holding that when a statute read literally and in context is capable of being understood in two ways, it is classically ambiguous when the parties take polarized positions
How later courts described this case
- holding that when a statute read literally and in context is capable of being understood in two ways, it is classically ambiguous when the parties take polarized positions
- relator assigned judge entitled to mandamus relief because, among other things, respondent state had no “clear legal right” to remove relator under Section 74.053(d)
- finding ambiguous a statute silent on whether "a case" refers to a criminal case or a civil case
- "In making th[e] determination [of what constitutes a 'criminal law matter'], we are not bound by the fact that there may be civil law facets to the issue at hand, anymore than the Texas Supreme Court, in determining whether a matter is civil in nature, is bound by the fact that the matter may be quasi-criminal.”
Written by the judges who cited it.
The opinion
CLINTON, Judge,
concurring.
In my judgment this is a “criminal law matter” within the intendment and meaning of Article V, § 5, simply because the District Attorney of Harris County made written objection to Relator’s sitting in a criminal prosecution being pursued by assistants of the District Attorney, contending that a statute in the Government Code is applicable in a criminal case.
Furthermore, in my judgment the statute in question plainly applies to assigned judges in civil cases only, keeping in mind that subsection (c) contemplates “the first hearing or trial, including pretrial hearings over which the assigned judge is to preside.”
The first sentence of subsection (b) expressly provides that “a party to a civil case” may file a timely objection to the assignment and thereby automatically prevent an assigned judge from hearing “the case."
Under the second sentence before amendment each party to “the case ” was “only entitled to one objection ... for that case.” The only “case” could be what the first sentence identifies as a “civil case.” After amendment that “one objection” rule became subject to the exception “provided by subsection (d).”
In adding subsection (d) as an “exception” to the “one objection” limitation in the second sentence of subsection (b), the Legislature did not manifest any intent to enlarge the character and extend the scope of “civil cases” prescribed in subsection (b). Rather, it seems clear enough to me, the Legislature made it possible for “a party to a civil case” to object to a “former judge” (who is not “a retired judge”) from sitting in any subsequent phase of a civil case after the first hearing, any other pretrial hearings or trial.
For those reasons I agree with the Court that the District Attorney has not shown a clear legal right effectively to object and thereby to prevent Relator from sitting in the criminal case involved. Thus I join the judgment of the Court.