In the Matter of M.A.V.--Appeal from County Court at Law of Webb County

No. 04-99-00767-CV

From the County Court at Law, Webb County, Texas

Trial Court No. 98-CV1-00078-L1

Honorable Pat Priest, Judge Presiding

Opinion by: Karen Angelini, Justice

Dissenting opinion by: Paul W. Green, justice

Sitting: Phil Hardberger, Chief Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: January 31, 2001

REVERSED AND REMANDED

M.A.V. appeals the juvenile court's order certifying him to be tried as an adult. (1)

He attacks the certification and transfer order in four issues. We reverse the trial court's judgment and remand the cause for further proceedings.

Factual & Procedural History

In March, 1991, the State sought to certify M.A.V. to stand trial as an adult for crimes allegedly committed when he was sixteen. M.A.V. was charged with seven counts of capital murder, three counts of murder, eleven counts of burglary, and one count of theft. The trial court entered a certification order, which was reversed and remanded to the trial court to hold jury trials on temporary hospitalization and fitness to proceed. See M.A.V. v. Webb County Court at Law, 842 S.W.2d 739 (Tex. App.-San Antonio 1992, writ denied). M.A.V. was found fit to proceed. He escaped from juvenile custody in 1993 and was found in Mexico in 1995. Once M.A.V. was returned to Texas, the State reinitiated proceedings to certify him as an adult. The trial court waived its jurisdiction and ordered M.A.V. to criminal court to stand trial as an adult. This court, again, reversed and remanded the certification order, requiring the State to proceed under the proper Family Code section. In the Matter of M.A.V., 954 S.W.2d 117, 119 (Tex. App.-San Antonio 1997, pet. denied). The State, for the third time, undertook to certify M.A.V., and the trial court certified him to be tried as an adult in criminal court for the alleged offenses. It is from this certification and transfer order that M.A.V. appeals.

In four issues, M.A.V. challenges the certification and transfer order. First, M.A.V. asserts the trial judge erred in not removing himself from the certification hearing. Second, he claims there is no affirmative showing in the record that he received service of summons. Next, M.A.V. argues the trial court abused its discretion in finding the State exercised due diligence. And, finally, M.A.V. alleges that all the proceedings against him were not recorded in compliance with the Family Code and that he was harmed by that failure.

Discussion

In his first issue, M.A.V. claims the trial judge, a visiting judge, erroneously refused to remove himself from the certification proceeding, over M.A.V.'s timely objection. The Texas Government Code allows a party to object to the assignment of a judge to his or her case. Tex. Gov't Code Ann. 74.053 (Vernon 1998). When the objection is timely, the assigned judge "shall not hear the case." Id. 74.053(b). Such an "objection is timely if the party files it before the first hearing or trial over which the assigned judge is to preside." Id. 74.053(c); Flores v. Banner, 932 S.W.2d 500, 501 (Tex. 1996); see In re Torch Energy Mktg., Inc., 989 S.W.2d 20, 21 (Tex. App. -San Antonio 1998, no pet.). "[W]hen a party files a motion requesting affirmative relief and the judge considers the merits of the arguments and rules on the matter, there has been a hearing within the meaning of section 74.053." Perkins v. Groff, 936 S.W.2d 661, 666 (Tex. App.-Dallas 1996, writ denied).

M.A.V. filed his "Peremptory Strike of Visiting Judge" on September 13, 1999, at 9:00 a.m. M.A.V.'s certification and transfer hearing was held the same day. Immediately after the trial judge called the case, he acknowledged that M.A.V. had filed the motion that morning. The following colloquy then took place:

Judge: The first one that needs to be taken up is Respondent's peremptory strike for a visiting judge because if I'm not qualified to hear the matter then the rest of it becomes terribly moot.

Mr. Gonzalez do you wish to offer anything additional in support of your motion to strike me as judge in the case?

Gonzalez: No, Your Honor.

Judge: Does the State have any response to it?

State: Your Honor, this particular aspect - we have been to this avenue before, Your Honor, and the State feels that he would be entitled to strike.

Judge: Well I think you and he are both wrong. We had a meeting in chambers at which I discussed the matter and told Mr. Gonzales if he wanted to raise a - - a competency issue that he should file documents by a date in April. He filed nothing until today and therefore I feel that he has waived any right to strike me as judge in the case by failing to raise it in the time - - raise it in a timely fashion.

The trial judge then asked the State if it had anything, in addition, to say. The State responded that it was unsure of the law on the point and requested a ten minute recess to research the issue. Once the court was back in session, the State again agreed to the motion. The judge, still, denied M.A.V.'s motion.

M.A.V. claims that the denial of his timely motion was erroneous. The State counters that "the visiting judge had already acted and ruled in the particular case," and that, accordingly, M.A.V.'s motion was untimely. The State characterizes the in-chambers meeting held regarding a "competency issue" as the hearing or trial necessary to render M.A.V.'s motion untimely. It is undisputed that this meeting occurred. The record, however, does not reflect that either party filed any motions, or that the trial judge ruled on the merits of any motions at the conference. Because the record does not indicate that either party made any formal requests or motions during that meeting, or that the trial judge ruled on the merits of any issue, we cannot assume that a hearing, as contemplated by section 74.053, was held before M.A.V. filed his motion. See Perkins, 936 S.W.2d at 666. We are, therefore, compelled to find that M.A.V.'s motion was filed timely. And, when a party files a timely objection to an assigned judge, the judge's disqualification is mandatory. Flores, 932 S.W.2d at 501; Curtis v. State, 762 S.W.2d 958, 959 (Tex. App.-Dallas 1988, no writ). The trial judge, here, upon M.A.V.'s timely objection was disqualified, and any judgment he rendered is, therefore, void. Flores, 932 S.W.2d at 501; Curtis, 762 S.W.2d at 960.

Conclusion

Because we find the trial court erred in refusing to remove himself over M.A.V.'s timely objection, we do not reach the remainder of M.A.V.'s claims. We reverse the trial court's judgment and remand the case for additional proceedings.

Karen Angelini, Justice

PUBLISH

1. Because the alleged offense occurred before January 1, 1996, M.A.V. is entitled to appeal. See Act of May 23, 1991, 72nd Leg., R.S., ch. 680, 1, 1991 Tex. Gen. Laws 2466, 2466, amended by Act of May 27, 1995, 74th Leg., R.S., ch. 262, 48, 106(b), 1995 Tex Gen. Laws 2517, 2546, 2591 (section 56.01(c) of the Family Code no longer permits interlocutory appeal of the transfer and certification order).