30, 2017, Judge Gallagher sent an email to the parties offering them options to consider for
the new venue:
The options that I am making known regarding change of venue are as
follows:
Option 1. Article 31.02 of CCP [the Code of Criminal Procedure] mandates
that I transfer to [an] adjoining district. If I follow the statute, I will transfer
to Dallas County. There is a ceremonial courtroom that I believe is located
in their civil courts building that may be available.
Option 2. I would transfer to Harris County. It is my understanding that there
is a ceremonial courtroom in the criminal building that may be available.
Additionally, I recognize that the majority of the lawyers are from Harris
County which I would hope assist you.
Option 3. I would transfer to Tarrant County. In our building, we have four
vacant courtrooms as a result of our civil courts moving to a new
building. . . . The remaining courtrooms would be set aside for the state and
the defense respectively as your “war rooms.” The state would have sole
access to their room and the defense would have sole access to their room.
This could allow everyone to have a place to work while the trial was being
conducted.
If any of you have other options, I am open to suggestion.
***
If we do an option other than No. 1, it will require it be done by agreement.
I would make sure that the record reflected that, if agreed to transfer to a non-
7
adjoining county, it would NOT constitute a waiver of the underlying
objections to granting of the motion for change of venue. 13 12F
On April 10, 2017, Judge Gallagher conducted a hearing on where the new venue should
be. During that hearing, both parties agreed to transfer the case to Harris County—a non-
contiguous county. 14 On April 11, 2017, Judge Gallagher issued a written order
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designating the new venue to be Harris County. 15 14F
On May 10, 2017, Real-Party-in-Interest filed an objection to all rulings made by
Judge Gallagher after January 1, 2017, and filed a corresponding motion to return the case
to the regional presiding judge covering Collin County (Presiding Judge Murphy). Real-
Party-in-Interest argued that Judge Gallagher’s authority lapsed when Assignment Order
III expired at 12:00 a.m. on January 2, 2017.
On May 15, 2017, Real-Party-in-Interest filed a Petition for Writ of Mandamus in
the Fifth Court of Appeals challenging Judge Gallagher’s continued involvement in the
case. The Fifth Court of Appeals found Collin County lost jurisdiction immediately after
13
See Paxton App., at *082.
14
See Paxton App., at *080–081 (Telephonic Hearing on State’s Motion for Change of
Venue, (4 RR 8)). We note that even though the Real-Party-in-Interest agreed to the transfer to
Harris County, he preserved his objections to the change in venue.
15
Although Article 31.02 of the Code of Criminal Procedure requires the new venue to be
an “adjoining district,” there is no dispute that Judge Gallagher had authority to choose Harris
County. As shown above, the parties consented to it after Judge Gallagher warned them about the
requisites of Article 31.02. Ex parte Watson, 601 S.W.2d 350, 351 (Tex. Crim. App. 1980)
(“Improper venue, unlike jurisdiction, may be waived by the defendant’s failure to object at
trial. . . . Unlike jurisdiction, venue may be acquired by consent.”). Thus, Judge Gallagher had
discretion, as part of being a constitutionally elected judge, to choose Harris County.
8
Judge Gallagher signed the order changing venue to Harris County on April 11, 2017. 16 15F
Any rulings made after that April 11, 2017 venue transfer order were void and the Collin
County District Clerk was to transfer the case files to Harris County. 17 On June 9, 2017,
16F
the case was transferred to Harris County. 18 17F
C. The Dispute Over Where The Case Belongs and to Which Judge Continued
Because he lacked the consent of all parties to go with the case, Judge Gallagher did
not continue to preside over the case after the change of venue. 19 Thus, upon transfer to
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Harris County, the case was assigned to Judge Robert Johnson of the 177th District Court
of Harris County. 20 On July 18, 2019, over two years later, Real-Party-in-Interest filed a
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motion “to set aside change of venue as void and return cases to Collin County, Texas.” 21 20F
A year later on June 25, 2020, Judge Johnson granted Real-Party-in-Interest’s motion to
set aside Judge Gallagher’s April 11, 2017 venue transfer order as void and ordered the
case be returned to Collin County. 22 21F
16
In re Paxton, Nos. 05-17-00507-CV, 05-17-00508-CV, & 05-17-00509-CV, 2017 WL
2334242, at *4 (Tex. App—Dallas May 30, 2017, orig. proceeding).
17
Id. at *5; TEX. CODE CRIM. PROC. art. 31.05.
18
In re State ex rel. Wice, 629 S.W.3d 715, 719–20 (Tex. App—Houston [1st Dist.] 2021,
orig. proceeding).
19
TEX. CODE CRIM. PROC. art. 31.09(a); In re Paxton, 2017 WL 2334242, at *5.
20
Id.21
Paxton App., at *269.
22
Id. at *152.
9
The State filed a petition for writ of mandamus in the First Court of Appeals asking
to vacate Judge Johnson’s June 25, 2020 order returning the case to Collin County.
However, on July 6, 2020, Judge Johnson voluntarily recused himself and referred the case
to Presiding Judge Susan Brown of the Eleventh Administrative Judicial Region for
reassignment. 23 The case was then reassigned to Judge Jason Luong of the 185th District
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Court in Harris County. 24 The First Court of Appeals abated the matter to allow Judge
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Luong to reconsider Judge Johnson’s order returning the case to Collin County. 25 On 24F
October 23, 2020, Judge Luong held that he lacked jurisdiction to reconsider the matter
since the case was transferred back to Collin County immediately after Judge Johnson
23
See Russell v. Harris Cty., 500 F. Supp. 3d 577 (S.D. Tex. 2020). Judge Johnson
subsequently recused himself. See Paxton App., at *153–58.
24
In re State ex rel. Wice, 629 S.W.3d at 718.
25
App. to State’s Petition for Writ of Mandamus, at Tab 15 (“Order of Abatement”).
10
signed the June 25, 2020 order. 26 Judge Luong alternatively held if in fact he had
25F
jurisdiction to consider the underlying merits, he would void the order transferring venue. 27 26F
D. The First Court of Appeals’s Decision—Judge Gallagher’s Authority Had
“Expired”
On May 27, 2021, a divided First Court of Appeals denied the State’s petition for
writ of mandamus. 28 In their analysis, the lower appellate court applied specific-controls-
27F
over-general and earlier-controls-over-later-terms principles to Assignment Orders I, II,
and III. The court of appeals found that Judge Gallagher’s authority under Assignment
Order I (extended by Assignment Order III) had expired when Judge Gallagher entered the
April 11, 2017 venue transfer order moving the case to Harris County. Per the First Court
of Appeals, the later, general Assignment Order II to the case was controlled by the earlier,
26
App. to State’s Petition for Writ of Mandamus, at Tab 16 (“Order on Reconsideration of
Prior Order Vacating Order of Transfer to Harris County, Texas”). Specifically, Judge Luong’s
order stated:
Accordingly, this Court is without jurisdiction to review the challenged
order or any pending motions in these cases.
In the alternative, if it is determined by the First Court of Appeals, or by any
other or higher appellate court that the 185th Judicial District Court does have
jurisdiction to review and reconsider the June 25, 2020 Order, it is the Court’s
finding that Judge Gallagher was without jurisdiction to enter the March 30, 2017
order, that the March 30 2017 order and related venue orders should be set aside,
and that the Harris County District Clerk’s file should be transferred to the Collin
County District Clerk.
