In Re the State of Texas Ex Rel. Brian W. Wice, Relator

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-93,089-01

In re STATE OF TEXAS, ex rel. BRIAN W. WICE, relator

ON APPLICATION FOR A WRIT OF MANDAMUS

AGAINST THE FIRST COURT OF APPEALS

RICHARDSON, J., delivered the opinion of the Court in which HERVEY, NEWELL,

WALKER, SLAUGHTER, and MCCLURE, JJ., joined. SLAUGHTER, J., filed a concurring opinion

in which RICHARDSON, NEWELL, and MCCLURE, JJ., joined. KELLER, P.J., filed a dissenting

opinion in which KEEL, J., joined. YEARY, J., filed a dissenting opinion.

OPINION

Judge George Gallagher, elected judge for the 396th District Court in the Eighth

Administrative Judicial Region, was specifically assigned by Presiding Judge Mary

Murphy of the First Administrative Judicial Region to preside over State v. Paxton in the

416th District Court in the First Administrative Judicial Region in July of 2015. The issue

before this Court, on mandamus, is whether Judge Gallagher had the constitutional and

statutory authority to preside over State v. Paxton when he granted a change of venue to

Harris County in April of 2017. 1 We hold that he did, regardless of any other assignment

0F

orders that were issued by Presiding Judge David Evans. We, therefore, conditionally grant

the State’s petition for writ of mandamus.

I. Background

A. How Judge Gallagher Became the Judge Presiding Over This Case

In 2015, a Collin County Grand Jury returned three felony indictments against the

Real-Party-in-Interest, Warren Kenneth Paxton, Jr. These cases were assigned to the 416th

District Court of Collin County. The 416th District Court is in the First Administrative

Judicial Region and Judge Chris Oldner was the judge presiding at that time. Judge Oldner

voluntarily recused himself from the case and “referred” it to Presiding Judge Mary

Murphy of the First Administrative Judicial Region. 2 Presiding Judge Murphy requested

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1

In his dissent, Judge Yeary claims the “real” issue is whether the Harris County District

Court judges had “any authority at all to send the case back to Collin County. The Court’s analysis

misses this critical point.” J. Yeary’s Dissent, at *1. There was only one issue raised by Real-Party-

in-Interest to void or reverse Judge Gallagher’s decision. Specifically, in April of 2017, Real-

Party-in-Interest claimed Judge Gallagher had no authority to preside over the case because the

orders from the regional presiding judge of the Eighth Administrative Judicial Region had expired.

That sole issue was raised in motions before two district judges in Harris County, the First Court

of Appeals, and on mandamus before our Court. Any other grounds are not mentioned in the

record. What either Judges Johnson or Luong might have been thinking is pure speculation.

Franklin v. State, 693 S.W.2d 420, 431 (Tex. Crim. App. 1985) (disallowing consideration of

assertions not supported by the record on appeal). Moreover, those speculative reasons could only

have been raised on direct appeal, not via the claim that Judge Gallagher had no authority to act.

See e.g., Gregory v. State, 37 S.W. 752, 752 (Tex. Crim. App. 1896).

2

App. to Real-Party-in-Interest Paxton’s Response to Relator’s Petition for Writ of

Mandamus [hereinafter Paxton App.], at *006 (“Voluntary Recusal”); TEX. R. CIV. P. 18a(f)(1)(B),

18b; see Arnold v. State, 853 S.W.2d 543, 544 (Tex. Crim. App. 1993) (affirming DeBlanc v. State,

799 S.W.2d 701 (Tex. Crim. App. 1990)’s implicit holding that TEX R. CIV. P. 18a applies to

criminal cases).

2

and assigned Judge Gallagher, an elected district court judge sitting outside the First

Administrative Judicial Region, to preside over this case.

At the heart of this dispute are three “assignment orders” issued by two regional

presiding judges (Presiding Judges David Evans and Mary Murphy) from different

administrative judicial regions. We will refer to them in order as Assignment Order I by

Presiding Judge Evans signed on July 28, 2015; Assignment Order II by Presiding Judge

Murphy signed on July 29, 2015; and Assignment Order III by Judge Evans signed on

December 21, 2015.

3

Assignment Order I 2F

On July 28, 2015, Presiding Judge David Evans of the Eighth Administrative

Judicial Region issued the following order:

Pursuant to Section 74.056, Texas Government Code, I assign the

Honorable George Gallagher, District Judge of the 396th Court to the

1st Administrative Judicial Region for reassignment by the Presiding

Judge thereof.

“Presiding Judge” is the statutory title of a judge charged with overseeing one of the eleven

administrative judicial regions in Texas. TEX. GOV’T CODE § 74.041(2). Except when referring to

them by title, we will refer to them as “regional presiding judges” for the sake of clarity in this

opinion.

3

Paxton App., at *006 (“The State of Texas Eighth Administrative Judicial Region Order

of Assignment by the Presiding Judge, July 28, 2015” [hereinafter Assignment Order I]). Though

the title uses the term “assignment,” we note that it merely assigns an active district judge to

another administrative judicial region for “reassignment.” Rather than actually assigning Judge

Gallagher to a specific court or case, it generally and effectively assigns the judge to another

region.

3

The judge is assigned for a period of 157 days, beginning July 28th,

2015. If the judge begins a trial on the merits during the period of this

assignment, the assignment continues in such case until plenary jurisdiction

has expired or the undersigned Presiding Judge has terminated this

assignment in writing, whichever comes first. 4 3F

This order purports to assign Judge Gallagher to the First Administrative

Judicial Region, so Judge Murphy could then “reassign” him to any court or case

within the First Region; however, this assignment order expired on December 31,

2015. 5

4F

6

Assignment Order II 5F

The next day, on July 29, 2015, Presiding Judge Murphy, pursuant to Section

74.056, Texas Government Code 7 (as noted on the order), assigned Judge Gallagher to the

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416th District Court of Collin County for the case against the Real-Party-in-Interest:

4

Assignment Order I.

5

We note, as an elected judge, Judge Gallagher continued to preside over his own court,

the 396th District Court in Tarrant County, in the Eighth Judicial Administrative Region during

the entire period of this case.

6

Paxton App., at *007 (“The State of Texas First Administrative Judicial Region Order of

Assignment by the Presiding Judge, July 29, 2015” [hereinafter Assignment Order II]).

7

As relevant in Section 74.056 of the Texas Government Code:

ASSIGNMENT BY PRESIDING JUDGE

(a) A presiding judge from time to time shall assign the judges of the administrative region

to hold special or regular terms of court in any county of the administrative region to

try cases and dispose of accumulated business.

(b) The presiding judge of one administrative region may request the presiding judge of

another administrative region to furnish judges to aid in the disposition of litigation

pending in a county in the administrative region of the presiding judge who makes the

request.

4

This assignment is for the cause(s) and style(s) as stated in the

conditions of assignment from this date until plenary power has expired or

the undersigned Presiding Judge has terminated this assignment in writing,

whichever occurs first.

CONDITIONS OF ASSIGNMENT

NOS. 416-81913-2015, 416-81914-2015, 116-81915-2015; State of

Texas v. Warren Kenneth Paxton, Jr.

In addition, whenever the assigned Judge is present in the county of

assignment for a hearing in the above cause(s), the Judge is also assigned and

empowered to hear, at that time, any other matters presented for hearing. 8 7F

This was the only case Judge Murphy assigned Judge Gallagher to preside over in

the First Administrative Judicial Region during the dates in question. Judge Gallagher was

still presiding over matters on the case through April of 2017. Furthermore, as far as the

record shows, Judge Gallagher never exercised his statutory right to object to his

assignment to the case. 9 Unlike Presiding Judge Evans’s orders, Presiding Judge Murphy’s

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order did not have an expiration date, nor did she ever terminate Judge Gallagher’s

assignment.

8

Assignment Order II.

9

See TEX. GOV’T CODE § 74.060(a) (“An active judge may not, without the judge's consent,

be assigned out of the judge's district or county for more than 10 calendar days in a year.”).

5

10

Assignment Order III 9F

Pre-trial matters continued through 2015. On December 21, 2015, Presiding Judge

Evans extended Judge Gallagher’s assignment to the First Administrative Judicial Region.

