DISSENT and Opinion Filed July 5, 2022 

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In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05-22-00435-CV IN RE BRENDA L. CADDELL, Relator Original Proceeding from the 303rd District Court Dallas County, Texas Trial Court Cause No. DC-19-13738 DISSENTING OPINION

Opinion by Justice Schenck In this original proceeding, relato r Brenda L. Caddell challenges an order sustaining the ruling on her objection to the assignment of a vis iting judge in this Suit Affecting the Parent–Child Relationship (SAPCR). I dissent from the majority’s denial of relator’s petition because relator timely objected to the assignment of the visiting judge.
F ACTUAL AND P ROCEDURAL B ACKGROUND On April 28, 2019, relator, the paternal grandmother of the deceased Father’s children, filed the underlying SAPCR in Johnson County seeking access to her grandchildren. Thereafter, the case was transferred to Dalla s County and assigned to the 303rd District Court. On December 19, 2019, the trial court issued temporary–2– orders based on Mother and relator’s agr eement. The tempor ary orders divided possession time between Mother and relator if they lived within 100 miles of each other. Mother and the children subseque ntly moved to Maine, precluding relator from having access to her grandchildren. On March 17, 2020, relato r filed a motion to enforce temporary orders. Mother and the children eventually moved b ack to Texas, but Mother denied relator physical access to the children because of the COVID pandemic. The enforcement motion was initially set for hearing on De cember 21, 2020 before Judge Dennise Garcia, who was then the presiding judge of the 303rd District Court. 1 On December 9, 2020, the hearing was removed from the trial court’s December 21 docket due to a scheduling conflict. On January 12, 2021, Judge Car men Rivera-Worley, retired, 2 signed an “Agreed Order to Appear” in the SAPCR setting, per the parties’ agreement, February 3, 2021 as the date relator’s mo tion would be heard. The order did not identify the judge who would appear or preside over the February 3 hearing or indicate that Judge Rivera-Worley had been generally assigned to the 303rd District Court or this case in particular.

1 On January 1, 2021, Judge Garcia ceased being th e presiding judge of the 303rd District Court as she had been elected to serve as a justice on the Fifth Di strict Court of Appeals. On March 30, 2022, Judge Rhonda Hunter took the oath of office and became th e presiding judge of the 303rd District Court.
2 Judge Rivera-Worley was the presiding judge of th e 16th District Court in Denton County from 2003 until 2012.–3– On February 2, 2021, the court coordi nator sent an invitation via email to relator’s and Mother’s counsel to attend a Zoom meeting the following day with a visiting judge. On that same day, relator filed an objec tion to the assignment of a visiting judge. On February 3, Judge Rivera-Worley overruled relator’s objection as untimely, noting that she had already taken action in the case by signing the January 12, 2021 agreed order. Judge Rive ra-Worley then proceeded to hear the motion to enforce temporary orders. By email dated March 22, Judge RiveraWorley ruled on that motion as follows: Following a review of the pleadings, exhibits, testimony and argument of counsel, I find it in the best in terest of the children to deny the Grandmother/Petitioner’s Motion for Enforcement and for Sanctions. On April 12, 2021, relator filed he r first petition for writ of mandamus challenging Judge Rivera-Worley’s order overruling her objection to the assignment of a visiting judge. On August 4, 2021, this Court denied that petition on procedural grounds without prejudice to the refiling of same. In re Caddell , No. 05-21-00233- CV, 2021 WL 3412238, at *1 (Tex. App.—Dalla s Aug. 4, 2021, orig. proceeding) (mem. op.). In doing so, this Court noted: We have no authority to issue a writ of mandamus to a successor judge for a visiting judge’s ruling. See T EX