Id.
27
Id.
28
In re State ex rel. Wice, 629 S.W.3d at 718.
11
specific Assignment Order I to the region. But Justice Goodman dissented and argued that
Article V, Section 11 of the Texas Constitution provided Judge Gallagher with the
authority to issue the venue transfer order, after his assignment order to the First
Administrative Judicial Region expired. 29 Justice Goodman noted in his concurring and
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dissenting opinion:
“As for the majority's contention that applying Article V, Section 11 in this
instance would undermine the Court Administration Act, the majority puts
the cart before the horse. Our Constitution is supreme. If its provisions
undermine a statute, it is the statute in this case that must give way. Courts
have repeatedly said so with respect to Article V, Section 11 of our
Constitution.” 30 29F
On September 21, 2021, the First Court of Appeals denied en banc
reconsideration. 31 Justice Guerra wrote in dissent to the denial of en banc reconsideration
30F
arguing the opposite. Justice Guerra reasoned, that Assignment Order I (the July 28, 2015
order assigning Judge Gallagher to the First Administrative Judicial Region) was the actual
“general” order and Assignment Order II assigning Judge Gallagher to the Real-Party-in-
Interest’s case was the actual “specific” order. Hence, Judge Gallagher was authorized to
29
Id. at 728–31 (Goodman, J., concurring & dissenting).
30
Id. at 731.
31
In re State ex rel. Wice, 634 S.W.3d 370, 370 (Tex. App—Houston [1st Dist.] 2021, orig.
proceeding) (mem. op.).
We note that the assignments of elected, visiting, and retired judges are a routine practice
across the State, and the resolution of this original proceeding is likely to guide the interpretation
of assignment orders.
12
preside over the case until its conclusion. 32 In short, Judge Guerra opined that the order
31F
signed by Presiding Judge Murphy of the First Administrative Judicial Region should carry
the day: “By using the incorrect labels to interpret the assignment orders, the majority
opinion renders the specific assignment meaningless.” 33 32F
II. The Issue Before This Court
The State then filed this petition for writ of mandamus. In this second original
proceeding, the State seeks to compel the trial court (Judge Johnson presiding initially
followed by Judge Luong) to vacate its order voiding Judge Gallagher’s order transferring
venue to Harris County returning the felony prosecutions of the Real-Party-in-Interest back
to Collin County.
The question now before this Court begins with whether Judge Johnson and Judge
Luong had the authority to void Judge Gallagher’s change of venue order. The answer to
this question will depend on whether Judge Gallagher had the authority to issue the change
of venue. 34 As we stated before, this is the only issue briefed, argued, and presented to all
33F
the courts involved in this matter. The act of voiding Judge Gallagher’s change of venue is
32
Id. at 371–75 (Guerra, J., dissenting).
33
Id. at 371–74.
34
We only deal with the authority to make the change of venue—not the place of venue.
The latter question can only be appropriately addressed on direct appeal. See e.g., Gregory v. State,
37 S.W. 752, 752 (Tex. Crim. App. 1896) (finding that changes of venue based on the State’s
motion that “existing combinations and influences, exerted in favor of the defendant [would]
prevent a trial alike fair and impartial to the state and the defendant” is discretionary and “cannot
be revised by this court unless it is established beyond any question that the discretion of the court
has been abused.”).
13
only valid if Judge Gallagher acted outside his authority. Otherwise, the district judges of
Harris County will have effectively negated another district judge’s constitutional
authority. Thus, the legal issues before this Court are best summarized in three parts:
Since the Texas Constitution gives state district court judges statewide
authority and because there appears to be a clear distinction drawn between
visiting judges and active/elected judges in Chapter 74:
(1) Does Chapter 74 require an active (currently elected) district judge to
obtain the permission of the presiding judge of his/her administrative
judicial region to “visit” in a region other than their own?
(2) If so, does that judge need to obtain an “order of assignment” from
the presiding judge of his own administrative judicial region?
(3) And when there are conflicting assignment orders between the
assigned judge’s home region and the assigned region, which one
prevails?
III. Standard of Review
When a court of appeals denies mandamus relief against a trial court, we review
whether relator was entitled to relief against the trial court de novo. 35 “A writ of mandamus
34F
is an extraordinary remedy that compels a respondent to perform some ministerial act.” 35F
36
To be entitled to mandamus relief, the relator must show there is no adequate
remedy in law and that the sought-after act is ministerial in nature. 37 The ministerial in
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nature prong “is satisfied if the relator can show he has a clear right to the relief sought—
35
In re State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013) (orig.
proceeding).
36
Smith v. Flack, 728 S.W.2d 784, 792 (Tex. Crim. App. 1987); see TEX. CONST. art. V, §
5(c).
37
In re State ex rel. Weeks, 391 S.W.3d at 122.
14
that is to say, when the facts and circumstances dictate but one rational decision under
unequivocal, well-settled (i.e., from extant statutory, constitutional, or case law sources),
and clearly controlling legal principles.” 38 A clear right to the relief sought exists “[w]hen
37F
a trial court acts beyond the scope of its lawful authority.” 39 Additionally, “an issue of first
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impression can qualify for mandamus relief when the principle of law is so plainly
prescribed as to be free from doubt.” 40 “[I]f the terms of a statute are clear, the Court can
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address its application.” 4140F
The remedy for an improper venue change on any basis other than lack of authority
or jurisdiction is direct appeal after a trial. Changes of venue protect a criminal defendant’s
right to a fair trial. Thus, absent a void order, appellate courts will only intervene if the
defendant did not receive a fair trial in the new venue. Since the Code of Criminal
Procedure leaves it up to the trial judge to be satisfied that a fair trial cannot be had in the
originating county, we have concluded “it would be difficult to envisage a state of facts by
which this court would be warranted in finding that an abuse of discretion occurred.” 42 41F
38
In re State ex rel. Young v. Sixth Jud. Dist. Ct. App., 236 S.W.3d 207, 210 (Tex. Crim.
App. 2007) (orig. proceeding); In re Meza, 611 S.W.3d 383, 388 (Tex. Crim. App. 2020) (orig.
proceeding).
39
In re City of Lubbock, No. WR-93,137-01, 2023 WL 1807149, at *5 (Tex. Crim. App.
Feb. 8, 2023) (orig. proceeding) (citing In re State ex rel. Ogg, 618 S.W.3d 361, 365 (Tex. Crim.
App. 2021) (orig. proceeding)).
40
In re State ex rel. Wice, 581 S.W.3d 189, 194 (Tex. Crim. App. 2018) (orig. proceeding);
In re State ex rel. Weeks, 391 S.W.3d at 122.
41
In re State ex rel. Wice, 581 S.W.3d at 194.
42
Cook v. State, 667 S.W.2d 520, 523 (Tex. Crim. App. 1984) (quoting Spriggs v. State,
289 S.W.2d 272, 273 (Tex. Crim. App. 1956)); Gregory v. State, 37 S.W. 752, 752 (Tex. Crim.
15
IV. The State’s Raised Procedural Grounds
Before reaching the merits, the State argues that it wins because of two procedural
reasons. First, the State contends that the Real-Party-in-Interest failed to timely object to
Judge Gallagher’s authority to preside over the case. Second, the State argues that the “law
of the case” doctrine compels a favorable result. We disagree with the State on both
arguments.