This order stated:

[District Judge Gallagher] is assigned for a period of 366 days,

beginning January 1, 2016. If the judge begins a trial on the merits during the

period of this assignment, the assignment continues in such case until plenary

jurisdiction has expired or the undersigned Presiding Judge has terminated

this assignment in writing, whichever occurs first. 11 10F

There was no express language in Assignment Order III extending Judge

Gallagher’s assignment to the First Administrative Judicial Region after January 1, 2017,

absent the commencement of trial. 12 Specifically, it is Judge Evans’s second order

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(Assignment Order III) that both the trial court and court of appeals relied upon to

invalidate Judge Gallagher’s order changing venue to Harris County, because it conflicted

with Judge Murphy’s assignment order. Assignment Order III expired on January 1, 2017

and no subsequent order with a new expiration date was ever issued.

10

Paxton App., at *008 (“The State of Texas 8th Administrative Judicial Region Order of

Assignment by the Presiding Judge, December 21, 2015” [hereinafter Assignment Order III]).

11

Assignment Order III.

12

We note that the emails between the administrative assistants for the First and Eighth

Presiding Judges demonstrate on their face that the Presiding Judge Evans of Judge Gallagher’s

home region intended to keep Judge Gallagher assigned to the First Administrative Judicial Region

past the January 2017 expiration of Assignment Order III. See App. to State’s Petition for Writ of

Mandamus, at Tab 31. Skepticism about the formality requirements of an assignment order have

been previously expressed. See Ex parte Reed, No. WR-50,961-10, 2019 WL 6108568, at *1–2

(Tex. Crim. App. Nov. 15, 2019) (Keasler J., concurring) (reasoning against reading the four

corners of an assignment order as fully controlling).

6

B. How the Change in Venue to Harris County Came About

Pre-trial matters continued past the 366 days stated in Assignment Order III. On

February 9, 2017, the State filed a motion to change venue. Judge Gallagher granted the

State’s motion on March 29, 2017 without deciding the new venue. Real-Party-in-Interest

timely objected to the venue transfer, which was overruled by Judge Gallagher. On March

30, 2017, Judge Gallagher sent an email to the parties offering them options to consider for

the new venue:

The options that I am making known regarding change of venue are as

follows:

Option 1. Article 31.02 of CCP [the Code of Criminal Procedure] mandates

that I transfer to [an] adjoining district. If I follow the statute, I will transfer

to Dallas County. There is a ceremonial courtroom that I believe is located

in their civil courts building that may be available.

Option 2. I would transfer to Harris County. It is my understanding that there

is a ceremonial courtroom in the criminal building that may be available.

Additionally, I recognize that the majority of the lawyers are from Harris

County which I would hope assist you.

Option 3. I would transfer to Tarrant County. In our building, we have four

vacant courtrooms as a result of our civil courts moving to a new

building. . . . The remaining courtrooms would be set aside for the state and

the defense respectively as your “war rooms.” The state would have sole

access to their room and the defense would have sole access to their room.

This could allow everyone to have a place to work while the trial was being

conducted.

If any of you have other options, I am open to suggestion.

***

If we do an option other than No. 1, it will require it be done by agreement.

I would make sure that the record reflected that, if agreed to transfer to a non-

7

adjoining county, it would NOT constitute a waiver of the underlying

objections to granting of the motion for change of venue. 13 12F

On April 10, 2017, Judge Gallagher conducted a hearing on where the new venue should

be. During that hearing, both parties agreed to transfer the case to Harris County—a non-

contiguous county. 14 On April 11, 2017, Judge Gallagher issued a written order

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designating the new venue to be Harris County. 15 14F

On May 10, 2017, Real-Party-in-Interest filed an objection to all rulings made by

Judge Gallagher after January 1, 2017, and filed a corresponding motion to return the case

to the regional presiding judge covering Collin County (Presiding Judge Murphy). Real-

Party-in-Interest argued that Judge Gallagher’s authority lapsed when Assignment Order

III expired at 12:00 a.m. on January 2, 2017.

On May 15, 2017, Real-Party-in-Interest filed a Petition for Writ of Mandamus in

the Fifth Court of Appeals challenging Judge Gallagher’s continued involvement in the

case. The Fifth Court of Appeals found Collin County lost jurisdiction immediately after

13

See Paxton App., at *082.

14

See Paxton App., at *080–081 (Telephonic Hearing on State’s Motion for Change of

Venue, (4 RR 8)). We note that even though the Real-Party-in-Interest agreed to the transfer to

Harris County, he preserved his objections to the change in venue.

15

Although Article 31.02 of the Code of Criminal Procedure requires the new venue to be

an “adjoining district,” there is no dispute that Judge Gallagher had authority to choose Harris

County. As shown above, the parties consented to it after Judge Gallagher warned them about the

requisites of Article 31.02. Ex parte Watson, 601 S.W.2d 350, 351 (Tex. Crim. App. 1980)

(“Improper venue, unlike jurisdiction, may be waived by the defendant’s failure to object at

trial. . . . Unlike jurisdiction, venue may be acquired by consent.”). Thus, Judge Gallagher had

discretion, as part of being a constitutionally elected judge, to choose Harris County.

8

Judge Gallagher signed the order changing venue to Harris County on April 11, 2017. 16 15F

Any rulings made after that April 11, 2017 venue transfer order were void and the Collin

County District Clerk was to transfer the case files to Harris County. 17 On June 9, 2017,

16F

the case was transferred to Harris County. 18 17F

C. The Dispute Over Where The Case Belongs and to Which Judge Continued

Because he lacked the consent of all parties to go with the case, Judge Gallagher did

not continue to preside over the case after the change of venue. 19 Thus, upon transfer to

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Harris County, the case was assigned to Judge Robert Johnson of the 177th District Court

of Harris County. 20 On July 18, 2019, over two years later, Real-Party-in-Interest filed a

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motion “to set aside change of venue as void and return cases to Collin County, Texas.” 21 20F

A year later on June 25, 2020, Judge Johnson granted Real-Party-in-Interest’s motion to

set aside Judge Gallagher’s April 11, 2017 venue transfer order as void and ordered the

case be returned to Collin County. 22 21F

16

In re Paxton, Nos. 05-17-00507-CV, 05-17-00508-CV, & 05-17-00509-CV, 2017 WL

2334242, at *4 (Tex. App—Dallas May 30, 2017, orig. proceeding).

17

Id. at *5; TEX. CODE CRIM. PROC. art. 31.05.

18

In re State ex rel. Wice, 629 S.W.3d 715, 719–20 (Tex. App—Houston [1st Dist.] 2021,

orig. proceeding).

19

TEX. CODE CRIM. PROC. art. 31.09(a); In re Paxton, 2017 WL 2334242, at *5.

20

Id.

21

Paxton App., at *269.

22

Id. at *152.

9

The State filed a petition for writ of mandamus in the First Court of Appeals asking

to vacate Judge Johnson’s June 25, 2020 order returning the case to Collin County.

However, on July 6, 2020, Judge Johnson voluntarily recused himself and referred the case

to Presiding Judge Susan Brown of the Eleventh Administrative Judicial Region for

reassignment. 23 The case was then reassigned to Judge Jason Luong of the 185th District

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Court in Harris County. 24 The First Court of Appeals abated the matter to allow Judge

23F

Luong to reconsider Judge Johnson’s order returning the case to Collin County. 25 On 24F

October 23, 2020, Judge Luong held that he lacked jurisdiction to reconsider the matter

since the case was transferred back to Collin County immediately after Judge Johnson

23

See Russell v. Harris Cty., 500 F. Supp. 3d 577 (S.D. Tex. 2020). Judge Johnson

subsequently recused himself. See Paxton App., at *153–58.

24

In re State ex rel. Wice, 629 S.W.3d at 718.

25

App. to State’s Petition for Writ of Mandamus, at Tab 15 (“Order of Abatement”).

10

signed the June 25, 2020 order. 26 Judge Luong alternatively held if in fact he had

25F

jurisdiction to consider the underlying merits, he would void the order transferring venue. 27 26F

D. The First Court of Appeals’s Decision—Judge Gallagher’s Authority Had

“Expired”

On May 27, 2021, a divided First Court of Appeals denied the State’s petition for

writ of mandamus. 28 In their analysis, the lower appellate court applied specific-controls-

27F

over-general and earlier-controls-over-later-terms principles to Assignment Orders I, II,

and III. The court of appeals found that Judge Gallagher’s authority under Assignment

Order I (extended by Assignment Order III) had expired when Judge Gallagher entered the

April 11, 2017 venue transfer order moving the case to Harris County. Per the First Court

of Appeals, the later, general Assignment Order II to the case was controlled by the earlier,

26

App. to State’s Petition for Writ of Mandamus, at Tab 16 (“Order on Reconsideration of

Prior Order Vacating Order of Transfer to Harris County, Texas”). Specifically, Judge Luong’s

order stated:

Accordingly, this Court is without jurisdiction to review the challenged

order or any pending motions in these cases.

