Petition for Writ of Mandamus Denied; Supplemental Majority and
Concurring Memorandum Opinions on Rehearing filed February 3, 2015.




                                      In The

                    Fourteenth Court of Appeals

                                NO. 14-14-00875-CV



                     IN RE WILMA REYNOLDS, Relator


                          ORIGINAL PROCEEDING
                           WRIT OF MANDAMUS
                              300th District Court
                            Brazoria County, Texas
                          Trial Court Cause No. 48170

   SUPPLEMENTAL MAJORITY MEMORANDUM OPINION ON
                                 REHEARING

      We deny relator’s motion for rehearing and issue this supplemental opinion
on rehearing.

      On October 31, 2014, relator Wilma Reynolds filed a petition for writ of
mandamus in this court. See Tex. Gov’t Code Ann. § 22.221 (West 2004); see also
Tex. R. App. P. 52. In the petition, relator asks this court to compel the Honorable
Jeff Walker, visiting judge of the 300th District Court of Brazoria County, to set
aside his October 29, 2014 orders (1) denying relator’s objection to the assigned
judge; (2) denying relator’s motion to recuse Judge C.G. Dibrell; (3) denying
relator’s motion to recuse Judge Randy Clapp; and (4) imposing sanctions against
relator. We deny the petition.1

                                       I. BACKGROUND

       The underlying divorce proceeding has involved seven judges. Some have
recused themselves; others have been the subject of recusal motions and objections
filed by Wilma.2

       Judge Randall Hufstetler, the presiding judge of the 300th District Court,
was the original judge to hear the underlying case. However, the Associate Judge
of the 300th District Court James Robertson was the first judge to voluntarily
recuse himself without a motion being presented. This occurred when several
motions were set to be heard at a hearing on January 20, 2011. Judge Hufstetler
was out sick that day, and Judge Robertson reset the motions to be heard at a later
date, and recused himself from the underlying case.3

       1
          We previously denied Wilma’s petition for writ of mandamus for not providing a
sufficient record. See In re Reynolds, No. 14-14-00875-CV, 2014 WL 7171982 (Tex. App.—
Houston [14th Dist.] Dec. 16, 2014, orig. proceeding) (mem. op.). Wilma filed a motion for
rehearing with a supplemental petition to address the deficiency in the record.
       2
         In our prior opinion, we stated that this case had involved six judges. However, the
record did not reflect that the associate judge had heard the case.
       3
           Judge Robertson recused himself, explaining:
       [B]ecause I anticipate [that] if I do anything else on this case, it’s going to be
       novo’d up anyway. It’d be a waste of time for the Court. . . . So, I’m going to
       have [Judge Hufstetler] hear everything from here on out on it because I just don’t
       want to waste any more money.
                                                2
        On December 21, 2011, Wilma filed a “pro se” letter in the Fourteenth Court
of Appeals addressed to the chief justice and justices. In the two-page letter,
Wilma made allegations regarding Judge Hufstetler’s purported lack of
impartiality. On January 10, 2012, Judge Hufstetler recused himself from the
underlying case and requested that Regional Presiding Judge Olen Underwood
assign a visiting judge.4

        On January 25, 2012, Judge Underwood assigned Judge Daniel Sklar to the
underlying case. On November 18, 2013, Wilma filed “Petitioner’s Motion to
Recuse” moving to recuse Judge Sklar based on her contention that he lacked
impartiality. See Tex. R. Civ. P. 18a, 18b. Wilma also filed a copy of the motion
to recuse Judge Sklar in this court on November 18, 2013, with an original
proceeding. Attached to Wilma’s motion to recuse Judge Sklar was a pro se letter
dated October 18, 2013, addressed to the State Commission on Judicial Conduct;
the justices of the Texas Supreme Court; Judge Underwood; and the justices of this
court. Wilma’s letter challenged Judge Sklar’s impartiality and requested that the
State Commission on Judicial Conduct investigate her allegations against Judge
Sklar. On December 2, 2013, Judge Sklar recused himself from the underlying
case.

        On January 13, 2014, Judge Underwood assigned Judge C.G. “Trey” Dibrell
to the case.    On September 18, 2014, Wilma filed “Respondent’s Motion to
Recuse” which was a single motion seeking recusal of both Judge Dibrell and
Judge Underwood pursuant to Rules 18a and 18b.

        4
         Judge Hufstetler’s stated reason was the ex parte communication by Wilma and her
counsel to this court.
                                           3
      On September 29, 2014, Judge Underwood signed (1) an order assigning
Judge Randy Clapp to hear Wilma’s motion to recuse Judge Dibrell; and (2) denied
the motion to recuse himself.