A. Objection Timeliness
First, the State contends that the Real-Party-in-Interest failed to timely object that
Judge Gallagher lacked authority to rule on the change of venue motion. 43 As a result, the
42F
Real-Party-in-Interest forfeited its right to object on this issue.
App. 1896) (finding that changes of venue based on the State’s motion that “existing combinations
and influences, exerted in favor of the defendant [would] prevent a trial alike fair and impartial to
the state and the defendant” is discretionary and “cannot be revised by this court unless it is
established beyond any question that the discretion of the court has been abused.”).
43
In Texas, courts have jurisdiction—the power over the subject matter and person, while
judges have authority—the power to preside over a case. See Davis v. State, 956 S.W.2d 555, 557–
60 (Tex. Crim. App. 1997) (“While our case law has called the authority of the judge to preside a
jurisdictional issue, we now disavow that characterization, because as we have explained,
jurisdiction or judicial power is vested in courts, not individuals.”); see also Lackey v. State, 364
S.W.3d 837, 844–48 (Tex. Crim. App. 2012) (explaining that Appellant properly preserved his
objection to the lack of authority of an appointed municipal court judge).
The rulings of a judge who lacks authority may be declared void or voidable depending
on the underlying reason for their lack of authority. If a judge lacks the constitutional and statutory
qualifications to be a judge, or if the judge is constitutionally or statutorily disqualified from
hearing a case, then the underlying proceedings are deemed void. Davis, 956 S.W.2d at 559. It is
as if the proceedings never occurred—the actions of the judge are a nullity. However, if the reason
for the lack of judicial authority is a violation of statutory procedure, then the underlying
proceedings are deemed voidable. Id. An objection is required for an appellate court to review a
voidable proceeding. Id. (citing Miller v. State, 866 S.W.2d 243, 245–46 (Tex. Crim. App. 1993)).
Thus, the timeline of an objection is relevant for a voidable proceeding.
16
The State argues that the Real-Party-in-Interest forfeited his right to object that
Judge Gallagher lacked authority because the Real-Party-in-Interest had notice of
Assignment Order III prior to Judge Gallagher granting a change of venue. The State points
to an April 25, 2017 letter from Presiding Judge Murphy to the Real-Party-in-Interest’s
counsel, which stated in part:
Documents were delivered to you November 5, 2015 in response to
your prior requests for information regarding Judge Gallagher’s assignment
to our region. Attached are additional copies of the documents we have that
are responsive to your current request. 44 43F
However, the December 21, 2015 Assignment Order III had not yet been made when the
documents were delivered to the Real-Party-in-Interest on November 5, 2015.
There is nothing in the record that proves that the Real-Party-in-Interest had notice
of the December 21, 2015 Assignment Order III before April 25, 2017. Subsequently, on
May 10, 2017, the Real-Party-in-Interest filed the underlying “Paxton’s Objection to
Rulings Made by Judge Sitting by Expired Assignment and Motion to Return Case to
Presiding Judge of the 416th District Court.” 45 Though the record is incomplete on this
44F
point, we will assume that the objection to Judge Gallagher’s authority was timely.
The challenged Assignment Order III (containing the latest expiration date) in the instant
case could make the underlying proceedings voidable because it does not deal with Judge
Gallagher’s constitutional or statutory qualifications to be a judge. Rather, the case deals with a
potentially voidable venue transfer order because Judge Gallagher may have lacked a proper
procedural mechanism (an unexpired order assigning him to the region) to sit in Collin County
when he granted the venue transfer motion.
44
App. to State’s Petition for Writ of Mandamus, at Tab 29.
45
Paxton App., at *138–43; see App. to State’s Petition for Writ of Mandamus, at Tab 30.
17
B. “Law of the Case” Doctrine
Second, the State also contends the “law of the case” doctrine requires treating the
April 11, 2017 change of venue to Harris County as a valid order, because the Fifth Court
of Appeals voided Judge Gallagher’s rulings after he signed the venue transfer order. The
Fifth Court of Appeals voided those orders pursuant to the Texas Code of Criminal
Procedure because the Real-Party-in-Interest objected to Judge Gallagher continuing to
preside over his case once it was transferred to Harris County. 46 45F
However, the Fifth Court of Appeals opinion did not answer the question as to
whether Judge Gallagher’s rulings were void because Assignment Order III expired. We
decline to apply the “law of the case” doctrine when the appellate court did not address the
underlying question regarding this petition for writ of mandamus—whether Judge
Gallagher had authority to grant the change of venue to Harris County on April 11, 2017.
V. The Law Granting Authority to Judges
Texas judges primarily derive their authority to preside as judges from two main
sources: the Texas Constitution and a collective scheme of statutes known as the Court
Administration Act. 47 Now codified as Chapters 74 and 75 of the Texas Government Code,
46F
the Court Administration Act created additional categories of judges and statutory avenues
to keep the judicial system functioning efficiently by means of judicial assignment to cases
46
See TEX. CODE CRIM. PROC arts. 31.05, 31.09.
47
TEX. CONST. art. V; TEX. GOV’T CODE, chapters 74, 75.
18
and courts. Texas created judicial regions in 1927 for this purpose. 48 Each county falls
47F
under one of the eleven administrative judicial regions in Texas, with each region being
headed by a regional presiding judge. 49 The presiding judge of the region facilitates docket
48F
management within his region. 50 A regional presiding judge may assign an active district
49F
judge to preside over a specific case in his region or to sit in a court and hear all matters. 51
50F
Thus, when a district judge is disqualified or recused, the regional presiding judge of that
region has the authority to assign the case to themselves or another judge. 52 51F
The Texas Constitution and the Court Administration Act, however, apply differently
to the different categories of judges. Thus, to examine how elected judges, such as Judge
Gallagher, are lawfully empowered with authority, we first provide some needed context.
A. Types of Judges in Texas
The Court Administration Act provides four categories of judges—active, retired,
former, and senior.
• “Active Judge” means a current judicial officeholder.
• “Former Judge” means a person who served as an active judge in a
district . . . but who is not a retired judge.
48
See Ex parte Holmes, 754 S.W.2d 676, 679 (Tex. Crim. App. 1988); Eucaline Medicine
Co. v. Standard Inv. Co., 25 S.W.2d 259 (Tex. Civ. App.—Dallas 1930, writ ref’d).
49
TEX. GOV’T CODE § 74.042; see TEX. GOV’T CODE §§ 74.046, 74.047.
50
See TEX. GOV’T CODE §§ 74.046, 74.047.
51
See TEX. CONST. art. V, § 11; TEX. GOV’T CODE §§ 74.052(a), 74.056(a)–(b).
52
TEX. GOV’T CODE § 74.056(a); TEX. GOV’T CODE § 74.047; TEX. R. CIV. P. 18a, 18b;
see De Leon v. Aguilar, 127 S.W.3d 1, 5 (Tex. Crim. App. 2004) (affirming Arnold v. State, 853
S.W.2d 543, 544 (Tex. Crim. App. 1993) in holding that TEX. R. CIV. P. 18a and 18b apply in
criminal cases).