In the alternative, if it is determined by the First Court of Appeals, or by any

other or higher appellate court that the 185th Judicial District Court does have

jurisdiction to review and reconsider the June 25, 2020 Order, it is the Court’s

finding that Judge Gallagher was without jurisdiction to enter the March 30, 2017

order, that the March 30 2017 order and related venue orders should be set aside,

and that the Harris County District Clerk’s file should be transferred to the Collin

County District Clerk.

Id.

27

Id.

28

In re State ex rel. Wice, 629 S.W.3d at 718.

11

specific Assignment Order I to the region. But Justice Goodman dissented and argued that

Article V, Section 11 of the Texas Constitution provided Judge Gallagher with the

authority to issue the venue transfer order, after his assignment order to the First

Administrative Judicial Region expired. 29 Justice Goodman noted in his concurring and

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dissenting opinion:

“As for the majority's contention that applying Article V, Section 11 in this

instance would undermine the Court Administration Act, the majority puts

the cart before the horse. Our Constitution is supreme. If its provisions

undermine a statute, it is the statute in this case that must give way. Courts

have repeatedly said so with respect to Article V, Section 11 of our

Constitution.” 30 29F

On September 21, 2021, the First Court of Appeals denied en banc

reconsideration. 31 Justice Guerra wrote in dissent to the denial of en banc reconsideration

30F

arguing the opposite. Justice Guerra reasoned, that Assignment Order I (the July 28, 2015

order assigning Judge Gallagher to the First Administrative Judicial Region) was the actual

“general” order and Assignment Order II assigning Judge Gallagher to the Real-Party-in-

Interest’s case was the actual “specific” order. Hence, Judge Gallagher was authorized to

29

Id. at 728–31 (Goodman, J., concurring & dissenting).

30

Id. at 731.

31

In re State ex rel. Wice, 634 S.W.3d 370, 370 (Tex. App—Houston [1st Dist.] 2021, orig.

proceeding) (mem. op.).

We note that the assignments of elected, visiting, and retired judges are a routine practice

across the State, and the resolution of this original proceeding is likely to guide the interpretation

of assignment orders.

12

preside over the case until its conclusion. 32 In short, Judge Guerra opined that the order

31F

signed by Presiding Judge Murphy of the First Administrative Judicial Region should carry

the day: “By using the incorrect labels to interpret the assignment orders, the majority

opinion renders the specific assignment meaningless.” 33 32F

II. The Issue Before This Court

The State then filed this petition for writ of mandamus. In this second original

proceeding, the State seeks to compel the trial court (Judge Johnson presiding initially

followed by Judge Luong) to vacate its order voiding Judge Gallagher’s order transferring

venue to Harris County returning the felony prosecutions of the Real-Party-in-Interest back

to Collin County.

The question now before this Court begins with whether Judge Johnson and Judge

Luong had the authority to void Judge Gallagher’s change of venue order. The answer to

this question will depend on whether Judge Gallagher had the authority to issue the change

of venue. 34 As we stated before, this is the only issue briefed, argued, and presented to all

33F

the courts involved in this matter. The act of voiding Judge Gallagher’s change of venue is

32

Id. at 371–75 (Guerra, J., dissenting).

33

Id. at 371–74.

34

We only deal with the authority to make the change of venue—not the place of venue.

The latter question can only be appropriately addressed on direct appeal. See e.g., Gregory v. State,

37 S.W. 752, 752 (Tex. Crim. App. 1896) (finding that changes of venue based on the State’s

motion that “existing combinations and influences, exerted in favor of the defendant [would]

prevent a trial alike fair and impartial to the state and the defendant” is discretionary and “cannot

be revised by this court unless it is established beyond any question that the discretion of the court

has been abused.”).

13

only valid if Judge Gallagher acted outside his authority. Otherwise, the district judges of

Harris County will have effectively negated another district judge’s constitutional

authority. Thus, the legal issues before this Court are best summarized in three parts:

Since the Texas Constitution gives state district court judges statewide

authority and because there appears to be a clear distinction drawn between

visiting judges and active/elected judges in Chapter 74:

(1) Does Chapter 74 require an active (currently elected) district judge to

obtain the permission of the presiding judge of his/her administrative

judicial region to “visit” in a region other than their own?

(2) If so, does that judge need to obtain an “order of assignment” from

the presiding judge of his own administrative judicial region?

(3) And when there are conflicting assignment orders between the

assigned judge’s home region and the assigned region, which one

prevails?

III. Standard of Review

When a court of appeals denies mandamus relief against a trial court, we review

whether relator was entitled to relief against the trial court de novo. 35 “A writ of mandamus

34F

is an extraordinary remedy that compels a respondent to perform some ministerial act.” 35F

36

To be entitled to mandamus relief, the relator must show there is no adequate

remedy in law and that the sought-after act is ministerial in nature. 37 The ministerial in

36F

nature prong “is satisfied if the relator can show he has a clear right to the relief sought—

35

In re State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013) (orig.

proceeding).

36

Smith v. Flack, 728 S.W.2d 784, 792 (Tex. Crim. App. 1987); see TEX. CONST. art. V, §

5(c).

37

In re State ex rel. Weeks, 391 S.W.3d at 122.

14

that is to say, when the facts and circumstances dictate but one rational decision under

unequivocal, well-settled (i.e., from extant statutory, constitutional, or case law sources),

and clearly controlling legal principles.” 38 A clear right to the relief sought exists “[w]hen

37F

a trial court acts beyond the scope of its lawful authority.” 39 Additionally, “an issue of first

38F

impression can qualify for mandamus relief when the principle of law is so plainly

prescribed as to be free from doubt.” 40 “[I]f the terms of a statute are clear, the Court can

39F

address its application.” 4140F

The remedy for an improper venue change on any basis other than lack of authority

or jurisdiction is direct appeal after a trial. Changes of venue protect a criminal defendant’s

right to a fair trial. Thus, absent a void order, appellate courts will only intervene if the

defendant did not receive a fair trial in the new venue. Since the Code of Criminal

Procedure leaves it up to the trial judge to be satisfied that a fair trial cannot be had in the

originating county, we have concluded “it would be difficult to envisage a state of facts by

which this court would be warranted in finding that an abuse of discretion occurred.” 42 41F

38

In re State ex rel. Young v. Sixth Jud. Dist. Ct. App., 236 S.W.3d 207, 210 (Tex. Crim.

App. 2007) (orig. proceeding); In re Meza, 611 S.W.3d 383, 388 (Tex. Crim. App. 2020) (orig.

proceeding).

39

In re City of Lubbock, No. WR-93,137-01, 2023 WL 1807149, at *5 (Tex. Crim. App.

Feb. 8, 2023) (orig. proceeding) (citing In re State ex rel. Ogg, 618 S.W.3d 361, 365 (Tex. Crim.

App. 2021) (orig. proceeding)).

40

In re State ex rel. Wice, 581 S.W.3d 189, 194 (Tex. Crim. App. 2018) (orig. proceeding);

In re State ex rel. Weeks, 391 S.W.3d at 122.

41

In re State ex rel. Wice, 581 S.W.3d at 194.

42

Cook v. State, 667 S.W.2d 520, 523 (Tex. Crim. App. 1984) (quoting Spriggs v. State,

289 S.W.2d 272, 273 (Tex. Crim. App. 1956)); Gregory v. State, 37 S.W. 752, 752 (Tex. Crim.

15

IV. The State’s Raised Procedural Grounds

Before reaching the merits, the State argues that it wins because of two procedural

reasons. First, the State contends that the Real-Party-in-Interest failed to timely object to

Judge Gallagher’s authority to preside over the case. Second, the State argues that the “law

of the case” doctrine compels a favorable result. We disagree with the State on both

arguments.

A. Objection Timeliness

First, the State contends that the Real-Party-in-Interest failed to timely object that

Judge Gallagher lacked authority to rule on the change of venue motion. 43 As a result, the

42F

Real-Party-in-Interest forfeited its right to object on this issue.

App. 1896) (finding that changes of venue based on the State’s motion that “existing combinations

and influences, exerted in favor of the defendant [would] prevent a trial alike fair and impartial to

the state and the defendant” is discretionary and “cannot be revised by this court unless it is

established beyond any question that the discretion of the court has been abused.”).