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. P. 7.2(b) (“If the case is an original proceeding under Rule 52, the court must abate the proceeding to allow the successor to reconsider the original party’s decision.”). Rule 7.2(b) would requi re us to give the successor judge an opportunity to reconsider the challenged order before we may consider relator’s request for manda mus relief. Neve rtheless, we note that our opinion does not preven t relator from refiling another enforcement action.–4– Id. at *1 n.1. On October 15, 2021, relator filed her second amended motion to enforce temporary orders in the district court. By that time, Judge Rhonda Hunter, the successor to Judge Garcia, ha d become the presiding judge of the 303rd District Court. A hearing on the amended motion was held on January 31, 2022, during which Judge Hunter considered arguments as to whether she had the authority to proceed to hear that motion based on this Court’s August 4, 2021 denial of the prior petition for writ of mandamus. She then ruled as follows: I am Judge Rhonda Hunter . . . . I was sworn in on March 30, 2021. The motion was served on Respondent because she agreed to service on January 12 of 2021. The Responde nt then appeared on February 3rd, 2021. The mandamus was an objection to the visiting Judge. The visiting Judge denied the objection to the visiting Judge and heard the underlying proceeding on February 3r d, 2021. Then the visiting Judge rendered on March 22nd of 2021. First of all, a footnote is dicta, but the footnote would require that I rule on the issue that was the subject of the mandamus, which is the objection to the visiting Judge. And this Court now rules that the objection to the visiting Judge, the denial and the denial of that objection by Judge Worley was prope r. The order rendered by the visiting Judge is the or der of the Court. That is all for the record. This original proceeding followed.
A VAILABILITY OF M ANDAMUS R ELIEF Entitlement to mandamus relief requires rela tor to show that the trial court has clearly abused its discretion and that re lator has no adequate appellate remedy. In–5– re Prudential Ins. Co. , 148 S.W.3d 124, 135–36 (Tex. 2004 ) (orig. proceeding). A judge has no discretion to deny a tim ely objection to a visiting judge. See Dunn v.
Street , 938 S.W.2d 33, 34 (Tex. 1997 ). If the assigned judg e refuses to remove himself or herself after a party timely file s an objection, that judge’s subsequent orders are void and the objecting party is entitle d to mandamus relief without a showing that he or she lacks an adequate remedy by appeal. Id. ; Flores v. Banner , 932 S.W.2d 500, 501 (Tex. 1996); In re Flores , 53 S.W.3d 428, 430 (Tex. App.— San Antonio 2001, orig. proceeding); Amateur Athletic Found. v. Hoffman , 893 S.W.2d 602, 603 (Tex. App.—Dallas 1994, orig. proceeding).
D ISCUSSION The presiding judge of an administrative judicial region is authorized to assign judges in the region to “try cases and dispose of accumulated business.” T EX

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. § 74.056(a). A judge sitting by order of assignment has “all the powers of the judge of the court to which he is assigned.” Id. § 74.059(a). The judges that may sit by assignment are specified by statute, and include active, retired, or senior judges. See id. § 74.054. Section 74.053 of the government code governs the ability of parties to make objections to the assi gnment of trial judges and the procedure for making such objections. See G OV ’ T § 74.053. Section 74.053 of the government code, entitled “Objection to Judge Assigned to a Trial Court,” states, in relevant part, as follows: (a) When a judge is assigned to a trial court under this chapter:–6– (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 timel y objection to the assignment, the judge shall not hear the case. Excep t 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 ea rlier. The presiding judge may extend the time to file an objection under this section on written motion by a party who demonstrates good cause. Id. § 74.053 (emphasis added). The statute requires an immediate objection to an assigned judge to prevent parties from a ttempting to “sample” the judge before objecting. Collins v. D.R. Horton-Texas Ltd. , 574 S.W.3d 39, 45 (Tex. App.— Houston [14th Dist.] 2018, pet. denied). Here, realtor claims the trial court abused its di scretion by sustaining the overruling of her objection to the visiting j udge and refusing to hear her enforcement motion because her objection on February 2 to the assignment was timely. It is undisputed that relator did not obj ect to the assignment of Judge RiveraWorley until February 2. The timeliness of relator’s objection hinges upon whether the January 12, 2021 “Agreed Or der to Appear” is a ruling on a first hearing, as it–7– appears Judge Rivera-Worley considered it to be, or assigned Judge Rivera-Worley to the case. The government code does not define th e word “hearing.” We are certainly cognizant of the most widely known and accepted concept, a relatively formal proceeding in which witnesses are heard and evidence presented. B LACK ’ S L AW D ICTIONARY 721 (6th ed. 1990). This definitio n appears to imply that physical presence of the parties is required. Perkins v. Groff , 936 S.W.2d 661, 665 (Tex. App.—Dallas 1996, writ denied). The word “hearing” has also been defined as an “opportunity to be heard or to pr esent one’s side of a case.” W EBSTER ’ S T HIRD N EW I NT ’ L D ICTIONARY 1044 (3rd ed. 1981). However, th is definition is broad enough to include written materials. Perkins , 936 S.W.2d at 665. As to whether the January 12 order is, in the first instance, a ruling on a first hearing triggering an obligation to object to the assignment of the visiting judge, I find this Court’s decisions in Lewis and Perkins to be instructive.
In Lewis , this Court rejected an argument that an objection was untimely when it was made after the court coordinator telephoned counsel to advise them that the case had been called for trial and that an assigned judge would hear the case. Lewis v. Leftwich , 775 S.W.2d 848–51 (Tex. App.—Da llas 1989, no writ). The Court acknowledged that Lewis had tendered his objection prior to appearing before the assigned judge and concluded that “the court coordinato r’s telephone call is without significance” in its analysis regarding timeliness. Id. at 849. The Court stated–8– that “[s]uch a telephone call simply advises the parties that a case is tentatively set for trial it is notice that a case is being ca lled for trial. It is not the same thing, however, as a case being ca lled to trial by a judge wh o has taken the bench.” Id. ; see also Pavecon, Inc. v. Liese , No. 05-01-01389-CV, 2002 WL 1895436, at *1 (Tex. App.—Dallas Aug. 19, 2002, no pet.) (mem. op.) (noting th at neither a docket call nor a trial court’s ministerial action in recessing a hearing to allow a party’s appearance is a “ruling” and stating that “[w]e do not believe that when the statute speaks of a ‘hearing,’ or when cases speak of a ‘ruling,’ they contemplate this kind of administrative synchronizati on of trial participants”).
In Perkins , this Court considered “whether an objection is timely within the meaning of section 74.053 if it is lodged af ter the assigned judge considers a party’s requests for relief and makes rulings in th e case, but does so without receiving oral argument from counsel while sitting on the bench in open cour t.” 936 S.W.2d at 664. There, Perkins lodged his objection to the assigned judge before the first hearing in open court, but after the assi gned judge had consider ed and ruled on two of Perkins’ motions. Id. at 663–64. This Court concluded “that section 74.053 requires an objection before the assi gned judge makes any ru lings in the case, even if not in open court.” Id. at 664. In so ruling, th is Court surveyed numerous cases and clarified its holding in Lewis