19
• “Retired Judge” means a retiree; or a person who served as an active judge
for at least 96 months . . . and has retired under the Texas County and
District Retirement System.
• “Senior Judge” means a retired judge who has elected to be a judicial officer
under Section 75.001. 53
52F
B. Non-Active District Judges
As creations of statute, the authority to sit as a retired, former, or senior judge (also
referred to as “visiting” judges) emanates from Chapters 74 and 75, not from the Texas
Constitution. In contrast, elected (or “active”) district court judges derive their statewide
authority from both the Texas Constitution and/or Chapter 74, but not from Chapter 75.
The categories and rules for “non-active visiting judges” of this the State fall under these
two chapters and not the Constitution, because they no longer hold elected office.
C. Active District Judges
Elected district court judges first derive their authority from the Texas Constitution.
Under Article V, Section 12, elected district judges are granted state-wide authority: “All
judges of courts of this State, by virtue of their office, are conservators of the peace
throughout the State.” 54 Second and supplemental to their constitutional authority, they
53F
53
TEX. GOV’T CODE § 74.041.
54
TEX. CONST. art V, § 12(a). This express language extends back to the days of the
Republic of Texas nearly unchanged. REPUB. TEX. CONST. art. IV, § 4, reprinted in 1 H.P.N.
GAMMEL, THE LAWS OF TEXAS 1822–1897, at 1074 (Austin, Gammel Book Co. 1898) (“The
judges, by virtue of their offices, shall be conservators of the peace, throughout the republic.”).
This authority applies to the charging of an offense, by indictment or by information. Texas Code
of Criminal Procedure Article 1.23 further echoes that all “judges of the District Courts, shall, by
virtue of their offices, be conservators of the peace throughout the State.” In addition to
prosecutions, the Code of Criminal Procedure provision applies to writs and process. There are
additional sources of an elected district judge’s authority to act outside his home court. For
example, district judges may sign warrants statewide.
20
may also be assigned to preside in any of eleven Administrative Judicial Regions in the
State including their own region, by the presiding judge of one of those regions as found
in Chapter 74 of the Texas Government Code. 55 54F
D. The Authority For an Active District Judge to Preside in a Foreign Region
1. Authority under the Constitution
As “conservators of the peace throughout the State,” Article V, Section 11 of the
Texas Constitution empowers elected (active) district judges to preside in any district of
the State when requested by one with the proper authority. Section 11 is specifically titled
“DISQUALIFICATION OF JUDGES; EXCHANGE OF DISTRICTS; HOLDING
COURT FOR OTHER JUDGES.” 56 The provision in question fully states:
55F
And the District Judges may exchange districts, or hold courts for
each other when they may deem it expedient, and shall do so when required
by law. 5756F
While it is certainly possible to interpret the “exchange [of] districts” phrase as an
even swap, the phrase in the constitution “or to hold courts for each other” does not require
it. The title of the section emphasizes them as separate alternatives to each other. Moreover,
55
Chapter 75 also applies to assignments of “visiting judges.” But that Chapter only applies
to “former” and “retired” judges as defined in Chapter 74.041—not elected-active judges.
56
See A. SCALIA & B. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 221
(2012) (explaining that under the “Title-and-Headings Canon,” the title or section of a statute or
constitutional provision can aid in resolving intent of its framers); see also id. at 167 (“Context is
a primary determinant of meaning.”).
57
TEX. CONST. art. V, § 11 (emphasis added).
21
the entire sentence has been construed liberally in long-standing precedent so as not to
require a bench-for-a-bench exchange. 58 This expansive provision traces its roots to the
57F
Republic of Texas which also espoused a flexible district judge with state-wide authority:
[A]ny of the judges of the district courts are hereby authorized to hold
the courts in any other district than their own, by arrangement with each
other; and all judgements or proceedings before such judge shall be as good
in law and equity, as if the court was held by the judge of the district.” 59 58F
58
For instance, in Isaac v. State, 257 S.W.2d 436 (Tex. Crim. App. 1953), we affirmed a
judge’s authority to sit on a foreign bench in which District Judge Frank McDonald of Hill County
presided in place of District Judge Max Rogers in a Walker County district court. Nowhere did we
require that Judge Rogers had to be presiding in Judge McDonald’s district contemporaneously.
The Court of Criminal Appeals took an identical stance even prior to the Court
Administration Act:
Under the Constitution of this State (article 5, §11), district judges are
authorized to exchange. . . . Whether at the time, Judge Carrigan was holding court
of Judge Dickson or for some one else is not made apparent. We think it may often
happen that a district judge, who has the care of a family and sometimes cares of
business, is authorized, when in his judgement fairly exercised it is necessary for
his own health or to care for the health of his family, . . . to temporarily absent
himself from his post of duty and by exchange, or by calling on the incumbent of an
adjoining or adjacent district, provide the means for the continued holding of the
court, and that no litigant in such case has a right to retire such exchanging judge
from the bench.
Johnson v. State, 134 S.W. 225, 226 (Tex. Crim. App. 1910) (emphasis added).
Consistent with this Court’s ruling in the early 1900s, the Texas Supreme Court applied a
liberal construction of the provision during that same time frame. See Munzesheimer v. Fairbanks,
18 S.W. 697, 697 (Tex. 1891) (holding that a requested judge from a different district had authority
under Article V, Section 11 to oversee a special term and sit in place of the judge of that district
without a bench-for-bench exchange); see also Connellee v. Blanton, 163 S.W. 404, 405–06 (Tex.
Civ. App.—Fort Worth 1913, writ ref’d) (finding authority Article V, Section 11 for a district
judge from a foreign district to “hold court” for a native district judge’s court without an exchange
of benches).
59
Act approved Feb. 1, 1842, 6th Cong., R.S., § 1, 1842 Repub. Tex. Laws 85, reprinted
in 2 H.P.N. GAMMEL, THE LAWS OF TEXAS 1822–1897, at 757 (Austin, Gammel Book Co. 1898);
see also Ex parte Holmes, 754 S.W.2d 676, 679–81 (Tex. Crim. App. 1988) (detailing the history
of judicial assignments in Texas). The initially statutory ability of elected district judges to swap
22
Under the Texas Constitution, elected district judges have the ability to serve state-wide
when properly requested.
2. Authority under Texas Government Code Chapter 74
On top of the broad Constitutional grant of authority to elected district judges, the
Court Administration Act also provides a framework for the assignment of judges to cases
or courts. Judges (including active district judges) “may be assigned in the manner
provided by this chapter to hold court when necessary to dispose of accumulated business
in the region.” 60 And a judge assigned under the Court Administration Act “has all the
59F
powers of the judge of the court to which he is assigned.” 6160F
The Court Administration Act also provides several ways for a judge to be assigned.
Chapter 74 allows the regional presiding judge of the administrative judicial region to
assign a judge (including active district judges) to a district court or a specific case in his
region. 62 This explicit power exists in addition to the broad authority of a regional presiding
61F
judge to effectuate and “improve the management of the court system and the
benches and “hold courts for each other” was incorporated into the Constitution of 1845 upon
joining the Union, and has survived nearly unchanged to the present day. TEX. CONST. OF 1845
art. IV, § 14; TEX. CONST. OF 1861 art. IV, § 14; TEX. CONST. OF 1866 art. IV, § 12; TEX. CONST.
