A mandamus petition asking that question about Texas statutory probate courts is now pending in the Court. It also raises some question about the interaction between local rules, the statewide rules of civil procedure, and statutes.
Yesterday, the Texas Supreme Court granted an emergency stay and then asked for full briefing on the merits in In re The Honorable Guy Herman, No. 09-0109 (DB).
This mandamus petition grows out of a probate proceeding that sparked a number of recusals. After each, the reassignment was made by Judge Herman under a local rule that provided “case[s] shall be re-assigned by the Harris County Clerk by random assignment to another Harris County probate court.” (( Local Rule 4.3 of the Local Rules for Probate Courts of Harris County [PDF]. ))
Two members of the Alpert family objected, arguing that the reassignments should instead have been made by Judge Underwood, the regional administrative presiding judge, pursuant to Texas Rule of Civil Procedure 18a(f) [PDF] that vests authority in “the presiding judge of the administrative judicial district.” (( The opinion notes that Texas Government Code § 25.0255 also vests some authority in the presiding judge but does not explicitly state which judge should make a reassignment. ))
The First Court of Appeals, through Justice Bland, concluded that Judge Herman’s orders were void because the reassignments should have been made by Judge Underwood.
Specifically, the First Court held that Local Rule 4.3 could not give the power to reassign cases to the court clerk because “a local rule may not conflict with a Texas Rule of Civil Procedure.” (( The court cited Texas Rule of Civil Procedure 3a(1) that â€œEach administrative judicial region, district court, county court, county court at law, and probate court may make and amend local rules governing practice before such courts, provided: (1) that any proposed rule or amendment shall not be inconsistent with these rules or with any rule of the administrative judicial region in which the court is located.â€ ))
The First Court also rejected the argument that the local rule “fills a gap” in the Government Code about the question of who can make the assignment. The court held that, because the rule of civil procedure filled that same gap, the local rule was displaced.
In the Texas Supreme Court, Judge Herman is represented by the Solicitor General’s office. An amicus curiae brief has already been filed in the case by Senator Jeff Wentworth.