REVERSED AND REMANDED, Opinion issned April 17, 1997

In The

<&0urt of Appeals ^

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 afinal order modifying adecree of divorce. 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 of the 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 Brian William CoUier were divorced in 1988. The divorce decree was

entered by Judge Robert O'Donnell, the presiding jndge ofthe 301stJudicial District Court.

The divorce decree designated Bourgeois as managing conservator and Collier as possessory

modify the divorce decree. The motion, among other things, sought amodification of the

conservatorship. Collier moved for entry of temporary orders. Judge O'Donnell, still

presiding in the 301st, granted temporary orders appointing Collier temporary managing

conservator and requiring Bourgeoisto surrender the children's clothing and personal effects

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

Government Code, sitting in the 30!st under ageneral assignment for aperiod of one weeK,

presided over the contempt hearing. Judge Moss found Bourgeois in contempt. He ordered

her to turn over the clothing and persona, effects forthwith, assessed S873 in attorneys' fees

and court costs against Bourgeois, and sentenced her to thirty days in jail, suspended for six

months.
Shortly thereafter, Judge O'Donnell recused himself due to health reasons. On May

18 1994, the presiding judge of the 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 awritten 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

judge Moss eventually entered afina, order modifying the divorce decree. The final order,

in general, granted the custody arrangement Collier requested.

Thereafter, Bourgeois filed amotion for rehearing and amorion to disqualify and/or

timely thus it need not be ruled upon, and further stating that the motion to disqualify failed

to identify abasis for disqualification. The motion for rehearing was overruled by operation

of law. See Tex. R. Qv. P. 328. This appeal followed.'

1To pl«» Bourgeois' points ol o, .not „,„ i.m,^—. por.o—,---«-»- --"' —*° —*•~-«

""'" * °,*C"0° "d

motion- -In •».1.0 b»i> Of BoU„0Oi.' P0i0« Of .,,0. «t00. «.«!». 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'Donnell entersternary orders and orders paternity testing.

March 1994: Judge Moss is assigned to the 301st under agenera! assignment.

April 41994: Judge Moss, still sitting under ageneral assignment, presides over

v ' Collier's motion for contempt.

May 2, 1994: Judge O'Donnell recuses himself. (continued...)

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Objection to Assignment

In point of error number one, Bourgeois asserts Judge Moss erred in overruling her

objection to the special assignment. Bourgeois objected pursuant to section 74.053 of the

Texas Government Code which provides as follows:

(a) When ajudge 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 aparty to the case that is to be heard mwhole 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: Bourgeoisobjectsto JudgeMoss's assignment pursuant to section ' 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. *-!«/^^ of CM[ 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' motion for rehearing is overruled by operation of law. See

Tex. R. Civ. P. 328.

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(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) Aformer judge or justice who was not aretired judge 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 aparty files atimely objection to an assigned judge 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 4general assignment that authorized Judge Moss to preside over the 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 of time 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! othef matters growing out of cases tried by the Judge

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herein assigned during this period.

No party objected to Judge Moss presiding over the April 4, 1994 contempt hearing. 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 that the general assignment did not authorize Judge Moss to preside

a, the trial on the merit, It authorized him only to preside over the contempt hearing and

,o complete the trial ofthe contempt hearing and any matters "growing out of the contempt

hearing that extended beyond the term of the 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

assignment limited to »hear[ing] cause no. 92-8850-T; Styled: Collier v. 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, if an assigned judge sitting under ageneral 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).

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Acontempt proceeding, however, is no. necessarily apretrial hearing but can be aseparate

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). Amotion for contempt is comparable to acrhninal indictment. See Ex

pane Oliver. 736 S.W.2d 277, 278 (Tex. App.-For. Worth 1987, orig. proceeding). The

contemner must be personally served with 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 indigent contemnor may have aright to appointed counsel,see Bepane Keene, 909

S.W.2d 507, 508 (Tex. 1995), and he is entitled to aStxth Amendment right to trial by jury

if charged with amajor offense. See Ez pane Sproull. 815 S.W.2d 250 (Tex. 1991). As a

general rule, the validity of acontempt 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

contempt proceeding, al, Cher proceedings under the same style "grow out of the contempt

proceeding. Clearly, acontempt proceeding can be separate and independent from atrial

on the merits. Each case must be reviewed according to its own facts.

in the case at bar, we initially note that the presiding judge of the First A.J.R. issued

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

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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 administrative judge

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 on February 11 by faffing to surrender the children's clothing and personal effects

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

hearing, the live pleading on the merits was Collier'sthird amended motion to modify in suit

affecting parent-child relationship. That pleading, unlike the contempt proceeding, did not

concern the children's personal property. To the contrary, the pleading specifically stated

that "Where has been no change in the status of the children's property since the rendition

of the order sough, to be modified." Similarly, neither the final order on the motion to

modify nor the findings of fact and conclusions of law entered by Judge Moss concerned the

children's personal property.

Accordingly, in considering the unique nature of contempt proceedings in light ofthe

facts of this case, we conclude the trial on the merits of the underlying case did no, "grow

out of the contempt proceeding. Thus, Judge Moss had no authority, except by the special

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

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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 issued by Judge Moss after May 31,1994, the date ofBourgeois's objection, are

vacated. See id.

Motion to Disqualify and/or Recuse'

Judge Moss entered afinal order on Collier's motion to modify on July 21,1995. On

August 3, 1995, Bourgeois filed amotion for rehearing. On the same day, she also filed a

motion to disqualify and/or recuse Judge Moss pursuant to rule 18a of the Texas Rules of

Civil Procedure. The general background facts 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

apersonal 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—><«—«•• —»•

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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 afair trial. Bourgeois also aUeged that

Judge Moss had personal knowledge of disputed evidentiary facts, and he was "privy" to

attorney work product and inadmissible evidence.

Based on those allegations, Bourgeois moved to recuse Judge Moss on the basis that

his impartiality might reasonably be questioned and he was so tainted by personal knowledge

of disputed 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 of the Texas Constitution and rule 18b(l) of the Tex. Rules of Civil

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

judgment was not timely and would not be considered. As to the motion to disqualify, Judge

Moss ruled as follows:

1, is asettled principle of law that the interest which disqualifies

ajudge is thatmterest, however small, which rests upon..f duect

pecuniary or personal interest in the result of^ he case

nresented to the judge of the court. [Citation omitted.] Movant fail toidentify, in pleading or in testimony, any pecumary or personal interest held by the judge. Hence there >no bas,s for

disqualification.

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In point of error number two, Bourgeois asserts that Judge Moss erred in issuing the

above order without complying with rule 18a of the Texas Rules of Civil Procedure,' which

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

presiding judge of the Firs, A.J.R. See Tex. 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, Judge Moss did no, rule on the motion but merely stated i, was not timely

ffled. We disagree. Rule 18a requires 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

3Rule 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 presiding judge of the administrative judicial district to assign ju g

such motion.

* * *

and shall take no further action in

on the motion

Tex. R. Crv. P. 18a.

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motion was filed after entry of final order, it was filed timely in relation to Bourgeois's

motion for rehearing." Moreover, even if the motion was not timely, Judge Moss was still

required to either recuse himself or refer the motion to the presiding administrative judge

before he took any further action. See Lamteni, 776 S.W.2d a, 652 (regardless of

procedural sufficiency of motion, trial judge must recuse himself or refer case to presiding

administrative judge). In mis case, Judge Moss entered findings of fact 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 on the merits of the motion. That issue is not before 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 of rule 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 of fact and conclusions of

law are vacated.

motion, but her requests were to no avail.

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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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'ZXJUJ