IN RE JODEEN BOLTON, Relator

Writ of Prohibition Dismissed, Writ of Mandamus Denied and
Opinion Filed October 14, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-10-01115-CV
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IN RE JODEEN BOLTON, Relator
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Original Proceeding from the 301st District Court
Dallas County, Texas
Trial Court Cause No. DF-09-00290
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MEMORANDUM OPINION
Before Justices Bridges, Richter, and Murphy
Opinion By Justice Murphy
        Relator filed this original proceeding seeking a writ of prohibition to prevent respondent, the Honorable David Hanschen, Judge of the 254th District Court, from hearing any further evidence and from signing any further orders in this suit affecting the parent-child relationship (SAPCR). Relator contends Judge Hanschen lacked the authority to preside over the case because he was not properly appointed following the sua sponte recusal of the Honorable Lynn Cherry, Judge of the 301st District Court.   See Footnote 1  Relator does not appear to seek mandamus relief against Judge Hanschen, although she makes a request as part of the writ of prohibition that the judge's rulings on July 30 and August 27, 2010 be vacated. Judge Cherry is not named as a party to this original proceeding, but relator argues Judge Cherry clearly abused her discretion and acted outside the scope of her authority by sending the parties and attorneys “down the hall” to Judge Hanschen.
        This Court has jurisdiction to issue writs of prohibition to protect its jurisdiction. See Tex. Gov't Code Ann. § 22.221(a) (West 2004). As used in Texas, a writ of prohibition has three functions: (1) preventing interference with higher courts in deciding a pending appeal; (2) preventing an inferior court from entertaining suits that will re-litigate controversies already settled by the issuing court; and (3) prohibiting a trial court's action when it affirmatively appears the court lacks jurisdiction. Humble Exploration Co. v. Walker, 641 S.W.2d 941, 943 (Tex. App.-Dallas 1982, orig. proceeding).
        Here, no pending appeal exists related to the parties and issues, and no settled controversy appears in the record. Thus, the first two functions of writs of prohibition are not present. We also conclude the third function of writs of prohibition-prohibiting a trial court's action when it affirmatively appears the court lacks jurisdiction-is not satisfied. Although relator claims any actions by Judge Hanschen are void for lack of jurisdiction, those claims conflate disqualification and recusal.
        Disqualification of a judge is mandatory and any orders rendered by a disqualified judge are void. See Tex. R. Civ. P. 18b(1); In re Union Pac. Res. Co., 969 S.W.2d 427, 428 (Tex. 1998) (orig. proceeding). In contrast, subsequent proceedings by a judge subject to recusal are not void, but voidable, and the grounds for recusal can be waived. Randolph v. Texaco Exploration & Prod., Inc., No. 08-08-00157-CV, 2010 WL 939465, at *1 (Tex. App.-El Paso Mar. 17, 2010, pet. denied). If the complaint is that a judge acted without statutory or procedural authority, the proceedings subject to alleged error are not void, but voidable, and the error also can be waived. Davis v. Crist Indus., Inc., 98 S.W.3d 338, 342 (Tex. App.-Fort Worth 2003, pet. denied).         Relator asserts Judge Cherry voluntarily recused herself and failed to follow the procedure for referral of the case to the administrative judge for reassignment. See Tex. R. Civ. P. 18a(c), 18b(2) (recusal of judges). Without reaching the merits of relator's argument, we conclude the record does not affirmatively show the trial court lacked jurisdiction. Therefore, the third function of writs of prohibition fails. Accordingly, we have no jurisdiction to issue a writ of prohibition. See Humble Exploration, 641 S.W.2d at 943.
        Even if relator's proceeding were treated as a request for mandamus relief as to Judge Hanschen's rulings, relator has failed to show entitlement to the relief requested. See Tex. R. App. P. 52.8(a). Relator's premise for vacating Judge Hanschen's rulings and orders is that they were made without jurisdiction and are thus void. As discussed above, relator's complaint is that Judge Cherry recused herself. Any error in the failure of Judges Cherry and Hanschen to follow the procedural rules is not jurisdictional and can be waived. See Randolph, No. 08-08-00157-CV, 2010 WL 939465, at *1; Davis, 98 S.W.3d at 342.
        The record shows Judge Hanschen first presided without objection over a series of matters in this case beginning July 6, 2009 and continuing through September 1, 2010. It was not until September 7, 2010 that relator filed a “Motion to Sign Order of Recusal” directed to Judge Cherry. At no time has relator filed a motion to recuse either judge. Additionally, the parties dispute whether Judge Cherry's statements that she had worked with real party in interest and the judge “down the hall” would hear the pretrial on July 6, 2009 constituted a voluntary recusal. On this record, relator has failed to show she is entitled to mandamus relief.   See Footnote 2 
        We dismiss relator's petition for writ of prohibition for lack of jurisdiction. To the extent the proceeding can be considered a request for mandamus relief, we deny relator's request.
 
                                                          
                                                          MARY MURPHY
                                                          JUSTICE
 
 
101115F.P05
 
Footnote 1 Relator also identifies her proceeding as a petition for writ of mandamus and suggests that “in the event the court declines to sign the Order of Recusal, Mandamus is an appropriate remedy to compel a ministerial act.” Yet she has failed to name Judge Cherry as a respondent and only seeks mandamus relief prospectively. Such request therefore is not properly before the Court.
Footnote 2 The Court's conclusion should not be construed as approval of any trial judge's failure to follow the rules related to recusal or a local administrative order governing transfer of cases.