OF 1869 art. V, § 11; TEX. CONST. art. V, § 11.
60
TEX. GOV’T CODE § 74.052.
61
TEX. GOV’T CODE § 74.059(a).
62
See TEX. GOV’T CODE § 74.056.
23
administration of justice.” 63 A judge may also be assigned to a specific case or court in any
62F
region by the Chief Justice of the Supreme Court of Texas. 64 63F
3. Chapter 74 and District Judges
The Court Administration Act, however, does not apply to active district judges the
same way it applies to non-active judges. Because active district judges have been elected
in accordance with the Constitution, many of the rules in Chapters 74 that specifically apply
to non-active or visiting judges are not applicable. For example, there is no requirement for
an active district judge to have been on the bench for 96 months in order to be assigned to
another court or region in the State. 65 Regional presiding judges are required to keep a list
64F
of those eligible to serve as visiting judges; elected district court judges are not on those
lists. 66 And even if non-active visiting judges meet all of the qualifications to be on that
65F
list, regional presiding judges are granted the discretion to assign, or not to assign, those
on that list under Chapter 74. 67 66F
Although regional presiding judges may elect not to assign active judges within their
own region, nothing in the Texas Constitution or Chapters 74 and 75 allows them to prevent
active judges from presiding in other districts or regions when requested by one with proper
63
TEX. GOV’T CODE § 74.047.
64
See TEX. GOV’T CODE §§ 74.057, 74.049.
65
See TEX. GOV’T CODE § 74.055(c)(1).
66
See TEX. GOV’T CODE § 74.055(a).
67
See TEX. GOV’T CODE § 74.054(a).
24
authority such as another district court judge or another regional presiding judge. 68 If the
67F
State Commission on Judicial Conduct has taken certain types of action against non-active
judges, they are not eligible to sit in a visiting capacity; whereas sitting elected judges may
continue to act in their elected judicial positions, accept assignments, or exchange benches,
or hold courts for each other. 69 Parties may object to visiting judges in many cases, but not
68F
so for elected judges. 70 Elected judges cannot be required to sit by “assignment” outside
69F
of their elected court for more than ten calendar days per year without their consent. 71 70F
Thus, while a non-active or visiting judge’s authority beings and ends with the Court
Administration Act, an active district judge’s authority continues under the Constitution
even where their Chapter 74 authority ends.
4. Requirements from the Home Region’s Presiding Judge
Having established the multiple ways an active district judge is empowered to
preside in a foreign district or region, the next question is whether an assignment order by
his home region’s presiding judge is needed. In short, neither the Constitution nor the Court
Administration Act requires it. 72 71F
68
TEX. CONST. art. V, § 11.
69
See TEX. GOV’T CODE § 74.055(f).
70
TEX. GOV’T CODE § 74.053(e).
71
TEX. GOV’T CODE § 74.060(a).
72
See TEX. CONST. art. V, § 11; TEX. GOV’T CODE § 74.056.
25
It is axiomatic in our system of government that the Constitution always remains
supreme. 73 Thus, the broad power granted by the Constitution to district judges may not
72F
be taken away by statute. The Legislature may fill the silent gaps of a constitutional power;
but they may not limit that power unless it is clearly contemplated by the Constitution. 74 73F
Only a constitutional force may negate a constitutional force.
Since the Constitution was adopted in 1876, this Court has repeatedly relied on
Article V, Section 11 as the source of power for district judges to preside in another court
anywhere in the State. Half a century ago, Presiding Judge Onion of this Court said:
The expression “whenever they deem it expedient,” as utilized in both
constitutional and statutory provisions confers on district judges broad
discretionary powers to exchange benches, or hold court for each other,
which is reviewable only if an abuse of discretion has occurred. Although the
better practice would require one, the exchange may be accomplished
without the necessity of a formal order or entry on the record of the reasons
for such exchange. 75 74F
73
See In re State ex rel. Wice, 629 S.W.3d at 731 (Goodman, J., concurring & dissenting).
74
Statutes with the same purpose or object must be read together harmoniously and read
under a constitutional interpretation when possible. Diruzzo v. State, 581 S.W.3d 788, 799 (Tex.
Crim. App. 2019) (citing A. SCALIA & B. GARNER, READING LAW: THE INTERPRETATION OF LEGAL
TEXTS 80 (2012); State v. Vasilas, 253 S.W.3d 268, 272–73 (Tex. Crim. App. 2008). “In enacting
a statute, it is presumed that: (1) compliance with the constitutions of this state and the United
States is intended; (2) the entire statute is intended to be effective; . . . (4) a result feasible of
execution is intended . . . .” TEX. GOV’T CODE § 311.021.
75
Floyd v. State, 488 S.W.2d 830, 832 (Tex. Crim. App. 1972).
26
Thus, this Court has repeatedly held that no formal order is needed for an elected
district judge to preside over a different district court. 76 Our civil brethren, also beholden
75F
to the same Constitution, have arrived at the same conclusion. 77 76F
Furthermore, nothing in Section 74.056 dictates a formal order is required when
assigning an elected judge to another region. 78 The language of the Court Administration
77F
76
See Davila v. State, 651 S.W.2d 797, 799 (Tex. Crim. App. 1983) (“It is not necessary
that a formal order be entered for the judge of one district court to preside over a case in place of
a duly elected judge, nor is it necessary for the docket sheet or minutes to show the reason for the
exchange of benches by district judges.”); Floyd, 488 S.W.2d at 831–32; Pendleton v. State, 434
S.W.2d 694, 697 (Tex. Crim. App. 1968) (“No formal order need be entered for the judge of one
district court to preside over a case in the place of a duly elected judge.”); Isaac v. State, 257
S.W.2d 436, 437–38 (Tex. Crim. App. 1953) (“Judge McDonald being at the time the regularly
elected judge of the 66th Judicial District of this State, and not a ‘special judge,’ was authorized
to preside for Judge Rogers without the necessity of the entry of a formal order.”); Richardson v.
State, 228 S.W.2d 179, 180–81 (Tex. Crim. App. 1950) (“Moreover, Judge Morrison, being a
District Judge, derived his authority to preside in such court under the provisions of Art. V, Sec.
11, of the Constitution of Texas . . . .”).