      On September 30, 2014, Wilma filed her “Objections to Assignment of
Judge Randy M. Clapp to Hear Wilma Reynold’s Motion to Recuse.” In that same
document, Wilma also objected to “Judge Underwood’s involvement to [sic] any
assignment in relation to her Motion to Recuse” and requested that he refer the
case to the Chief Justice of the Texas Supreme Court for assignment.

      The following day, October 1, 2014, Wilma filed “Motion to Recuse Judge
Randy M. Clapp” pursuant to Texas Rules of Civil Procedure 18a and 18b. Wilma
sought to recuse Judge Underwood in the motion filed on October 1, 2014. The
reporter’s record of the October 1, 2014 hearing before Judge Clapp reflects that he
denied Wilma’s motion to recuse him and referred the motion to Judge
Underwood. Judge Clapp also signed an order denying the motion to recuse and
referred the case to Judge Underwood. On October 2, 2014, Judge Underwood
denied Wilma’s motion to recuse himself.5

      5
          Judge Underwood’s October 2, 2014 order stated, in relevant part:

              The previous Order Denying Recusal was abundantly clear about this
      position. There is no statute or rule that requires recusal in fulfilling this mandate.
      Texas Rules Civil Procedure Rule 18a(g)(l) states:

               (g) Duties of Regional Presiding Judge.

                       (1) Motion. The regional presiding judge must rule on a referred
                       motion or assign a judge to rule. If a party files a motion to recuse
                       or disqualify the regional presiding judge, the regional presiding
                       judge may still assign a judge to rule on the original, referred
                       motion.
                                                 4
      On October 24, 2014, Judge Underwood assigned Judge Jeff Walker to hear
Wilma’s motions to recuse Judge Dibrell and Judge Clapp, and set the hearing for
October 29, 2014.       On October 27, 2014, Wilma filed her motion entitled
“Objection to Assignment of Senior Judge Jeff Walker…” and objected under
section 74.053 of the Texas Government Code to the assignment of Judge Walker
to hear the motions to recuse Judge Dibrell and Judge Clapp. See Tex. Gov’t Code
Ann. § 74.053(b) (West 2013). Wilma contended that this was her first objection
lodged under section 74.053, and requested that the Chief Justice of the Texas
Supreme Court consider, or assign a judge to hear, the motions to recuse.

      On October 29, 2014, Judge Walker denied Wilma’s objection to his
assignment because he concluded that her objection to him was the second Chapter
74 objection she had filed in the case. Judge Walker also denied the motions to
recuse Judge Dibrell and Judge Clapp; he ordered Wilma and her attorney to pay
attorney’s fees to her husband and to the amicus attorney as sanctions.

                              II. STANDARD OF REVIEW

      To be entitled to mandamus relief, a relator must demonstrate (1) the trial
court clearly abused its discretion; and (2) the relator has no adequate remedy by
appeal. In re Reece, 341 S.W.3d 360, 364 (Tex. 2011) (orig. proceeding). A trial
court clearly abuses its discretion if it reaches a decision so arbitrary and

              The motion brings no valid grounds for recusal and the Court finds it
      essential to correct Movant and Movant's Counsel in their filing of the present
      Motion to Recuse. The Court finds that the motion itself has been clearly brought
      for unnecessary delay, constitutes a wasting of judicial time and resources, and
      has hindered the trial Court from its mandated mission. Such obstructive
      behaviors bring reproach to the profession of law, and are worthy of reprimand.
      The Court will take under advisement the consideration of sanctions.

                                             5
unreasonable as to amount to a clear and prejudicial error of law or if it clearly
fails to analyze the law correctly or apply the law correctly to the facts. In re
Cerberus Capital Mgmt. L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding)
(per curiam). If the relator establishes that disqualification of the visiting judge
was mandated upon a proper objection, she need not show the lack of an adequate
remedy by appeal. Mitchell Energy Corp. v. Ashworth, 943 S.W.2d 436, 437 (Tex.
1997) (orig. proceeding).

                                   III. ANALYSIS

      Wilma contends that her objection to Judge Walker was her first Chapter 74
objection. See Tex. Gov’t Code Ann. § 74.053. The key provision, entitled
“Objection to Judge Assigned to a Trial Court,” provides as follows:

      (a) When a judge is assigned to a trial court under this chapter:

      (1) the order of assignment must state whether the judge is an active,
      former, retired, or senior judge; and

      (2) the presiding judge shall, if it is reasonable and practicable and if
      time permits, give notice of the assignment to each attorney
      representing a party to the case that is to be heard in whole or part by
      the assigned judge.

      (b) If a party to a civil case files a timely objection to the assignment,
      the judge shall not hear the case. Except as provided by Subsection
      (d), each party to the case is only entitled to one objection under this
      section for that case.