43

In Texas, courts have jurisdiction—the power over the subject matter and person, while

judges have authority—the power to preside over a case. See Davis v. State, 956 S.W.2d 555, 557–

60 (Tex. Crim. App. 1997) (“While our case law has called the authority of the judge to preside a

jurisdictional issue, we now disavow that characterization, because as we have explained,

jurisdiction or judicial power is vested in courts, not individuals.”); see also Lackey v. State, 364

S.W.3d 837, 844–48 (Tex. Crim. App. 2012) (explaining that Appellant properly preserved his

objection to the lack of authority of an appointed municipal court judge).

The rulings of a judge who lacks authority may be declared void or voidable depending

on the underlying reason for their lack of authority. If a judge lacks the constitutional and statutory

qualifications to be a judge, or if the judge is constitutionally or statutorily disqualified from

hearing a case, then the underlying proceedings are deemed void. Davis, 956 S.W.2d at 559. It is

as if the proceedings never occurred—the actions of the judge are a nullity. However, if the reason

for the lack of judicial authority is a violation of statutory procedure, then the underlying

proceedings are deemed voidable. Id. An objection is required for an appellate court to review a

voidable proceeding. Id. (citing Miller v. State, 866 S.W.2d 243, 245–46 (Tex. Crim. App. 1993)).

Thus, the timeline of an objection is relevant for a voidable proceeding.

16

The State argues that the Real-Party-in-Interest forfeited his right to object that

Judge Gallagher lacked authority because the Real-Party-in-Interest had notice of

Assignment Order III prior to Judge Gallagher granting a change of venue. The State points

to an April 25, 2017 letter from Presiding Judge Murphy to the Real-Party-in-Interest’s

counsel, which stated in part:

Documents were delivered to you November 5, 2015 in response to

your prior requests for information regarding Judge Gallagher’s assignment

to our region. Attached are additional copies of the documents we have that

are responsive to your current request. 44 43F

However, the December 21, 2015 Assignment Order III had not yet been made when the

documents were delivered to the Real-Party-in-Interest on November 5, 2015.

There is nothing in the record that proves that the Real-Party-in-Interest had notice

of the December 21, 2015 Assignment Order III before April 25, 2017. Subsequently, on

May 10, 2017, the Real-Party-in-Interest filed the underlying “Paxton’s Objection to

Rulings Made by Judge Sitting by Expired Assignment and Motion to Return Case to

Presiding Judge of the 416th District Court.” 45 Though the record is incomplete on this

44F

point, we will assume that the objection to Judge Gallagher’s authority was timely.

The challenged Assignment Order III (containing the latest expiration date) in the instant

case could make the underlying proceedings voidable because it does not deal with Judge

Gallagher’s constitutional or statutory qualifications to be a judge. Rather, the case deals with a

potentially voidable venue transfer order because Judge Gallagher may have lacked a proper

procedural mechanism (an unexpired order assigning him to the region) to sit in Collin County

when he granted the venue transfer motion.

44

App. to State’s Petition for Writ of Mandamus, at Tab 29.

45

Paxton App., at *138–43; see App. to State’s Petition for Writ of Mandamus, at Tab 30.

17

B. “Law of the Case” Doctrine

Second, the State also contends the “law of the case” doctrine requires treating the

April 11, 2017 change of venue to Harris County as a valid order, because the Fifth Court

of Appeals voided Judge Gallagher’s rulings after he signed the venue transfer order. The

Fifth Court of Appeals voided those orders pursuant to the Texas Code of Criminal

Procedure because the Real-Party-in-Interest objected to Judge Gallagher continuing to

preside over his case once it was transferred to Harris County. 46 45F

However, the Fifth Court of Appeals opinion did not answer the question as to

whether Judge Gallagher’s rulings were void because Assignment Order III expired. We

decline to apply the “law of the case” doctrine when the appellate court did not address the

underlying question regarding this petition for writ of mandamus—whether Judge

Gallagher had authority to grant the change of venue to Harris County on April 11, 2017.

V. The Law Granting Authority to Judges

Texas judges primarily derive their authority to preside as judges from two main

sources: the Texas Constitution and a collective scheme of statutes known as the Court

Administration Act. 47 Now codified as Chapters 74 and 75 of the Texas Government Code,

46F

the Court Administration Act created additional categories of judges and statutory avenues

to keep the judicial system functioning efficiently by means of judicial assignment to cases

46

See TEX. CODE CRIM. PROC arts. 31.05, 31.09.

47

TEX. CONST. art. V; TEX. GOV’T CODE, chapters 74, 75.

18

and courts. Texas created judicial regions in 1927 for this purpose. 48 Each county falls

47F

under one of the eleven administrative judicial regions in Texas, with each region being

headed by a regional presiding judge. 49 The presiding judge of the region facilitates docket

48F

management within his region. 50 A regional presiding judge may assign an active district

49F

judge to preside over a specific case in his region or to sit in a court and hear all matters. 51

50F

Thus, when a district judge is disqualified or recused, the regional presiding judge of that

region has the authority to assign the case to themselves or another judge. 52 51F

The Texas Constitution and the Court Administration Act, however, apply differently

to the different categories of judges. Thus, to examine how elected judges, such as Judge

Gallagher, are lawfully empowered with authority, we first provide some needed context.

A. Types of Judges in Texas

The Court Administration Act provides four categories of judges—active, retired,

former, and senior.

• “Active Judge” means a current judicial officeholder.

• “Former Judge” means a person who served as an active judge in a

district . . . but who is not a retired judge.

48

See Ex parte Holmes, 754 S.W.2d 676, 679 (Tex. Crim. App. 1988); Eucaline Medicine

Co. v. Standard Inv. Co., 25 S.W.2d 259 (Tex. Civ. App.—Dallas 1930, writ ref’d).

49

TEX. GOV’T CODE § 74.042; see TEX. GOV’T CODE §§ 74.046, 74.047.

50

See TEX. GOV’T CODE §§ 74.046, 74.047.

51

See TEX. CONST. art. V, § 11; TEX. GOV’T CODE §§ 74.052(a), 74.056(a)–(b).

52

TEX. GOV’T CODE § 74.056(a); TEX. GOV’T CODE § 74.047; TEX. R. CIV. P. 18a, 18b;

see De Leon v. Aguilar, 127 S.W.3d 1, 5 (Tex. Crim. App. 2004) (affirming Arnold v. State, 853

S.W.2d 543, 544 (Tex. Crim. App. 1993) in holding that TEX. R. CIV. P. 18a and 18b apply in

criminal cases).

19

• “Retired Judge” means a retiree; or a person who served as an active judge

for at least 96 months . . . and has retired under the Texas County and

District Retirement System.

• “Senior Judge” means a retired judge who has elected to be a judicial officer

under Section 75.001. 53

52F

B. Non-Active District Judges

As creations of statute, the authority to sit as a retired, former, or senior judge (also

referred to as “visiting” judges) emanates from Chapters 74 and 75, not from the Texas

Constitution. In contrast, elected (or “active”) district court judges derive their statewide

authority from both the Texas Constitution and/or Chapter 74, but not from Chapter 75.

The categories and rules for “non-active visiting judges” of this the State fall under these

two chapters and not the Constitution, because they no longer hold elected office.

C. Active District Judges

Elected district court judges first derive their authority from the Texas Constitution.

Under Article V, Section 12, elected district judges are granted state-wide authority: “All

judges of courts of this State, by virtue of their office, are conservators of the peace

throughout the State.” 54 Second and supplemental to their constitutional authority, they

53F

53

TEX. GOV’T CODE § 74.041.

54

TEX. CONST. art V, § 12(a). This express language extends back to the days of the

Republic of Texas nearly unchanged. REPUB. TEX. CONST. art. IV, § 4, reprinted in 1 H.P.N.

GAMMEL, THE LAWS OF TEXAS 1822–1897, at 1074 (Austin, Gammel Book Co. 1898) (“The

judges, by virtue of their offices, shall be conservators of the peace, throughout the republic.”).

This authority applies to the charging of an offense, by indictment or by information. Texas Code

of Criminal Procedure Article 1.23 further echoes that all “judges of the District Courts, shall, by

virtue of their offices, be conservators of the peace throughout the State.” In addition to

prosecutions, the Code of Criminal Procedure provision applies to writs and process. There are

additional sources of an elected district judge’s authority to act outside his home court. For

example, district judges may sign warrants statewide.