77
In re Commitment of Burd, 612 S.W.3d 450, 459 (Tex. App.—Houston [1st Dist.] 2020,
pet. denied) (“No formal order is needed for an exchange or transfer to take place.” (citing Pinnacle
Gas Treating, Inc. v. Read, 160 S.W.3d 564, 566 (Tex. 2005) (per curiam))); European
Crossroads’ Shopping Ctr., Ltd. v. Criswell, 910 S.W.2d 45, 51 (Tex. App.—Dallas 1995, writ
denied) (“The trial court may exchange or transfer a case on its own initiative. Exchange or transfer
does not require a formal order. The minutes of the court do not need to show the reason for the
exchange.”); Ex parte Lowery, 518 S.W.2d 897, 901 (Tex. Civ. App.—Beaumont 1975, no writ)
(“Further, we concede that such an exchange may be effected upon the judges' own initiative and
that the making and entry of a formal order is not required nor does the reason for the exchange
need be shown in the minutes.”); Baldwin v. Leonard, 110 S.W.2d 1160, 1161 (Tex. Civ. App.—
Eastland 1937, writ dism’d) (“[A]n exchange of districts may be effected upon the judges' own
initiative, or as the result of a request of one of the judges. The making and entry of a formal order
declaring the exchange of districts by the judges is not required; nor is it essential that the docket
or minutes show a reason for the exchange.” (citing 25 TEX. JUR. p. 346, § 96)); Marx v. Weir, 130
S.W. 621, 621–22 (Tex. Civ. App.—Beaumont 1910, writ ref’d) (affirming and stating: “The
provisions of the Constitution [Section 11, art. V] need no construction and furnish a complete
answer to appellant’s contention” where the record was silent as to the reasons and “there was no
exchange of districts between said [elected] judges”).
78
TEX. GOV’T CODE 74.056; see Assignment Order I; Assignment Order III (citing to TEX.
GOV’T CODE 74.056).
27
Act suggests that an assignment order to another region from the home region is preferable,
but never explicitly mandates it:
(a) A presiding judge from time to time shall assign the judges of the
administrative region to hold special or regular terms of court in any
county of the administrative region to try cases and dispose of
accumulated business.
(b) The presiding judge of one administrative region may request the
presiding judge of another administrative region to furnish judges to aid
in the disposition of litigation pending in a county in the administrative
region of the presiding judge who makes the request. 79
78F
“May” is permissive in nature—not mandatory. Thus, a formal order or request is
not required. Nevertheless, even if the statute required a formal order, the supreme nature
of the Constitution would invalidate it as applied to active district judges.
Furthering the observations above, the Constitution explains that another district
judge may hold court for another judge “when deemed expedient.” 80 The statute may not
79F
block said expediency in the name of administrative efficiency. It is perhaps desirable for
administrative purposes, but it is not constitutionally nor statutorily required that regional
presiding judges issue orders to active district judges assigning them to other regions or
courts. 81
80F
79
TEX. GOV’T CODE § 74.056 (emphasis added).
80
TEX. CONST. art. V, § 11.
81
See Floyd v. State, 488 S.W.2d 830, 832 (Tex. Crim. App. 1972) (“Although better
practice would require one, the exchange may be accomplished without the necessity of a formal
order or entry on the record of the reasons for such exchange.”).
28
Significant portions of Chapters 74 and 75 cover administrative matters related to
all judges assigned in jurisdictions other than their own. Those matters include
compensation for the actual judicial work, reimbursement for travel expenses, hotels, per
diem, etc. All of these matters require a “paper-trail” for the promotion of the orderly and
efficient administration of justice. While this paper-trail may be necessary to compensate
and reimburse judges for the work they do, it has nothing to do with granting authority to
assigned judges to preside over cases, except where a judge’s authority is derived solely
from statute. The Court Administration Act, like all statutes, can only add—and never
detract—to the grants of authority under the Constitution. 82 Thus, if an elected district
81F
judge does not need his home region’s presiding judge’s permission under the Constitution,
he certainly does not need it under Chapter 74. 83 82F
82
In Richardson v. State, 228 S.W.2d 179 (Tex. Crim. App. 1950), we affirmed a judge’s
authority to sit by assignment in a foreign administrative judicial district. There an active district
judge from the First Administrative Judicial District was assigned to a court by the regional
presiding judge for the Third Administrative Judicial District. This Court held that District Judge
Morrison of the Third Administrative Judicial District was statutorily authorized to preside over
the case by assignment. “Moreover, Judge Morrison, being a District Judge, derived his authority
to preside in such court under the provisions of Art. V., Sec. 11, of the Constitution of Texas . . . .”
Richardson, 228 S.W.2d at 180–81.
Our civil jurisprudence has reached the same conclusion regarding the double layers of
authority with equal state-wide binding stature. Eucaline Medicine Co. v. Standard Inv. Co., 25
S.W.2d 259, 262–63 (Tex. Civ. App.—Dallas 1930, writ ref’d) (finding with Texas Supreme Court
precedential authority that an elected district judge—statutorily assigned to another district court
by the regional presiding judge of that judicial region—also had constitutional power under Article
V, Section 11 to hold court for another judge).
83
Id.29
E. Rule for Active District Judges
Harmonizing our constitutional text, statutory language, and our case law once
more, 84 we reaffirm the following on when an elected district judge may sit in another
83F
Texas district court. 85 84F
We find once again that, in addition to the district in which they innately preside,
duly elected district judges (active district judges) have constitutional authority to sit on
84
While it is this Court’s prerogative to alter our case law in all criminal matters, changing
course after nearly a century would create a conflicting constitutional interpretation with our co-
equal Texas Supreme Court on the civil side. Richardson v. State, 228 S.W.2d 179 (Tex. Crim.
App. 1950); Eucaline Medicine Co. v. Standard Inv. Co., 25 S.W.2d 259 (Tex. Civ. App.—Dallas
1930, writ ref’d).
85
The Court of Appeals’s majority opinion cited to four cases in its section expounding
upon the authority granted by an assignment order. In re State ex rel. Wice, 629 S.W.3d 715, 725
(Tex. App—Houston [1st Dist.] 2021, orig. proceeding). Unlike this case, those cases do not deal
with an active district judge possessing constitutional authority in addition to authority under
Chapter 74. In re Public Parking System, Inc., 60 S.W.3d 877 (Tex. App—Houston [14th Dist.]
2000, orig. proceeding) (concerning former court of appeals justice serving as visiting judge);
Mangone v. State, 156 S.W.3d 137 (Tex. App—Fort Worth, 2005, pet. denied) (dealing with a
visiting judge); In re Richardson, 252 S.W.3d 822 (Tex. App—Texarkana 2008, orig. proceeding)
(regarding senior judge serving as visiting judge); Hull v. South Coast Catamarans, L.P., 365
S.W.3d 35 (Tex. App—Houston [1st Dist.] 2011, no pet.) (dealing with a visiting judge).
Additionally, the Court of Appeals’ majority relies on Roberts v. Ernst, 668 S.W.2d 843(Tex. App—Houston [1st Dist.] 1984, no pet.) to conclude no exchange of benches occurred.
Justice Goodman explains that “Roberts stands for the commonsense principle that an exchange
of benches cannot exist, or be implied from an expired assignment, when the facts definitively
show that one judge is interfering with the rightful authority of another. This principle has no
applicability here, given that Gallagher was the lone judge presiding over these cases when he
transferred them to Harris County.” In re State ex rel. Wice, 629 S.W.3d at 730 (Goodman, J.,
concurring & dissenting). We also note, that Roberts does not deal with any orders assigning a
judge to another region, but rather a couple of competing assignment orders by the regional
presiding judge to the same district court in his region.
