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Petition for Writ of Mandamus Denied and Opinion filed
October 24, 2003.
 
 
In The
 
Fourteenth Court of Appeals
____________
 
NO. 14-03-01177-CV
____________
 
IN RE APPROXIMATELY $17,239.00, Relator
 
 

 
ORIGINAL
PROCEEDING
WRIT
OF MANDAMUS
 

 
O P I N I O N
On October 21, 2003, relator
filed a petition for writ of mandamus in this Court.  See Tex.
Gov=t. Code Ann. ' 22.221 (Vernon Supp. 2003); see
also Tex. R. App. P. 52.  On October 22, 2003, relator
filed an emergency motion to stay the underlying proceedings.  We deny relief
On September 22, 2003, relator
filed an objection under Government Code section 74.053 to the judge assigned
to the 127th District Court, Judge P. K. Reiter.  On September 29, 2003, the parties appeared
for a hearing, over which Judge Reiter presided, concerning a motion to compel
and for discovery sanctions filed by the real party in interest.  After both sides had been heard concerning
the motion to compel, but before the judge ruled, relator
first mentioned the objection filed on September 22, 2003.  The judge was unaware of the objection, but
after some discussion, the judge denied it, finding it was not timely filed. 




Relator filed a petition for mandamus relief
claiming that Judge Reiter should not hear the case because relator=s objection was timely filed and
immediately effective.  Relator further asserts that, because the objection was
timely, any subsequent orders entered by Judge Reiter are void. 
The Legislature recently amended section 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
amended statute continues to 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 (Tex. Govt. Code Ann.
' 74.053(b).  But, significant changes were made to the
section defining when an objection is timely. 
Under the amended statute, an objection is timely if filed Anot 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. at ' 10 (amended
version of Tex. Govt. Code Ann ' 74.053(c)).  If a timely objection is filed, the assigned
judge shall not hear the case.  Id. at '
10 (section 74.053(b)).  When an
assigned judge overrules a timely objection to his assignment, all of 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).  
Case law has held that a timely filed objection is effective
upon filing, if filed before the trial judge takes the bench to preside over
any hearing, see, e.g., Lewis v. Leftwich, 775
S.W.2d 848, 850-51 (Tex. App.BDallas 1996, orig. proceeding), and relator relies on these cases for his claim that his objection
should have been found effective as it was filed before the first hearing.  However, we find the cases cited by relator distinguishable. 
In the cases cited, the judge became aware of the objection either
before the hearing commenced or was advised by the parties at the commencement
of the hearing.  See Lewis, 775
S.W.2d at 849(party filed objection before trial and advised judge of objection
as first matter at trial); In re Cuban, 24 S.W.2d 381, 383 (Tex. App.BDallas 2000, orig. proceeding)(objection filed before trial
and party stated his objection when judge took the bench for trial).  




In the case before us, relator
filed his objection seven days before the first hearing, but appeared at the
hearing and did not mention the objection to the judge at the commencement of
the hearing.  After the hearing had been
underway for some time, but before the judge ruled on the motion to compel, relator finally mentioned the objection.  The judge=s reaction reveals that he was
unaware of the objection. 
An objection to an assigned judge may be waived if a party
proceeds to trial without first presenting its objection to the judge.  Chandler v. Chandler, 991 S.W.2d 367,
383 (Tex. App.BEl Paso 1999, pet. denied);Tex.
Employment Comm=n v. Alvarez, 915 S.W.2d 161, 166 (Tex. App.BCorpus Christi 1996, orig. proceeding).  Although these cases are distinguishable in
that no objection was filed before commencement of trial or a hearing, we
believe the policy nevertheless applies here. 
In Logic Sciences, Inc. v. Smith, 798 S.W.2d 394 (Tex. App.BHouston [1st Dist.] 1990, orig. proceeding), the court said:
To allow untimely objections such as this would
encourage litigants to delay objections until they Aget a feeling@ for how
a judge is going to rule in a caseBa
situation the statute is designed to prevent.
 
Id. at 395.  This case presents a
strikingly similar situation.
After relator finally advised Judge
Reiter of the objection, Judge Reiter expressed his  concern that relator
had not brought the objection to the court=s attention until the end of the
hearing, and after relator thought the ruling on the
motion to compel might go against him. 
Relator=s objection was filed with the
district clerk in a timely fashion, and, if the judge had been aware of the
objection, he could not have presided over the hearing.  Once relator
appeared at the hearing and found that Judge Reiter was presiding, relator should have advised the judge of the objection
immediately after the case was called for hearing.  By failing to do so, and by allowing Judge
Reiter to hear argument on real party=s motion to compel, we find that relator waived his objection. 




Having found that relator waived
his objection to Judge Reiter, relator
is not entitled to mandamus relief.  Accordingly, we deny relator=s petition for writ of mandamus and
motion for emergency stay. 
 
PER CURIAM
 
 
Petition Denied
and Opinion filed October 24, 2003.
Panel consists of
Justices Yates, Hudson, and Fowler.

