REVERSED AND REMANDED, Opinion issnedApril 17, 1997

In The <&0urt ofAppeals ^ jTtftlr Etstrtrt of©exas at Sailas
No. 05-95-01501-CV
PAMELA BOURGEOIS, Appellant

V. BRYAN WILLIAM COLLIER, Appellee On Appeal from the 301st Judicial District Court Dallas County, Texas Trial Court Cause No. 92-08850-T

OPINION Before Justices Lagarde, Whittington, and James Opinion By Justice Lagarde This is an appea, from a final order modifying a decree ofdivorce. In two points of 

### error, appeUan, Pamela Bourgeois asserts that Judge Robert G. Moss, an assigned former 

### judge, erred: (1) in overruling her objection to his assignment, and (2) in overruling her motion to disqualify and/or recuse without complying with rule 18a ofthe Texas Rules of Civil Procedure. We sustain both points. The final order of the trial court, and other

### orders, findings, and conclusions as se, forth below, are vacated. This cause is remanded ,0 the trial court for further proceedings consistent with this opinion. Factual and Procedural Background Bourgeois and BrianWilliam CoUierwere divorced in 1988. The divorce decree was 

### enteredbyJudge RobertO'Donnell, the presidingjndgeofthe 301stJudicialDistrictCourt. The divorce decree designated Bourgeois as managing conservator and Collier as possessory 

### modify the divorce decree. The motion, among other things, sought a modification ofthe conservatorship. Collier moved for entry of temporary orders. Judge O'Donnell, still 

### presiding in the 301st, granted temporary orders appointing Collier temporary managing conservatorandrequiringBourgeoisto surrenderthechildren'sclothingand personaleffects

to Collier. Collier filed amotion for contempt alleging Bourgeois disobeyed the temporary 

### orders by failing to surrender the clothing and personal effects. On April 4, 1994, Judge Moss, aformer judge subject to the provisions of section 74.053(d) of the Texas 

### GovernmentCode, sitting inthe 30!stunder a general assignmentfor a periodofoneweeK, 

### presidedoverthecontempthearing. JudgeMossfoundBourgeoisincontempt. Heordered her to turn overthe clothing and persona, effects forthwith, assessed S873 in attorneys' fees 

### and court costs againstBourgeois, and sentenced her to thirty days injail, suspendedfor six

months.

### Shortly thereafter, Judge O'Donnellrecused himselfdue to health reasons. OnMay 

### 18 1994, the presidingjudge ofthe Firs. Administrative Judicial Region ("Firs, A.J.R.") 

### specially assigned Judge Moss to hear this case. Bourgeois objected to the special assignment. Judge Moss overruled the objection by a written order which stated that Bourgeois waived the right to object to the special assignment because Judge Moss had earlier presided over the contempt hearing without objection. The case proceeded and judgeMoss eventually entered a fina, ordermodifyingthe divorce decree. Thefinal order, in general, granted the custody arrangement Collier requested. Thereafter, Bourgeois filed a motion for rehearing and a morion to disqualify and/or 

### timelythus itneednotbe ruled upon, andfurther statingthatthemotionto disqualifyfailed to identify a basis for disqualification. The motionfor rehearingwas overruledby operation of law. See Tex. R. Qv. P. 328. This appeal followed.'

o, „,„ i. ,^—.

- «-»-
— *° —*• ~-« ""'" * °,*C"0° "d 1 To pl«» Bourgeois' points ol .not mpor.o—, -- --"'

- -In •» .1.0 b»i> Of BoU„0Oi.' P0i0« Of .,,0. «t00. « .«!». motion which form the basis July 1992: Collier files motion to modify final decree of divorce. January 1994: Judge O'Donnell hears motion for temporary orders and appoints a guardian ad litem. Februaryl994: Judge O'Donnellentersternary orders andorderspaternitytesting. March 1994: Judge Moss is assigned to the 301st under a genera! assignment. April 41994: Judge Moss, still sitting under a general assignment, presides over v ' Collier's motion for contempt. May 2, 1994: Judge O'Donnell recuses himself. (continued...)