30
any bench in any region in the State outside their home region provided they have been
requested by the presiding authority for that bench in that region. 86 85F
Regional presiding judges have the authority to assign a judge to any bench in his
region under Chapter 74. 87 They do not and cannot detract from an active district judge’s
86F
constitutional authority that may be exercised at that judge’s discretion. 88 Thus, once
87F
properly requested by one with authority and until the invitation by the requesting authority
is revoked, no other judge can constitutionally prohibit, remove, or deauthorize a qualified
active district judge from sitting outside their district—even where that bench is in a foreign
region of the State. 89 The only circumstances that would allow for any such limitations
88F
include the aforementioned revocation of the request, recusal, disqualification, the active
district judge’s objection and request for relief from such an assignment, or that the parties
do not consent to the judge following a change of venue. 90 89F
86
See TEX. CONST. art. V, § 11 (“And the District Judges may exchange districts, or hold
courts for each other when they may deem it expedient, and shall do so when required by law.”).
87
TEX. GOV’T CODE § 74.056(a).
88
See TEX. GOV’T CODE § 311.021; see TEX. CONST. art. V, § 11; cf. Marbury v. Madison,
5 U.S. 137, 177 (1803) (“Certainly all those who have framed written constitutions contemplate
them as forming the fundamental and paramount law of the nation, and consequently the theory of
every such government must be, that an act of the legislature, repugnant to the constitution, is
void.”).
89
See TEX. CONST. art. V, §§ 7(d)–(e), 11.
90
See TEX. CONST. art. V, § 11 (“No judge shall sit in any case wherein the judge may be
interested, or where either of the parties may be connected with the judge, either by affinity or
consanguinity, within such a degree as may be prescribed by law, or when the judge shall have
been counsel in the case . . . .When a judge of the District Court is disqualified by any of the causes
above stated, the parties may, by consent, appoint a proper person to try said case; or upon their
failing to do so, a competent person may be appointed to try the same in the county where it is
31
VI. Discussion
As applied here, Judge Oldner was an active district judge of the 416th District
Court in the First Administrative Region. Duly assigned to the instant case, Judge Oldner
recused himself from hearing the Real-Party-in-Interest’s case and referred the case to his
home region’s presiding judge of the administrative region including Collin County—
Presiding Judge Murphy. At this point, it was unmistakable and undisputed that Presiding
Judge Murphy had authority to make an assignment over the case. 91 Presiding Judge
90F
Murphy assigned Judge Gallagher (the elected judge for the 396th District Court in Tarrant
County) to the 416th District Court to specifically hear the Real-Party-in-Interest’s case.
Presiding Judge Murphy made this assignment to be effective without a time limit
consistent to and within her discretionary authority as a regional presiding judge.
The assignment from the presiding judge of the region covering Collin County was
sufficient to grant Judge Gallagher, an active judge, the requisite authority under the
Constitution to sit in the case. This assignment to hear the Real-Party-in-Interest’s case was
pending, in such manner as may be prescribed by law.”); see also TEX. GOV’T CODE § 74.060(a)
(“An active judge may not, without the judge's consent, be assigned out of the judge's district or
county for more than 10 calendar days in a year.”); TEX. CODE CRIM. PROC. art. 31.09(a) (requiring
consent of the parties before a judge can continue to preside over a case after ordering a change of
venue).
91
TEX. R. CIV. P. 18a, 18b; see TEX. GOV’T CODE § 74.058 (b) (empowering a regional
presiding judge to relieve a judge of an assignment on presentation of “good cause”); TEX. GOV’T
CODE § 74.047 (empowering a regional presiding judge to “perform the acts necessary to carry out
the provisions of this chapter [Ch. 74] and to improve the management of the court system and the
administration of justice”); TEX. GOV’T CODE § 74.056 (empowering a regional presiding judge to
assign judges “to try cases and dispose of accumulated business”).
32
never revoked by Presiding Judge Murphy. 92 Nor did Judge Gallagher seek relief of the
91F
assignment. 9392F
While the order transferring Judge Gallagher to another region expired (Assignment
Order III), no assignment order from Judge Gallagher’s administrative judicial region was
ever required because Judge Gallagher was an elected judge. 94 As an active district judge,
93F
Judge Gallagher had constitutional authority to sit in any district court across the state,
provided another district judge, regional presiding judge, or the Chief Justice requested
him. Here, Presiding Judge Murphy provided the keys to the 416th District Court to preside
over the Real-Party-in-Interest’s case.
Because Presiding Judge Murphy assigned Judge Gallagher to specifically hear the
Real-Party-in-Interest’s case, no further formal order transferring Judge Gallagher from the
Eighth Administrative Judicial Region to the First Administrative Judicial Region was
necessary to grant Judge Gallagher the authority to sit in the 416th District Court. Judge
92
Assignment Order II. There is nothing in the record to suggest that Presiding Judge
Murphy revoked Judge Gallagher’s assignment to hear the Real-Party-in-Interest’s case.
93
Id.; TEX. GOV’T CODE §§ 74.058, 74.060(a).
94
Continuing beyond the expiration date of the assignment order from Judge Gallagher’s
home region had only one effect: Judge Gallagher was no longer statutorily obligated to preside
over the instant case. Nevertheless, Judge Gallagher, as an active district judge, maintained his
constitutional power to continue presiding over the case so long as he was willing and the First
Administrative Judicial Region’s presiding judge remained willing.
Again, we note that the email exchange between the administrative assistants for the
regional presiding judges of the First and Eighth Administrative Judicial Regions demonstrate an
intent for Judge Gallagher to continue to be assigned to the First Administrative Judicial Region
past January 2017. They suggest that both regional presiding judges correctly understood that an
additional extension order was not needed for the First Administrative Judicial Region to continue
to retain Judge Gallagher on the case.
33
Gallagher was properly requested by one with authority in Collin County—Presiding Judge
Murphy. While the order signed by Judge Evans may have facilitated other administrative
matters related to Judge Gallagher’s assignment in Collin County, the assignment order
could not, by itself limit the underlying authority of the elected district judge from sitting
in another court. Indeed, there is nothing in the language of 74.056(b) that requires any
order of assignment from an elected judge’s home region’s presiding judge to another
region. Moreover, there is nothing in the record to suggest that Judge Gallagher was
constitutionally or statutorily disqualified from sitting as a judge on the 416th District
Court. And there is nothing to suggest that Presiding Judge Murphy revoked Judge
Gallagher’s invitation to a court within Presiding Judge Murphy’s administrative region.
Judge Gallagher had authority to sit in the 416th District Court to preside over the
Real-Party-in-Interest’s case when he issued the venue transfer order on April 11, 2017. 95 94F
To hold otherwise, would erroneously limit the constitutional statewide authority vested in
duly elected district court judges by the Texas Constitution. 96 Moreover, it would require
95F
this Court to interpret 74.056 in such a way that an elected district court judge would have
95
Real-Party-in-Interest’s arguments are predicated on the condition that Judge Gallagher
was a visiting judge. We note that Real-Party-in-Interest’s arguments (that Judge Gallagher’s
assignment by Presiding Judge Evans was temporally restricted) relied on case law dealing with
visiting judges—not active district judges. However, Judge Gallagher was not a “visiting judge”
as the law defines him. For the purposes of Chapter 74, he was an “active district judge,” and
constitutionally, a “conservator of the peace throughout the state.”