. Id. at 664–67. The Court held: [W]hen a party files a motion reques ting affirmative relief and the judge considers the merits of the argument s and rules on the matter, there has been a hearing within the meani ng of section 74.053. The statute–9– contemplates a presentation of argument accompanied by judicial examination and a ruling. To constitu te a “hearing,” oral argument is not necessary. Further, a “hearing” need not take place in a courtroom while the assigned judge sits on the be nch in the presence of counsel . . . . We consider this to be the ju st and reasonable result intended by the legislature when it enacted section 74.053. Id. at 666. Here, the “Agreed Order to Appear” is not a ruling on a motion requesting affirmative relief and relato r was never in a position to obj ect to it. Judge RiveraWorley simply signed the order that wa s tendered to the court as “agreed,” memorializing the parties’ purported agr eement with respect to the hearing on relator’s motion to enforce the temporary orders. In essence, this “order” was nothing more than notice of a subsequent hearing pursuant to an agreement of the parties, the type of ministerial act that does not trigger an obligation to object. See
Pavecon , 2002 WL 1895436, at *1; Lewis , 775 S.W.2d at 849. As to whether the order is an assignment of Judge Rivera–Wor ley to the case, nothing in the “agreed order” gives the parties notic e that Judge Rivera-Worley had been assigned to hear the case and there is no other indication of any other form of notice to trigger a waiver. Thus, I conclude the “Agreed Order to Appear ” is not a ruling on a first “hearing” or an assignment of Judge Rive ra-Worley to the case that triggered an obligation to object. Accordingly, the first notice of the assignment of Judge Rivera-Worley to the case occurred the day before the hearing on relator’s enforcement motion when the–10– court coordinator communicated with counsel via email that the hearing would be conducted via Zoom with a visiting judge. Relator objected to the assignment that same day and before appear ing before Judge Rivera-Wor ley. Thus, her objection was timely, as a matter of law. Lewis , 775 S.W.2d at 849; see also Flores , 932 S.W.2d at 501.
C ONCLUSION Because relator’s objection was timely, th e trial court abused its discretion in sustaining Judge Rivera-Worley’s ruling on the objection and refusing to consider realtor’s enforcement motion. Because the denial of a timely section 74.053 objection is a proper subject of mandamus, I dissent from the majority’s conclusion relator has failed to show she is entitled to the relief she seeks in this original proceeding.

220435DF.P05 /David J. Schenck / DAVID J. SCHENCK JUSTICE