20

may also be assigned to preside in any of eleven Administrative Judicial Regions in the

State including their own region, by the presiding judge of one of those regions as found

in Chapter 74 of the Texas Government Code. 55 54F

D. The Authority For an Active District Judge to Preside in a Foreign Region

1. Authority under the Constitution

As “conservators of the peace throughout the State,” Article V, Section 11 of the

Texas Constitution empowers elected (active) district judges to preside in any district of

the State when requested by one with the proper authority. Section 11 is specifically titled

“DISQUALIFICATION OF JUDGES; EXCHANGE OF DISTRICTS; HOLDING

COURT FOR OTHER JUDGES.” 56 The provision in question fully states:

55F

And the District Judges may exchange districts, or hold courts for

each other when they may deem it expedient, and shall do so when required

by law. 5756F

While it is certainly possible to interpret the “exchange [of] districts” phrase as an

even swap, the phrase in the constitution “or to hold courts for each other” does not require

it. The title of the section emphasizes them as separate alternatives to each other. Moreover,

55

Chapter 75 also applies to assignments of “visiting judges.” But that Chapter only applies

to “former” and “retired” judges as defined in Chapter 74.041—not elected-active judges.

56

See A. SCALIA & B. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 221

(2012) (explaining that under the “Title-and-Headings Canon,” the title or section of a statute or

constitutional provision can aid in resolving intent of its framers); see also id. at 167 (“Context is

a primary determinant of meaning.”).

57

TEX. CONST. art. V, § 11 (emphasis added).

21

the entire sentence has been construed liberally in long-standing precedent so as not to

require a bench-for-a-bench exchange. 58 This expansive provision traces its roots to the

57F

Republic of Texas which also espoused a flexible district judge with state-wide authority:

[A]ny of the judges of the district courts are hereby authorized to hold

the courts in any other district than their own, by arrangement with each

other; and all judgements or proceedings before such judge shall be as good

in law and equity, as if the court was held by the judge of the district.” 59 58F

58

For instance, in Isaac v. State, 257 S.W.2d 436 (Tex. Crim. App. 1953), we affirmed a

judge’s authority to sit on a foreign bench in which District Judge Frank McDonald of Hill County

presided in place of District Judge Max Rogers in a Walker County district court. Nowhere did we

require that Judge Rogers had to be presiding in Judge McDonald’s district contemporaneously.

The Court of Criminal Appeals took an identical stance even prior to the Court

Administration Act:

Under the Constitution of this State (article 5, §11), district judges are

authorized to exchange. . . . Whether at the time, Judge Carrigan was holding court

of Judge Dickson or for some one else is not made apparent. We think it may often

happen that a district judge, who has the care of a family and sometimes cares of

business, is authorized, when in his judgement fairly exercised it is necessary for

his own health or to care for the health of his family, . . . to temporarily absent

himself from his post of duty and by exchange, or by calling on the incumbent of an

adjoining or adjacent district, provide the means for the continued holding of the

court, and that no litigant in such case has a right to retire such exchanging judge

from the bench.

Johnson v. State, 134 S.W. 225, 226 (Tex. Crim. App. 1910) (emphasis added).

Consistent with this Court’s ruling in the early 1900s, the Texas Supreme Court applied a

liberal construction of the provision during that same time frame. See Munzesheimer v. Fairbanks,

18 S.W. 697, 697 (Tex. 1891) (holding that a requested judge from a different district had authority

under Article V, Section 11 to oversee a special term and sit in place of the judge of that district

without a bench-for-bench exchange); see also Connellee v. Blanton, 163 S.W. 404, 405–06 (Tex.

Civ. App.—Fort Worth 1913, writ ref’d) (finding authority Article V, Section 11 for a district

judge from a foreign district to “hold court” for a native district judge’s court without an exchange

of benches).

59

Act approved Feb. 1, 1842, 6th Cong., R.S., § 1, 1842 Repub. Tex. Laws 85, reprinted

in 2 H.P.N. GAMMEL, THE LAWS OF TEXAS 1822–1897, at 757 (Austin, Gammel Book Co. 1898);

see also Ex parte Holmes, 754 S.W.2d 676, 679–81 (Tex. Crim. App. 1988) (detailing the history

of judicial assignments in Texas). The initially statutory ability of elected district judges to swap

22

Under the Texas Constitution, elected district judges have the ability to serve state-wide

when properly requested.

2. Authority under Texas Government Code Chapter 74

On top of the broad Constitutional grant of authority to elected district judges, the

Court Administration Act also provides a framework for the assignment of judges to cases

or courts. Judges (including active district judges) “may be assigned in the manner

provided by this chapter to hold court when necessary to dispose of accumulated business

in the region.” 60 And a judge assigned under the Court Administration Act “has all the

59F

powers of the judge of the court to which he is assigned.” 6160F

The Court Administration Act also provides several ways for a judge to be assigned.

Chapter 74 allows the regional presiding judge of the administrative judicial region to

assign a judge (including active district judges) to a district court or a specific case in his

region. 62 This explicit power exists in addition to the broad authority of a regional presiding

61F

judge to effectuate and “improve the management of the court system and the

benches and “hold courts for each other” was incorporated into the Constitution of 1845 upon

joining the Union, and has survived nearly unchanged to the present day. TEX. CONST. OF 1845

art. IV, § 14; TEX. CONST. OF 1861 art. IV, § 14; TEX. CONST. OF 1866 art. IV, § 12; TEX. CONST.

OF 1869 art. V, § 11; TEX. CONST. art. V, § 11.

60

TEX. GOV’T CODE § 74.052.

61

TEX. GOV’T CODE § 74.059(a).

62

See TEX. GOV’T CODE § 74.056.

23

administration of justice.” 63 A judge may also be assigned to a specific case or court in any

62F

region by the Chief Justice of the Supreme Court of Texas. 64 63F

3. Chapter 74 and District Judges

The Court Administration Act, however, does not apply to active district judges the

same way it applies to non-active judges. Because active district judges have been elected

in accordance with the Constitution, many of the rules in Chapters 74 that specifically apply

to non-active or visiting judges are not applicable. For example, there is no requirement for

an active district judge to have been on the bench for 96 months in order to be assigned to

another court or region in the State. 65 Regional presiding judges are required to keep a list

64F

of those eligible to serve as visiting judges; elected district court judges are not on those

lists. 66 And even if non-active visiting judges meet all of the qualifications to be on that

65F

list, regional presiding judges are granted the discretion to assign, or not to assign, those

on that list under Chapter 74. 67 66F

Although regional presiding judges may elect not to assign active judges within their

own region, nothing in the Texas Constitution or Chapters 74 and 75 allows them to prevent

active judges from presiding in other districts or regions when requested by one with proper

63

TEX. GOV’T CODE § 74.047.

64

See TEX. GOV’T CODE §§ 74.057, 74.049.

65

See TEX. GOV’T CODE § 74.055(c)(1).

66

See TEX. GOV’T CODE § 74.055(a).

67

See TEX. GOV’T CODE § 74.054(a).

24

authority such as another district court judge or another regional presiding judge. 68 If the

67F

State Commission on Judicial Conduct has taken certain types of action against non-active

judges, they are not eligible to sit in a visiting capacity; whereas sitting elected judges may

continue to act in their elected judicial positions, accept assignments, or exchange benches,

or hold courts for each other. 69 Parties may object to visiting judges in many cases, but not

68F

so for elected judges. 70 Elected judges cannot be required to sit by “assignment” outside

69F

of their elected court for more than ten calendar days per year without their consent. 71 70F

Thus, while a non-active or visiting judge’s authority beings and ends with the Court

Administration Act, an active district judge’s authority continues under the Constitution

even where their Chapter 74 authority ends.

4. Requirements from the Home Region’s Presiding Judge

Having established the multiple ways an active district judge is empowered to

preside in a foreign district or region, the next question is whether an assignment order by

his home region’s presiding judge is needed. In short, neither the Constitution nor the Court

Administration Act requires it. 72 71F

68

TEX. CONST. art. V, § 11.

69

See TEX. GOV’T CODE § 74.055(f).

70

TEX. GOV’T CODE § 74.053(e).

71

TEX. GOV’T CODE § 74.060(a).

72

See TEX. CONST. art. V, § 11; TEX. GOV’T CODE § 74.056.

25

It is axiomatic in our system of government that the Constitution always remains

supreme. 73 Thus, the broad power granted by the Constitution to district judges may not

72F

be taken away by statute. The Legislature may fill the silent gaps of a constitutional power;

but they may not limit that power unless it is clearly contemplated by the Constitution. 74 73F

Only a constitutional force may negate a constitutional force.