96
In his dissent, Judge Yeary asserts that the Court is mistaken for our incorrect focus and
that we have “no good reason[s]” for conditionally granting mandamus today. But it is never a
judicial sin to follow the Constitution and the rule of law. And mandamus must at least be
appropriate when a judge, over a party’s objection, ignores the Constitution.
34
to obtain the permission of his regional presiding judge to sit in another region when
requested to do so by one in authority. Simply put, the statute does not say that and even if
it did, it could not override that constitutional authority conferred upon elected district
judges.
Judge Gallagher’s order changing venue to Harris County is a valid order. 97 As we 96F
have said before, venue, unlike jurisdiction is waivable. 98 Here, the parties clearly waived
97F
97
We have been criticized that the venue change order was correctly voided because Judge
Johnson and Judge Luong may have thought Judge Gallagher was outside his authority by failing
to choose the appropriate venue under statute.
But first, what Judge Johnson and Judge Luong may have thought is not in the record. This
is pure speculation. And assertions “not supported by evidence in the record will not be
considered” on review. Franklin v. State, 693 S.W.2d 420, 431 (Tex. Crim. App. 1985). Making
arguments not made by the parties in a case such as this comes dangerously close to advocacy.
And this Court is constitutionally required to remain separate from such a role.
Second, even if we were to entertain the above argument, it would still not entitle any judge
to void Judge Gallagher’s change of venue order. By claiming his choice of venue was erroneous,
this argument implicitly concedes that the predicate decision to change venue was completely
valid.
98
Ex parte Watson, 601 S.W.2d 350, 351 (Tex. Crim. App. 1980). Judge Yeary states that
he is “concerned” that “the Court might unwittingly be establishing a rule permitting venue-by-
consent in all cases . . . .” J. Yeary’s Dissent at *15. Most rights—even those established in the
U.S. Constitution, such as the Fourth Amendment—are waivable by express consent. See Proenza
v. State, 541 S.W.3d 786, 792 (Tex. Crim. App. 2017) (discussing category-one, -two, and -three
Marin rights). As we explained in Proenza and Marin, that is how rights work. Courts should
generally not interfere with the free choice of the parties absent an objection or issue of
fundamental fairness. Only those rights recognized as fundamental or systemic to the fair
administration of justice (category-one Marin rights) can never be waived. And as we have clearly
established in Ex parte Watson, venue is not a category-one Marin right: “Unlike jurisdiction,
venue may be acquired by consent.” Ex parte Watson, 601 S.W.2d 350, 351 (Tex. Crim. App.
1980); see id. at 352 (“It is apparent from above that, strictly as a matter of jurisdiction, a district
court may try any case in which the offense takes place within the State. Of course in a given case
venue may not be proper under the provisions of Chapter 13 of the Code of Criminal Procedure.
The failure to comply with those provisions, however, does not deprive the district court of
jurisdiction. Ultimately, whether the provisions of Chapter 13 are enforced depends on whether
35
any objections under Article 31.02 and consented to a non-adjacent county. 99 Therefore,98F
Judge Gallagher had the discretion as a judge with constitutional and statutory authority to
change venue to Harris County even though it is a non-adjacent county. 100 And the 99F
Constitution requires more than mere disagreement to void the rulings of one of its judges
acting within their discretion.
Thus, the act of voiding Judge Gallagher’s valid order was clearly unlawful because
it violated Judge Gallagher’s judicial authority flowing from both the Texas Constitution
and our statutes. 101 Nevertheless, because one of the parties objected to Judge Gallagher
100F
the defendant asserts his rights under those provisions. We conclude that the trial court in this case
had jurisdiction of the cause even if venue were improper.”).
99
“Indeed, the law of invited error estops a party from making an appellate error of an
action it induced.” Druery v. State, 225 S.W.3d 491, 506 (Tex. Crim. App. 2007) (internal quotes
omitted).
100
Judge Yeary claims that the State still has a remedy and therefore, mandamus is
inappropriate. He claims the State could simply file another motion to change venue in Collin
County. However, his proposed remedy is no remedy at all. Under the wrong set of circumstances
and judicial rulings, it could lead to an infinite loop of venue changes before an appropriate venue
is identified. The core right protected by venue change procedures is the right to a fair trial for both
the State and defendant. See U.S. CONST. amend. VI; TEX. CODE CRIM. PROC. art. 2.03 (b) (“It is
the duty of the trial court, the attorney representing the accused, the attorney representing the state
and all peace officers to so conduct themselves as to insure a fair trial for both the state and the
defendant, . . . .”). The protections we have in place to ensure this core right would be undermined
under the proposed remedy.
101
As we stated above, when there is no adequate remedy at law, a clear right to mandamus
relief exists “[w]hen a trial court acts beyond the scope of its lawful authority.” In re City of
Lubbock, No. WR-93,137-01, 2023 WL 1807149, at *5 (Tex. Crim. App. Feb. 8, 2023) (orig.
proceeding) (citing In re State ex rel. Ogg, 618 S.W.3d 361, 365 (Tex. Crim. App. 2021) (orig.
proceeding)).
36
presiding over the case after the change of venue was granted, Judge Gallagher was
properly replaced following his order to change venue. 102 101F
Conclusion
We have previously held that mandamus relief can be warranted “when the issue
involves an unambiguous statute [and constitutional provisions], or when ‘the combined
weight of our precedents clearly establishes’ the proposition of law on which relief is
predicated.” 103 In this case, mandamus is clearly warranted because of what is bindingly
102F
dictated by all three—the second stretching centuries since its Republic of Texas inception,
and the other two just shy of one.
The standards we use to judge will inevitably be applied against us. Thus, even the
noblest of goals, no matter how righteous, cannot justify improper means. 103F
104
It leads away
from the enlightened order provided under the rule of law. Today we fulfill our duty by
upholding our Constitution’s rule of law and affirming the wisdom of its framers. Thus,
102
TEX. CODE CRIM. PROC. art. 31.09(a).
103
In re Meza, 611 S.W.3d 383, 389 (Tex. Crim. App. 2020) (first citing In re State ex rel.
Wice v. Fifth Jud. Dist. Ct. App., 581 S.W.3d 189, 194–95 (Tex. Crim. App. 2018) (orig.
proceeding), and then citing In re State ex rel. Weeks, 391 S.W.3d 117, 126 (Tex. Crim. App.
2013) (orig. proceeding)).
104
See Paine, Thomas, THE AMERICAN CRISIS (Dec. 23, 1776) (“THESE are the times that
try men's souls. The summer soldier and the sunshine patriot will, in this crisis, shrink from the
service of their country; but he that stands by it now, deserves the love and thanks of man and
woman. Tyranny, like hell, is not easily conquered; yet we have this consolation with us, that the
harder the conflict, the more glorious the triumph. What we obtain too cheap, we esteem too
lightly: it is dearness only that gives every thing its value. Heaven knows how to put a proper price
upon its goods; and it would be strange indeed if so celestial an article as FREEDOM should not
be highly rated.”).
37
Judge Gallagher had constitutional and statutory authority to preside when he ordered the
change of venue to Harris County. The district court in Harris County had no authority to
void it. We conditionally grant the State’s petition for writ of mandamus. The writ of
mandamus will issue only in the event that the courts below fail to comply with this
opinion.
Delivered: June 14, 2023
Publish
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