-3-Objection to Assignment 

### In point oferror number one, Bourgeois asserts Judge Moss erred in overruling her 

### objection to the special assignment. Bourgeois objected pursuant to section 74.053 ofthe Texas Government Code which provides as follows: (a) When a judge is assigned under this chapter the presiding udge shall, if it is reasonable and practicable and rf rime permits, give notice of the assignment to each attorney 

### repenting a party to the case thatis to be heard m whole or in part by the assigned judge.

1(...continued) May 18,1994: The presiding judge of the First A.J.R. specially assigns Judge Moss

to this case. May 31 1994: BourgeoisobjectstoJudgeMoss'sassignmentpursuanttosection

' 74.053 of the Texas Government Code. June 12,1994: Judge Moss overrules Bourgeois' objection to his assignment on the basis that it was nottimely filed. oSter OT4: Judge Moss enters orders on motions in limine. June 1995: Judge Moss conducts evidentiary hearings on Collier's motion to modify. July 21,1995: Judge Moss enters order on Collier's motion to modify. A

. , 1W5- Bourgeois files motion to disqualify andlor recuse Judge Moss August 3,1995. *-!«/^ ^ ofCM[ Pfocedure 18a. August 3, 1995: Bourgeois files motion to reconsider July 21 order modifying divorce

decree. October 8, 1995: Judge Mo, overrules Bourgeois' motion to recuse and disaualify on the basis that it was not timely filed. October 81995: Judge Moss enters findings of fact and conclusions of law in support October 8, v» ^ £ ^ ^ ^ modifying the divorce decree. October 17 1995: Bourgeois' motionfor rehearing is overruledby operationoflaw. See
Tex. R. Civ. P. 328.

-4-(b) If a party to a civil case files a timely objection to the assignment, the judge is disqualified to hear the case. (c) An objection under this section must be filed before the first hearing or trial, over which the assigned judge is to preside. (d) A former judge orjustice who was not aretiredjudge may not sit in a case if either party objects to the judge or justice. Tex. Gov't Code Ann. §74.053 (Vernon Supp. 1997). When a partyfiles a timely objectionto an assignedjudge under section 74.053 ofthe Texas Government Code, the assigned judge's disqualification is mandatory, and any 

### subsequent orders he issues are nullities. * pane Holland, 807 S.W,d 827, 828 (Tex. 

### App,-Dallas 1991, orig. proceeding); Stames , Cnapman, 793 S.W.2d 104, 107 (Tex. App.-Dallas 1990, orig. proceeding). Collier argues that Bourgeois's objection to the special assignment was properly overruled. He argues that the May 18 special assignment was a"ministerial act" because 

### the April 4 general assignmentthatauthorizedJudgeMoss to preside overthe 301s«District Court authorized him to preside over the contempt hearing and the trial on the merits of 

### the motion to modify. Collier bases his argument on the language of the general assignment, which provided as follows: This assignment is for the period of one week,

. beginning the 4th day of April. 1994, provided that this assignment shall

ontinue after the' specified period oftime as may benecessary for the assigned judge to complete tnal of any case or case begun during this period, and to pass on mofions for new tnal andTM! othefmatters growing out ofcases tried by the Judge

-5-herein assigned during this period. No party objected to Judge Moss presiding overthe April 4, 1994 contempthearing. Thus, Collier argues that Judge Moss's general assignment continued "after the specified period of time as [was] necessary ... to complete [the] trial" and to rule on all other "matters 

### growing out of the contempt hearing. That language, according to Collier, authorized Judge Moss to preside at the trial on the merits. Bourgeois argues thatthegeneralassignment didnotauthorizeJudge Moss to preside a, the trial on the merit, It authorized him only to preside over the contempt hearing and ,o complete thetrial ofthe contempthearing and anymatters "growingout ofthe contempt hearing that extended beyond the term ofthe assignment. The contempt hearing was an 

### action separate and independent from the trial on the merits. In contrast, the special 

### assignment authorized Judge Moss to preside over the trial on the merits. The special assignment was similar in form to the genera, assignment set forth above, but was an 

### assignmentlimitedto »hear[ing] cause no. 92-8850-T; Styled: Collierv. Collier." Therefore, Bourgeois argues that without the May 18 special assignment, Judge Moss was no, authorized to preside over the trial on the merits, and her objection made before Judge Moss presided over any hearing under special assignment was timely. We agree. Ordinarily, ifan assignedjudge sitting under a general assignment presides over any 

### pretrial hearing, he is authorized to hear all related proceedings, including trial on the meri,s. See Money , Jones, 766 S.W.2d 307, 308 (Tex. App.-Dallas 1989, writ denied).

