Writ of Mandamus Granted, Opinion and Order issued March 18,1999

In The

Gfrmrt of Appeals

Jfltftlj district of ©exas at Dallas

No. 05-99-00117-CV

IN RE LARRY RUTT, JANELLE FRIEDMAN, AND HEATHER RUTT, Relators

From the 95th Judicial District Court

Dallas County, Texas

Trial Court Cause No. 96-02607-F

OPINION AND ORDER

Before Justices Whittington and Bridges

Opinion by Justice Bridges

Larry Rutt, Janelle Friedman, and Heather Rutt (relators) contend aretired judge abused his

discretion in overruling their objection to his assignment to hear amotion to recuse the trial judge in

the underlying case. This original proceeding arises from acase pending in the 95th Judicial District

Court ofDallas County, Texas, styled Larry Rutt, Janelle Friedman, andHeather Rutt v. Don Ambrose

and Mary Ambrose, individually and as nextfriends ofBrad Ambrose and Brad Ambrose individually.

Relators filed amotion to recuse the Honorable Sally Montgomery, Judge ofthe 95th District Court.

The presiding judge ofthe administrative region appointed the Honorable Bill Stephens, aretired

judge, to hear themotion to recuse.

Before the start ofthe hearing on the motion to recuse, relators objected to Judge Stephens's

assignment to hear the motion to recuse under section 74.053 ofthe Government Code. See TEX.

Gov't. Code Ann. §74.053 (Vernon 1998). Relators' counsel handed the written objection to
Judge Stephens. At that point, Judge Stephens stated:

I'm going to read you this objection, and let it be a matter of record. To the

Honorable Judge ofsaid Court, comes now Heather M. Rutt, Janelle Friedman and

LarryRutt collectively, plaintiffs, and file thistheir objection to the assignedjudge and

the cause and respectfully show unto the Court the following: Plaintifffiled this their

objection to the assigned Judge pursuant to Texas Government Code 74.063.

After hearing arguments of counsel, Judge Stephens overruled the objection.

Relators contendsthat Judge Stephens abused his discretion in overruling the objection to his

assignment to hear the motion to recuse because an objection under section 74.053 automatically

disqualifies him from hearing the case. In response, the real parties in interest raise two arguments.

First, they assert that asection 74.053 objection does not disqualify ajudge assigned to hear arecusal

motion under rule 18a ofthe Texas Rules ofCivil Procedure. We disagree. The Texas Supreme

Court recently held that asection 74.053 objection does apply to aretired judge assigned to hear a

recusal motion under rule 18a . See In re Perritt, 42 Tex. Sup. Ct. J. 409, 409 (March 11, 1999).

Next, the real parties in interest claim that relators have waived their objection under section 74.053

by failing to file acopy ofthe objection with the clerk before the hearing began. Again, we disagree.

Section 74.053(d) requires that an objection under section 74.053 must be filed before the first

hearing or trial over which the assigned judge is to preside. Tex. Gov't. Code Ann. §74.053(d)

(Vernon 1998). Here, relators' attorney handed the written objection to Judge Stephens before the

hearing on the motion to recuse the trial judge. Judge Stephens read the objection in open court and

pronounced it a"matterofrecord." Underthese circumstances, we conclude relatorsfiled asufficient

objection under section 74.053(d).1

Because relators properly objected to Judge Stephens under section 74.053, we conclude he

1SectionT^Wpermitseachpartyto the case to make only one objection* the^^f^^^f^^^ Stephens, relators have used their objection and may not object in the future except as prov.ded msechon 74.053(d). See In rePemtt, 42 Tex. Sup. a. J. at 410 n.2.

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abused his discretion in overruling the objection. See Inre Houston Lighting &Power Co., 976

S.W.2d 671,672(Tex. 1998) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.

1992) (orig. proceeding). We conditionally grant relators'petition for writ ofmandamus. We direct

Judge Stephens to vacate his order denying relators' objection and enter an order granting the

objection. IfJudge Stephens enters an order in compliance with this opinion, mandamus will not

issue. Judge Stephens is tofile a certified copy ofhis order in compliance with this opinion no later

than April 1, 1999.

This Court's order staying all proceedingsin this case in the trial court remains in effect until

Judge Stephens files an order in compliance with this opinion or until mandamus issues. Thereafter,

this Court'sFebruary 3, 1999 stay order isvacated without further action.

Do Not Publish

Tex. R. App. P. 47

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CLJ L (Z~-lsDAVJD L. BRIDGES

JUSTICE