      (c) An objection under 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. The

                                          6
      presiding judge may extend the time to file an objection under this
      section on written motion by a party who demonstrates good cause.

      (d) An assigned judge or justice who was defeated in the last primary
      or general election for which the judge or justice was a candidate for
      the judicial office held by the judge or justice may not sit in a case if
      either party objects to the judge or justice.

      (e) An active judge assigned under this chapter is not subject to an
      objection.

      (f) For purposes of this section, notice of an assignment may be given
      and an objection to an assignment may be filed by electronic mail.

      (g) In this section, “party” includes multiple parties aligned in a case
      as determined by the presiding judge.

Tex. Gov’t Code Ann. § 74.053.

      If an objection is timely made, the assigned judge’s disqualification is
automatic and all of the judge’s subsequent orders are void. Tex. Gov’t Code Ann.
§ 74.053(b); In re Canales, 52 S.W.3d 698, 701 (Tex. 2001) (orig. proceeding). A
party is allowed one objection to an assigned judge; no limit applies to a former
judge “who was defeated in the last primary or general election for which the judge
or justice was a candidate for the judicial office held . . . .” Tex. Gov’t Code Ann.
§ 74.053(b), (d); see also Mitchell Energy Corp., 943 S.W.2d at 437. Under
subsection (e), “An active judge assigned under this chapter is not subject to an
objection.” Tex. Gov’t Code Ann. § 74.053(e).

      Wilma filed recusal motions against four of the seven judges—Sklar,
Dibrell, Clapp, and Underwood. Wilma did not file recusal motions against Judge
Robertson or Judge Hufstetler, both of whom recused without motions having been

                                          7
filed. Wilma filed “objections” to the assignment of Judge Clapp. However, “an
active judge assigned under this chapter is not subject to an objection.” Tex. Gov’t
Code Ann. § 74.053(e). Judge Clapp is an elected judge and, therefore, is not
subject to an objection under section 74.053(e). See id.6

       Wilma also objected to Judge Underwood in the same document in which
she objected to Judge Clapp.             Wilma “reiterate[d] her objections to Judge
Underwood’s involvement to [sic] any assignment in relation to her Motion to
Recuse.” There is room to discuss whether Wilma’s Chapter 74 objection to Judge
Clapp counted toward section 74.053(b)’s limit regardless of its effectiveness
under section 74.053(e). Even assuming for argument’s sake that the section
74.053 objection lodged against Judge Clapp on September 30, 2014 was not
effective for purposes of section 74.053(b)’s one-objection limit, the September 30,
2014 objection to Judge Underwood nonetheless was effective for this purpose.
Thus, Wilma’s October 27, 2014 objection to Judge Walker was her second
pursuant to section 74.053.           Because Wilma’s objection to Judge Walker’s
assignment was an impermissible second objection, he had no duty to sustain
Wilma’s objection to his assignment.                Therefore, his orders (1) denying the

       6
          See also Bitter v. Comm’n for Lawyer Discipline, Nos. 02-12-00197-CV, 02-12-00198-
CV, 02-12-00199-CV, 2014 WL 1999315, at *10 (Tex. App.—Fort Worth May 15, 2014, no
pet.) (mem. op.) (observing that “a judge appointed under this chapter is not subject to objection
if the judge is an active judge”); Kaminetzky v. Dosohs I, Ltd., No. 14-03-00567-CV, 2004 WL
1116960, at *4 n.3 (Tex. App.—Houston [14th Dist.] May 20, 2004, no pet.) (mem. op.) (noting
that the parties did not explain how section 74.053 mandated the automatic disqualification of an
elected judge and holding that the appellant’s complaints about an elected judge presiding over
the appeal to the county court were without merit); In re Newby, No. 07-03-0506-CV, 2003 WL
22962184, at *1 (Tex. App.—Amarillo Dec. 16, 2003, orig. proceeding) (mem. op.) (observing
that, because the assigned judge was a “duly elected, active district court judge,” his assignment
to hear the motion to recuse was not subject to objection).
                                                8
objection to his assignment; (2) denying the motion to recuse Judge C.G. Dibrell;
(3) denying the motion to recuse Judge Randy Clapp; and (4) imposing sanctions
are not void. Cf. Canales, 52 S.W.3d at 701 (“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.”).

                                 IV. CONCLUSION

      We conclude that, because Wilma’s objection to Judge Walker’s assignment
as a visiting judge was her second objection under section 74.053, Judge Walker
was not required to sustain Wilma’s objection to his assignment. Wilma has failed
to show that she is entitled to mandamus relief. Accordingly, we deny her petition
for writ of mandamus.



                                       /s/       John Donovan
                                                 Justice

Panel consists of Justices Boyce, Jamison, and Donovan (Jamison, J., concurring).




                                             9