-6-A contempt proceeding, however, is no. necessarily a pretrial hearing but canbe a separate 

### and independent proceeding. Contempt is a "unique" sanction. See £* pane Gnffln, 682 S.W.2d 261, 263 (Tex. 1984) (Robertson, J. concurring). It is not an ordinary civil 

### proceeding because it is quasi-criminal in nature. See Bepane Cartel,. 416 S.W.2d 382, 384 (Tex. 1967). A motion for contempt is comparable to a crhninal indictment. See Ex 

### pane Oliver. 736 S.W.2d 277, 278 (Tex. App.-For. Worth 1987, orig. proceeding). The contemnermustbe personally servedwith the motion, see £* pane Cabell, 416 S.W.2d at 

### 384, and must have reasonable notice of the charges. See E*pane Oliver, 736 S.W.2d at 278. An indigentcontemnormay have arightto appointed counsel, seeBepaneKeene, 909 S.W.2d 507, 508 (Tex. 1995), and he is entitledto a Stxth Amendmentright to trial byjury 

### ifcharged with a major offense. See Ezpane Sproull. 815 S.W.2d 250 (Tex. 1991). As a 

### general rule, the validity of a contempt judgment cannot be appealed but can only be attacked collaterally by habeas corpus. See £* pane Seal,, 870 S.W.2d 663, 666 (Tex. App.-Houston [1st Dist] 1994, orig. proceeding). Thus, we reject the contention that because an assigned judge presides over a 

### contemptproceeding, al, Cherproceedings underthe samestyle "growoutofthe contempt 

### proceeding. Clearly, a contempt proceeding canbe separate and independentfrom a trial
on the merits. Each case must be reviewed according to its own facts. 

### in the case atbar, we initially note that the presidingjudge ofthe FirstA.J.R. issued 

### a special ass.gnment. Judge Moss's order overruling Bourgeois's objection to his special

-7-assignment characterizes the special assignment as "superfluous" because the general assignment vested him with authority to preside over all matters in controversy. We reject that contention. The more reasonable conclusion is that the presiding administrativejudge viewed the contempt proceeding as separate and independent from the trial of the
underlying case. Next, we look to the issues in controversy in the contempt proceeding. The motion for contempt alleged that Bourgeois violated the temporary orders entered by Judge O'Donnell onFebruary 11 byfaffing to surrenderthe children's clothing andpersonal effects 

### (such as toys and items of personal enjoyment) to Collie, A. the rime ofthe contempt 

### hearing, the live pleading onthe meritswas Collier'sthird amendedmotionto modify in suit affecting parent-childrelationship. That pleading, unlike the contemptproceeding, did not concern the children's personal property. To the contrary, the pleading specifically stated 

### that "Where has been no change in the status ofthe children's property since the rendition of the order sough, to be modified." Similarly, neither the final order on the motion to 

### modify northe findings offact and conclusions oflaw enteredby Judge Moss concernedthe
children's personal property. Accordingly, in considering the unique nature ofcontemptproceedings in light ofthe facts ofthis case, we conclude the trial on the merits ofthe underlying case did no, "grow 

### out ofthe contempt proceeding. Thus, Judge Moss had no authority, exceptby the special 

### assignment, to preside over the trial on the merits. Because Bourgeois objected to the

-8-

### assignment of Judge Moss before he presided over ahearing pursuant to the special 

### assignment, his disqualification was mandatory. See S.ames, 793 S.W.2d at 107. Accordingly, Bourgeois's first point of error is sustained and all orders, findings, and conclusions issuedbyJudge Moss afterMay 31,1994, the date ofBourgeois's objection, are

vacated. See id. Motion to Disqualify and/or Recuse' 

### JudgeMoss entered a final orderon Collier's motion to modify onJuly 21,1995. On 

### August 3, 1995, Bourgeois filed a motion for rehearing. On the same day, she also filed a motion to disqualify and/or recuse Judge Moss pursuant to rule 18a ofthe Texas Rules of Civil Procedure. The generalbackgroundfacts alleged in that motion include the following: 

### Judge Moss had preconceived opinions about Bourgeois and her character. In support of this contention, Bourgeois alleged that Judge Moss engaged in gossip about Bourgeois's sexual activities. The alleged gossip was with two legal assistants who worked for an 

### attorney Bourgeois was considering retaining. He disclosed to those same legal assistants 

### a

personal childhood trauma experienced by Bourgeois. He also remarked to Bourgeois, who was pregnant, "I can't figure ou, what you like better

- being pregnant or getting that 

### way. Bourgeois interpreted that remark as having sexual connotations and constituting

^;s: sT -^", r~ m. i—> <«— «•• —»•

-9-sexual harassment. Bourgeois further alleged that Judge Moss, in an ex parte communication, told Bourgeois's counsel that Bourgeois was contacting other attorneys 

