Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Civil Litigation No. 07-03-0107-CV, 4/29/2003. Click here for the full text of this decision FACTS: In this original proceeding, the relators, Ronald J. Hettler, Robin Hettler and Cornwall Personal Insurance Agency Inc. F/D/B/A Hettler-Brenholtz Insurance, seek a writ of mandamus compelling respondent, Judge Kelly G. Moore, presiding judge of the 9th Administrative Judicial Region, to set a hearing on their motion to disqualify Judge Bradley S. Underwood, judge of the 364th District Court of Lubbock County. HOLDING: Dismissed for lack of jurisdiction. On March 22, 2002, pursuant to a jury verdict, Underwood entered a final judgment for real party in interest, William David Brenholtz, and against relators in litigation that arose from the breakup of their insurance agency. The relators filed petitions in bankruptcy, but the bankruptcy court later modified the stay afforded by 11 U.S.C. �362 to permit relators to appeal the state court judgment to this court. Relators filed a notice of appeal on Aug. 30, 2002. 11 U.S.C.A. �362. The relators filed a pro se motion for disqualification of judge in the 364th District Court on Nov. 15, 2002, asserting for the first time that Underwood was constitutionally disqualified to preside over the trial of the case. The merits of the motion will not be discussed here, as they are not relevant to the petition for writ of mandamus. On Dec. 11, 2002, Underwood, by letter and signed order, requested Moore to hear, or assign a judge to hear, relators’ motion for disqualification. On Dec. 16, 2002, apparently unaware that Underwood had taken that action, the relators filed a first petition for writ of mandamus with this court, requesting a writ issue ordering Underwood to rule on the disqualification motion. This court denied relators’ first petition for writ of mandamus on Dec. 17, 2002, because of their failure to comply with requirements of Texas Rule of Appellate Procedure 52.3. On that same date, Moore, by letter, advised the parties that he would not conduct a hearing or rule on the motion because “[T]he case is now on appeal. . ., and the issue of the trial judge’s disqualification has been raised in the Court of Appeals.” The relators, still proceeding pro se, then filed with the trial court a document entitled “defendant’s objection to ruling by presiding judge and motion to set hearing on motion for disqualification of judge.” Attached to the document was a certificate of service indicating that a copy was faxed to Moore. The document requested that Moore set a hearing on relators’ motion to disqualify Underwood. The relators, now represented by counsel, have filed a second petition in this court, complaining that Moore has not complied with his administrative obligation under Texas Rule of Civil Procedure 18a, and asking that the court issue a writ of mandamus directing him to set and hold a hearing on the motion to disqualify Underwood. The relators’ appeal of the trial court’s judgment also remains pending in this court. This court’s authority to grant original writs of mandamus is limited and defined in Texas Government Code �22.221. That section authorizes a court of appeals to issue a writ of mandamus in two types of cases: 1. in any case when necessary to enforce its jurisdiction; and 2. in cases in which relief is sought against a judge of a district or county court in the court of appeals district; or a judge of a district court who is acting as a magistrate at a court of inquiry under Texas Code of Criminal Procedure Chapter 52, in the court of appeals district The court finds that issuing a writ in this case is not necessary to enforce its jurisdiction. The relators seek relief against Moore in his capacity as the presiding judge of an administrative judicial region, not simply in his capacity as a district judge. A regional presiding judge is appointed by the governor with the advice and consent of the senate. Texas Government Code �74.005 (Vernon 1998). The qualifications and duties of a regional presiding judge are specified in the Government Code. They are distinct from those of a district judge, county judge or magistrate. Just as it was necessary for the Legislature in 1995 to give courts of appeals the specific power to issue writs of mandamus against district judges acting in the capacity of magistrate, the court finds that a specific grant of such authority would be required with respect to judges acting in the capacity of regional presiding judge. OPINION: Campbell, J.; Johnson, C.J., Reavis and Campbell, JJ.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.