Since the Constitution was adopted in 1876, this Court has repeatedly relied on

Article V, Section 11 as the source of power for district judges to preside in another court

anywhere in the State. Half a century ago, Presiding Judge Onion of this Court said:

The expression “whenever they deem it expedient,” as utilized in both

constitutional and statutory provisions confers on district judges broad

discretionary powers to exchange benches, or hold court for each other,

which is reviewable only if an abuse of discretion has occurred. Although the

better practice would require one, the exchange may be accomplished

without the necessity of a formal order or entry on the record of the reasons

for such exchange. 75 74F

73

See In re State ex rel. Wice, 629 S.W.3d at 731 (Goodman, J., concurring & dissenting).

74

Statutes with the same purpose or object must be read together harmoniously and read

under a constitutional interpretation when possible. Diruzzo v. State, 581 S.W.3d 788, 799 (Tex.

Crim. App. 2019) (citing A. SCALIA & B. GARNER, READING LAW: THE INTERPRETATION OF LEGAL

TEXTS 80 (2012); State v. Vasilas, 253 S.W.3d 268, 272–73 (Tex. Crim. App. 2008). “In enacting

a statute, it is presumed that: (1) compliance with the constitutions of this state and the United

States is intended; (2) the entire statute is intended to be effective; . . . (4) a result feasible of

execution is intended . . . .” TEX. GOV’T CODE § 311.021.

75

Floyd v. State, 488 S.W.2d 830, 832 (Tex. Crim. App. 1972).

26

Thus, this Court has repeatedly held that no formal order is needed for an elected

district judge to preside over a different district court. 76 Our civil brethren, also beholden

75F

to the same Constitution, have arrived at the same conclusion. 77 76F

Furthermore, nothing in Section 74.056 dictates a formal order is required when

assigning an elected judge to another region. 78 The language of the Court Administration

77F

76

See Davila v. State, 651 S.W.2d 797, 799 (Tex. Crim. App. 1983) (“It is not necessary

that a formal order be entered for the judge of one district court to preside over a case in place of

a duly elected judge, nor is it necessary for the docket sheet or minutes to show the reason for the

exchange of benches by district judges.”); Floyd, 488 S.W.2d at 831–32; Pendleton v. State, 434

S.W.2d 694, 697 (Tex. Crim. App. 1968) (“No formal order need be entered for the judge of one

district court to preside over a case in the place of a duly elected judge.”); Isaac v. State, 257

S.W.2d 436, 437–38 (Tex. Crim. App. 1953) (“Judge McDonald being at the time the regularly

elected judge of the 66th Judicial District of this State, and not a ‘special judge,’ was authorized

to preside for Judge Rogers without the necessity of the entry of a formal order.”); Richardson v.

State, 228 S.W.2d 179, 180–81 (Tex. Crim. App. 1950) (“Moreover, Judge Morrison, being a

District Judge, derived his authority to preside in such court under the provisions of Art. V, Sec.

11, of the Constitution of Texas . . . .”).

77

In re Commitment of Burd, 612 S.W.3d 450, 459 (Tex. App.—Houston [1st Dist.] 2020,

pet. denied) (“No formal order is needed for an exchange or transfer to take place.” (citing Pinnacle

Gas Treating, Inc. v. Read, 160 S.W.3d 564, 566 (Tex. 2005) (per curiam))); European

Crossroads’ Shopping Ctr., Ltd. v. Criswell, 910 S.W.2d 45, 51 (Tex. App.—Dallas 1995, writ

denied) (“The trial court may exchange or transfer a case on its own initiative. Exchange or transfer

does not require a formal order. The minutes of the court do not need to show the reason for the

exchange.”); Ex parte Lowery, 518 S.W.2d 897, 901 (Tex. Civ. App.—Beaumont 1975, no writ)

(“Further, we concede that such an exchange may be effected upon the judges' own initiative and

that the making and entry of a formal order is not required nor does the reason for the exchange

need be shown in the minutes.”); Baldwin v. Leonard, 110 S.W.2d 1160, 1161 (Tex. Civ. App.—

Eastland 1937, writ dism’d) (“[A]n exchange of districts may be effected upon the judges' own

initiative, or as the result of a request of one of the judges. The making and entry of a formal order

declaring the exchange of districts by the judges is not required; nor is it essential that the docket

or minutes show a reason for the exchange.” (citing 25 TEX. JUR. p. 346, § 96)); Marx v. Weir, 130

S.W. 621, 621–22 (Tex. Civ. App.—Beaumont 1910, writ ref’d) (affirming and stating: “The

provisions of the Constitution [Section 11, art. V] need no construction and furnish a complete

answer to appellant’s contention” where the record was silent as to the reasons and “there was no

exchange of districts between said [elected] judges”).

78

TEX. GOV’T CODE 74.056; see Assignment Order I; Assignment Order III (citing to TEX.

GOV’T CODE 74.056).

27

Act suggests that an assignment order to another region from the home region is preferable,

but never explicitly mandates it:

(a) A presiding judge from time to time shall assign the judges of the

administrative region to hold special or regular terms of court in any

county of the administrative region to try cases and dispose of

accumulated business.

(b) The presiding judge of one administrative region may request the

presiding judge of another administrative region to furnish judges to aid

in the disposition of litigation pending in a county in the administrative

region of the presiding judge who makes the request. 79

78F

“May” is permissive in nature—not mandatory. Thus, a formal order or request is

not required. Nevertheless, even if the statute required a formal order, the supreme nature

of the Constitution would invalidate it as applied to active district judges.

Furthering the observations above, the Constitution explains that another district

judge may hold court for another judge “when deemed expedient.” 80 The statute may not

79F

block said expediency in the name of administrative efficiency. It is perhaps desirable for

administrative purposes, but it is not constitutionally nor statutorily required that regional

presiding judges issue orders to active district judges assigning them to other regions or

courts. 81

80F

79

TEX. GOV’T CODE § 74.056 (emphasis added).

80

TEX. CONST. art. V, § 11.

81

See Floyd v. State, 488 S.W.2d 830, 832 (Tex. Crim. App. 1972) (“Although better

practice would require one, the exchange may be accomplished without the necessity of a formal

order or entry on the record of the reasons for such exchange.”).

28

Significant portions of Chapters 74 and 75 cover administrative matters related to

all judges assigned in jurisdictions other than their own. Those matters include

compensation for the actual judicial work, reimbursement for travel expenses, hotels, per

diem, etc. All of these matters require a “paper-trail” for the promotion of the orderly and

efficient administration of justice. While this paper-trail may be necessary to compensate

and reimburse judges for the work they do, it has nothing to do with granting authority to

assigned judges to preside over cases, except where a judge’s authority is derived solely

from statute. The Court Administration Act, like all statutes, can only add—and never

detract—to the grants of authority under the Constitution. 82 Thus, if an elected district

81F

judge does not need his home region’s presiding judge’s permission under the Constitution,

he certainly does not need it under Chapter 74. 83 82F

82

In Richardson v. State, 228 S.W.2d 179 (Tex. Crim. App. 1950), we affirmed a judge’s

authority to sit by assignment in a foreign administrative judicial district. There an active district

judge from the First Administrative Judicial District was assigned to a court by the regional

presiding judge for the Third Administrative Judicial District. This Court held that District Judge

Morrison of the Third Administrative Judicial District was statutorily authorized to preside over

the case by assignment. “Moreover, Judge Morrison, being a District Judge, derived his authority

to preside in such court under the provisions of Art. V., Sec. 11, of the Constitution of Texas . . . .”

Richardson, 228 S.W.2d at 180–81.

Our civil jurisprudence has reached the same conclusion regarding the double layers of

authority with equal state-wide binding stature. Eucaline Medicine Co. v. Standard Inv. Co., 25

S.W.2d 259, 262–63 (Tex. Civ. App.—Dallas 1930, writ ref’d) (finding with Texas Supreme Court

precedential authority that an elected district judge—statutorily assigned to another district court

by the regional presiding judge of that judicial region—also had constitutional power under Article

V, Section 11 to hold court for another judge).

83

Id.