### regarding her representation. Bourgeois alleged this interference destroyed her ability to work effectively with her counsel and denied her a fair trial. Bourgeois also aUeged that 

### Judge Moss had personal knowledge ofdisputed evidentiary facts, and he was "privy" to attorney work product and inadmissible evidence. Based on those allegations, Bourgeois movedto recuse Judge Moss on the basis that 

### hisimpartialitymightreasonablybequestioned andhewas sotaintedbypersonalknowledge 

### ofdisputed facts that he had already prejudged the case. Further, she moved to disqualify Judge Moss because he had an "interest in the subject matter in controversy pursuant to 

### [article 5, section 11 ofthe Texas Constitution and rule 18b(l) ofthe Tex. Rules ofCivil

Procedure]." On October 6, 1995, Judge Moss issued an "Order on Motion to Disqualify and/or 

### Recuse." In that order, Judge Moss stated tha, the motion to recuse filed after entry of 

### judgmentwas nottimely andwouldnotbe considered. Asto the motionto disqualify, Judge

Moss ruled as follows: 1, is asettled principle oflaw that the interest which disqualifies a

judge is thatmterest, however small, whichrests upon..fduect pecuniary or personal interest in the result of^ he case nresented to thejudge ofthe court. [Citation omitted.] Movant fail toidentify, in pleading or in testimony, any pecumary or personal interest held by thejudge. Hence there > no bas,s for disqualification.

-10-In point oferrornumbertwo, Bourgeois asserts thatJudge Moss erred in issuing the above orderwithout complying with rule 18a ofthe Texas Rules ofCivil Procedure,' which 

### if applicable, required Judge Moss to either recuse himself or refer the motion to the 

### presidingjudge ofthe Firs, A.J.R. SeeTex. R. Crv. P. 18a; „ also, Lambeni, TscHoepe, 776 S.W.2d 651, 652 (Tex. App.-Dallas 1989, wti. denied); Greenter,, Benson, Fisk * Fielder, PC. v. Howell. 685 S.W.2d 694, 695 (Tex. App.-Dallas 1984, no writ). 

### Collier argues that rule 18a does not apply because the motion was not timely filed 

### and, in any event, JudgeMoss didno,rule onthe motionbutmerely statedi, was nottimely ffled. We disagree. Rule 18arequires the motion to be filed "at leas, ten days before the 

### date se, for trial or other hearing." *. Ts, R. Crv. P. 18a(a). Although Bourgeois's

3 Rule 18a provides in relevant part as follows: SEES «*»».-" -S—-»- "*—"^"" case is pending should not sit in the case.

• * » (e) Prior to any further proceeding in the case, ^^£ZZ%£g£ request the presidingjudge ofthe administrative judicial district to assign ju g such motion.

* * *

and shall take no further action in
on the motion

Tex. R. Crv. P. 18a.

-11-motion was filed after entry of final order, it was filed timely in relation to Bourgeois's motion for rehearing." Moreover, even ifthe motion was not timely, Judge Moss was still 

### required to either recuse himselfor refer the motion to the presiding administrativejudge before he took any further action. See Lamteni, 776 S.W.2d a, 652 (regardless of 

### procedural sufficiency ofmotion, trialjudge must recuse himselforrefer case to presiding administrativejudge). In mis case, Judge Moss entered findings offact and conclusions of
law after the motion was filed. We also reject Collier's contention that Judge Moss did no. actually rule on the motion. The order states that the motion to recuse was no, timely filed and that there was

no basis for disqualification. 

### We express no opinion onthe merits ofthe motion. That issue is notbefore us. We 

### only conclude that (1) Judge Moss was no, authorized ,o rule on the motion ,o disqualify and/or recuse, and (2) Judge Moss was required to comply with the mandates ofrule 18a 

### and, after the motion was filed, was no. authorized to take any action except for those actions specifically authorized by rule 18a. Accordingly, the October 6, 1995 order on 

### Bourgeois's motion to recuse and/or disqualify and the findings offact and conclusions of

law are vacated.

motion, but her requests were to no avail.

-12-Bourgeois's motion to recuse and/or disqualify and the findings of fact and conclusions of

law are vacated.
Conclusion For the reasons set forth above, the final order modifying the divorce decree and other orders, findings and conclusions as identified in this opinion are vacated. This matter remanded to the trial court for further proceedings consistent with this opinion. is

Publish Tex. R. App. P. 90 951501F.P05 SUE LAGARDE JUS^

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