Writ ofMandamus 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 aretiredjudge abused his discretion in overruling their objection to his assignment to hear amotion to recuse the trialjudge 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, and Heather 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 of the 95th District Court. 

### The presidingjudge ofthe administrative region appointed the Honorable Bill Stephens, aretired judge, to hear the motion to recuse. Before the start of the 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 toJudge 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 this theirobjectionto 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 ofcounsel, Judge Stephens overruled the objection. Relators contends that 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 assertthat a section 74.053 objection does not disqualify a judge assigned to hear a recusal 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 aretiredjudge 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 claimthat relators have waived their objectionunder section 74.053 

### by failing to file a copy ofthe objection withthe clerkbeforethe hearingbegan. 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 assignedjudge 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 onthe motionto recuse the trialjudge. Judge Stephens read the objection in open court and 

### pronouncedit a "matterof record." Underthese circumstances, weconcluderelatorsfiled a sufficient objection under section 74.053(d).1 

### Because relators properly objected to Judge Stephens under section 74.053, we conclude he
1SectionT^Wpermitseachpartytothecaseto make onlyoneobjection*the ^^f^^^f^^^ Stephens, relators haveusedtheirobjectionandmaynot objectinthefuture exceptas prov.ded m sechon74.053(d). SeeIn rePemtt, 42 Tex. Sup.

a. J. at 410 n.2.

-2-abused his discretion in overruling the objection. See In re 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 of mandamus. 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 to file a certified copy of his order in compliance with this opinion no later than April 1, 1999. This Court's order staying all proceedings in 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's February 3, 1999 stay order is vacated without further action.

Do Not Publish Tex. R. App. P. 47

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# CLJ L (Z~-lsDAVJD L. BRIDGES JUSTICE