29

E. Rule for Active District Judges

Harmonizing our constitutional text, statutory language, and our case law once

more, 84 we reaffirm the following on when an elected district judge may sit in another

83F

Texas district court. 85 84F

We find once again that, in addition to the district in which they innately preside,

duly elected district judges (active district judges) have constitutional authority to sit on

84

While it is this Court’s prerogative to alter our case law in all criminal matters, changing

course after nearly a century would create a conflicting constitutional interpretation with our co-

equal Texas Supreme Court on the civil side. Richardson v. State, 228 S.W.2d 179 (Tex. Crim.

App. 1950); Eucaline Medicine Co. v. Standard Inv. Co., 25 S.W.2d 259 (Tex. Civ. App.—Dallas

1930, writ ref’d).

85

The Court of Appeals’s majority opinion cited to four cases in its section expounding

upon the authority granted by an assignment order. In re State ex rel. Wice, 629 S.W.3d 715, 725

(Tex. App—Houston [1st Dist.] 2021, orig. proceeding). Unlike this case, those cases do not deal

with an active district judge possessing constitutional authority in addition to authority under

Chapter 74. In re Public Parking System, Inc., 60 S.W.3d 877 (Tex. App—Houston [14th Dist.]

2000, orig. proceeding) (concerning former court of appeals justice serving as visiting judge);

Mangone v. State, 156 S.W.3d 137 (Tex. App—Fort Worth, 2005, pet. denied) (dealing with a

visiting judge); In re Richardson, 252 S.W.3d 822 (Tex. App—Texarkana 2008, orig. proceeding)

(regarding senior judge serving as visiting judge); Hull v. South Coast Catamarans, L.P., 365

S.W.3d 35 (Tex. App—Houston [1st Dist.] 2011, no pet.) (dealing with a visiting judge).

Additionally, the Court of Appeals’ majority relies on Roberts v. Ernst, 668 S.W.2d 843

(Tex. App—Houston [1st Dist.] 1984, no pet.) to conclude no exchange of benches occurred.

Justice Goodman explains that “Roberts stands for the commonsense principle that an exchange

of benches cannot exist, or be implied from an expired assignment, when the facts definitively

show that one judge is interfering with the rightful authority of another. This principle has no

applicability here, given that Gallagher was the lone judge presiding over these cases when he

transferred them to Harris County.” In re State ex rel. Wice, 629 S.W.3d at 730 (Goodman, J.,

concurring & dissenting). We also note, that Roberts does not deal with any orders assigning a

judge to another region, but rather a couple of competing assignment orders by the regional

presiding judge to the same district court in his region.

30

any bench in any region in the State outside their home region provided they have been

requested by the presiding authority for that bench in that region. 86 85F

Regional presiding judges have the authority to assign a judge to any bench in his

region under Chapter 74. 87 They do not and cannot detract from an active district judge’s

86F

constitutional authority that may be exercised at that judge’s discretion. 88 Thus, once

87F

properly requested by one with authority and until the invitation by the requesting authority

is revoked, no other judge can constitutionally prohibit, remove, or deauthorize a qualified

active district judge from sitting outside their district—even where that bench is in a foreign

region of the State. 89 The only circumstances that would allow for any such limitations

88F

include the aforementioned revocation of the request, recusal, disqualification, the active

district judge’s objection and request for relief from such an assignment, or that the parties

do not consent to the judge following a change of venue. 90 89F

86

See TEX. CONST. art. V, § 11 (“And the District Judges may exchange districts, or hold

courts for each other when they may deem it expedient, and shall do so when required by law.”).

87

TEX. GOV’T CODE § 74.056(a).

88

See TEX. GOV’T CODE § 311.021; see TEX. CONST. art. V, § 11; cf. Marbury v. Madison,

5 U.S. 137, 177 (1803) (“Certainly all those who have framed written constitutions contemplate

them as forming the fundamental and paramount law of the nation, and consequently the theory of

every such government must be, that an act of the legislature, repugnant to the constitution, is

void.”).

89

See TEX. CONST. art. V, §§ 7(d)–(e), 11.

90

See TEX. CONST. art. V, § 11 (“No judge shall sit in any case wherein the judge may be

interested, or where either of the parties may be connected with the judge, either by affinity or

consanguinity, within such a degree as may be prescribed by law, or when the judge shall have

been counsel in the case . . . .When a judge of the District Court is disqualified by any of the causes

above stated, the parties may, by consent, appoint a proper person to try said case; or upon their

failing to do so, a competent person may be appointed to try the same in the county where it is

31

VI. Discussion

As applied here, Judge Oldner was an active district judge of the 416th District

Court in the First Administrative Region. Duly assigned to the instant case, Judge Oldner

recused himself from hearing the Real-Party-in-Interest’s case and referred the case to his

home region’s presiding judge of the administrative region including Collin County—

Presiding Judge Murphy. At this point, it was unmistakable and undisputed that Presiding

Judge Murphy had authority to make an assignment over the case. 91 Presiding Judge

90F

Murphy assigned Judge Gallagher (the elected judge for the 396th District Court in Tarrant

County) to the 416th District Court to specifically hear the Real-Party-in-Interest’s case.

Presiding Judge Murphy made this assignment to be effective without a time limit

consistent to and within her discretionary authority as a regional presiding judge.

The assignment from the presiding judge of the region covering Collin County was

sufficient to grant Judge Gallagher, an active judge, the requisite authority under the

Constitution to sit in the case. This assignment to hear the Real-Party-in-Interest’s case was

pending, in such manner as may be prescribed by law.”); see also TEX. GOV’T CODE § 74.060(a)

(“An active judge may not, without the judge's consent, be assigned out of the judge's district or

county for more than 10 calendar days in a year.”); TEX. CODE CRIM. PROC. art. 31.09(a) (requiring

consent of the parties before a judge can continue to preside over a case after ordering a change of

venue).

91

TEX. R. CIV. P. 18a, 18b; see TEX. GOV’T CODE § 74.058 (b) (empowering a regional

presiding judge to relieve a judge of an assignment on presentation of “good cause”); TEX. GOV’T

CODE § 74.047 (empowering a regional presiding judge to “perform the acts necessary to carry out

the provisions of this chapter [Ch. 74] and to improve the management of the court system and the

administration of justice”); TEX. GOV’T CODE § 74.056 (empowering a regional presiding judge to

assign judges “to try cases and dispose of accumulated business”).

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never revoked by Presiding Judge Murphy. 92 Nor did Judge Gallagher seek relief of the

91F

assignment. 9392F

While the order transferring Judge Gallagher to another region expired (Assignment

Order III), no assignment order from Judge Gallagher’s administrative judicial region was

ever required because Judge Gallagher was an elected judge. 94 As an active district judge,

93F

Judge Gallagher had constitutional authority to sit in any district court across the state,

provided another district judge, regional presiding judge, or the Chief Justice requested

him. Here, Presiding Judge Murphy provided the keys to the 416th District Court to preside

over the Real-Party-in-Interest’s case.

Because Presiding Judge Murphy assigned Judge Gallagher to specifically hear the

Real-Party-in-Interest’s case, no further formal order transferring Judge Gallagher from the

Eighth Administrative Judicial Region to the First Administrative Judicial Region was

necessary to grant Judge Gallagher the authority to sit in the 416th District Court. Judge

92

Assignment Order II. There is nothing in the record to suggest that Presiding Judge

Murphy revoked Judge Gallagher’s assignment to hear the Real-Party-in-Interest’s case.

93

Id.; TEX. GOV’T CODE §§ 74.058, 74.060(a).

94

Continuing beyond the expiration date of the assignment order from Judge Gallagher’s

home region had only one effect: Judge Gallagher was no longer statutorily obligated to preside

over the instant case. Nevertheless, Judge Gallagher, as an active district judge, maintained his

constitutional power to continue presiding over the case so long as he was willing and the First

Administrative Judicial Region’s presiding judge remained willing.

Again, we note that the email exchange between the administrative assistants for the

regional presiding judges of the First and Eighth Administrative Judicial Regions demonstrate an

intent for Judge Gallagher to continue to be assigned to the First Administrative Judicial Region

past January 2017. They suggest that both regional presiding judges correctly understood that an

additional extension order was not needed for the First Administrative Judicial Region to continue

to retain Judge Gallagher on the case.

33

Gallagher was properly requested by one with authority in Collin County—Presiding Judge

Murphy. While the order signed by Judge Evans may have facilitated other administrative

matters related to Judge Gallagher’s assignment in Collin County, the assignment order

could not, by itself limit the underlying authority of the elected district judge from sitting

in another court. Indeed, there is nothing in the language of 74.056(b) that requires any

order of assignment from an elected judge’s home region’s presiding judge to another

region. Moreover, there is nothing in the record to suggest that Judge Gallagher was

constitutionally or statutorily disqualified from sitting as a judge on the 416th District

Court. And there is nothing to suggest that Presiding Judge Murphy revoked Judge

Gallagher’s invitation to a court within Presiding Judge Murphy’s administrative region.

