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Click here for the full text of this decision FACTS:This appeal involves the custody of B.F.B. and S.F.B., the minor children of mother and murder victim Toy Bradshaw and father and convicted murderer Joe Bradshaw. Before Joe Bradshaw’s conviction, Elton Murphy, the children’s maternal grandfather, and Janice Murphy, the children’s maternal step-grandmother, filed suit seeking custody of the children. After the Murphys filed for custody, numerous other relatives filed petitions for custody, including Vickie Wommack, the children’s paternal aunt, and Danna Blount, the children’s maternal grandmother, as well as William and Mary Bradshaw, the children’s paternal grandparents. On May 12, 2006, the Murphys filed a motion to recuse the elected judge of the trial court. By order dated May 17, 2006, and filed June 1, 2006, John Ovard, presiding judge of the First Administrative Region, assigned Paul Banner, senior judge, to hear the motion to recuse. The Murphys did not object to the visiting judge hearing the case before the trial. On Jan. 19, 2007, Banner, a visiting judge, signed a final order appointing Elton Murphy and Vickie Wommack nonparent joint managing conservators and appointing as possessory conservators the following individuals: Joe Bradshaw, Janice Murphy, Mary Bradshaw, Michael Wommack, Danna Blount and Stephen Blount. The final order provided that the Murphys would have custody of the children until July 1, 2007, when custody would be permanently switched to the Wommacks. HOLDING:Reversed and remanded. The order provides the assignment is “for the purpose of the assigned judge hearing a Motion to Recuse” and cites “Rule 18a, Texas Rules of Civil Procedure” as authority. Rule 18a applies only to recusal or disqualification of judges. Further, the order provides that it “shall continue for such time as may be necessary for the assigned judge to hear and pass on such motion.” The order must be read as a whole, and form should not trump substance. The substance of the order of assignment indisputably limits the visiting judge’s authority to the motion to recuse. The visiting judge lacked authority to hear the case on its merits. The Wommacks cite the Dallas Court of Appeals’ 2006 decision in Carmody v. State Farm Lloyds in support of their argument that the visiting judge was authorized to hear the case. That case arose in Collin County, and the judge who presided over the hearings was another sitting district judge in Collin County having concurrent jurisdiction. Carmody is clearly distinguishable from this case. As noted by Carmody, one district judge may sit for another if both serve in overlapping judicial districts. Because the visiting judge was not a sitting judge in Bowie County, the reasoning in Carmody does not apply to this case. The order did not grant the visiting judge authority to hear the case. A judgment of a court which has no jurisdiction over the subject matter is void. The visiting judge lacked authority under the assignment to preside over the trial in this case. The final order in this case is void. Because the final order is void, the Murphys were not required to object. OPINION:Morriss, J.; Morriss, C.J., Carter and Moseley, J.J.

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