Judge Gallagher had authority to sit in the 416th District Court to preside over the

Real-Party-in-Interest’s case when he issued the venue transfer order on April 11, 2017. 95 94F

To hold otherwise, would erroneously limit the constitutional statewide authority vested in

duly elected district court judges by the Texas Constitution. 96 Moreover, it would require

95F

this Court to interpret 74.056 in such a way that an elected district court judge would have

95

Real-Party-in-Interest’s arguments are predicated on the condition that Judge Gallagher

was a visiting judge. We note that Real-Party-in-Interest’s arguments (that Judge Gallagher’s

assignment by Presiding Judge Evans was temporally restricted) relied on case law dealing with

visiting judges—not active district judges. However, Judge Gallagher was not a “visiting judge”

as the law defines him. For the purposes of Chapter 74, he was an “active district judge,” and

constitutionally, a “conservator of the peace throughout the state.”

96

In his dissent, Judge Yeary asserts that the Court is mistaken for our incorrect focus and

that we have “no good reason[s]” for conditionally granting mandamus today. But it is never a

judicial sin to follow the Constitution and the rule of law. And mandamus must at least be

appropriate when a judge, over a party’s objection, ignores the Constitution.

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to obtain the permission of his regional presiding judge to sit in another region when

requested to do so by one in authority. Simply put, the statute does not say that and even if

it did, it could not override that constitutional authority conferred upon elected district

judges.

Judge Gallagher’s order changing venue to Harris County is a valid order. 97 As we 96F

have said before, venue, unlike jurisdiction is waivable. 98 Here, the parties clearly waived

97F

97

We have been criticized that the venue change order was correctly voided because Judge

Johnson and Judge Luong may have thought Judge Gallagher was outside his authority by failing

to choose the appropriate venue under statute.

But first, what Judge Johnson and Judge Luong may have thought is not in the record. This

is pure speculation. And assertions “not supported by evidence in the record will not be

considered” on review. Franklin v. State, 693 S.W.2d 420, 431 (Tex. Crim. App. 1985). Making

arguments not made by the parties in a case such as this comes dangerously close to advocacy.

And this Court is constitutionally required to remain separate from such a role.

Second, even if we were to entertain the above argument, it would still not entitle any judge

to void Judge Gallagher’s change of venue order. By claiming his choice of venue was erroneous,

this argument implicitly concedes that the predicate decision to change venue was completely

valid.

98

Ex parte Watson, 601 S.W.2d 350, 351 (Tex. Crim. App. 1980). Judge Yeary states that

he is “concerned” that “the Court might unwittingly be establishing a rule permitting venue-by-

consent in all cases . . . .” J. Yeary’s Dissent at *15. Most rights—even those established in the

U.S. Constitution, such as the Fourth Amendment—are waivable by express consent. See Proenza

v. State, 541 S.W.3d 786, 792 (Tex. Crim. App. 2017) (discussing category-one, -two, and -three

Marin rights). As we explained in Proenza and Marin, that is how rights work. Courts should

generally not interfere with the free choice of the parties absent an objection or issue of

fundamental fairness. Only those rights recognized as fundamental or systemic to the fair

administration of justice (category-one Marin rights) can never be waived. And as we have clearly

established in Ex parte Watson, venue is not a category-one Marin right: “Unlike jurisdiction,

venue may be acquired by consent.” Ex parte Watson, 601 S.W.2d 350, 351 (Tex. Crim. App.

1980); see id. at 352 (“It is apparent from above that, strictly as a matter of jurisdiction, a district

court may try any case in which the offense takes place within the State. Of course in a given case

venue may not be proper under the provisions of Chapter 13 of the Code of Criminal Procedure.

The failure to comply with those provisions, however, does not deprive the district court of

jurisdiction. Ultimately, whether the provisions of Chapter 13 are enforced depends on whether

35

any objections under Article 31.02 and consented to a non-adjacent county. 99 Therefore,98F

Judge Gallagher had the discretion as a judge with constitutional and statutory authority to

change venue to Harris County even though it is a non-adjacent county. 100 And the 99F

Constitution requires more than mere disagreement to void the rulings of one of its judges

acting within their discretion.

Thus, the act of voiding Judge Gallagher’s valid order was clearly unlawful because

it violated Judge Gallagher’s judicial authority flowing from both the Texas Constitution

and our statutes. 101 Nevertheless, because one of the parties objected to Judge Gallagher

100F

the defendant asserts his rights under those provisions. We conclude that the trial court in this case

had jurisdiction of the cause even if venue were improper.”).

99

“Indeed, the law of invited error estops a party from making an appellate error of an

action it induced.” Druery v. State, 225 S.W.3d 491, 506 (Tex. Crim. App. 2007) (internal quotes

omitted).

100

Judge Yeary claims that the State still has a remedy and therefore, mandamus is

inappropriate. He claims the State could simply file another motion to change venue in Collin

County. However, his proposed remedy is no remedy at all. Under the wrong set of circumstances

and judicial rulings, it could lead to an infinite loop of venue changes before an appropriate venue

is identified. The core right protected by venue change procedures is the right to a fair trial for both

the State and defendant. See U.S. CONST. amend. VI; TEX. CODE CRIM. PROC. art. 2.03 (b) (“It is

the duty of the trial court, the attorney representing the accused, the attorney representing the state

and all peace officers to so conduct themselves as to insure a fair trial for both the state and the

defendant, . . . .”). The protections we have in place to ensure this core right would be undermined

under the proposed remedy.

101

As we stated above, when there is no adequate remedy at law, a clear right to mandamus

relief exists “[w]hen a trial court acts beyond the scope of its lawful authority.” In re City of

Lubbock, No. WR-93,137-01, 2023 WL 1807149, at *5 (Tex. Crim. App. Feb. 8, 2023) (orig.

proceeding) (citing In re State ex rel. Ogg, 618 S.W.3d 361, 365 (Tex. Crim. App. 2021) (orig.

proceeding)).

36

presiding over the case after the change of venue was granted, Judge Gallagher was

properly replaced following his order to change venue. 102 101F

Conclusion

We have previously held that mandamus relief can be warranted “when the issue

involves an unambiguous statute [and constitutional provisions], or when ‘the combined

weight of our precedents clearly establishes’ the proposition of law on which relief is

predicated.” 103 In this case, mandamus is clearly warranted because of what is bindingly

102F

dictated by all three—the second stretching centuries since its Republic of Texas inception,

and the other two just shy of one.

The standards we use to judge will inevitably be applied against us. Thus, even the

noblest of goals, no matter how righteous, cannot justify improper means. 103F

104

It leads away

from the enlightened order provided under the rule of law. Today we fulfill our duty by

upholding our Constitution’s rule of law and affirming the wisdom of its framers. Thus,

102

TEX. CODE CRIM. PROC. art. 31.09(a).

103

In re Meza, 611 S.W.3d 383, 389 (Tex. Crim. App. 2020) (first citing In re State ex rel.

Wice v. Fifth Jud. Dist. Ct. App., 581 S.W.3d 189, 194–95 (Tex. Crim. App. 2018) (orig.

proceeding), and then citing In re State ex rel. Weeks, 391 S.W.3d 117, 126 (Tex. Crim. App.

2013) (orig. proceeding)).

104

See Paine, Thomas, THE AMERICAN CRISIS (Dec. 23, 1776) (“THESE are the times that

try men's souls. The summer soldier and the sunshine patriot will, in this crisis, shrink from the

service of their country; but he that stands by it now, deserves the love and thanks of man and

woman. Tyranny, like hell, is not easily conquered; yet we have this consolation with us, that the

harder the conflict, the more glorious the triumph. What we obtain too cheap, we esteem too

lightly: it is dearness only that gives every thing its value. Heaven knows how to put a proper price

upon its goods; and it would be strange indeed if so celestial an article as FREEDOM should not

be highly rated.”).

37

Judge Gallagher had constitutional and statutory authority to preside when he ordered the

change of venue to Harris County. The district court in Harris County had no authority to

void it. We conditionally grant the State’s petition for writ of mandamus. The writ of

mandamus will issue only in the event that the courts below fail to comply with this

opinion.

Delivered: June 14, 2023

Publish

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