Mandamus Abatement Ping-Pong Skipped

TEXAS SUPREME COURT DISPENSES WITH ABATEMENT CONVENTION AND DECIDES MERITS

Abating the Mandamus Proceeding for reconsideration of the challenged ruling by different trial court judge?
But which trial court judge?

Mandamus is supposed to be directed to the judge that signed the order complained of. But what if no one judge stays with the case through its life and different judges will preside over different hearings? Supremes acknowledge problems created by San Antonio courts' rotating docket system and dispense with abatement procedure.

In Re Schmitz (Tex. 2009)
No. 07-0581 (Tex. May 22, 2009)(Brister) (factors considered in determining whether mandamus relief should be granted, shareholder derivative suit, sufficiency of pre-suit demand letter, notice)

FROM THE OPINION: As an initial matter, we must decide whether this case should be abated for reconsideration by a successor judge. The motion to dismiss here concerns a suit filed in the 288th District Court in Bexar County. After oral arguments in this Court, Judge Sol Casseb III replaced Judge Lori Massey as judge of that court. Normally, this would require abatement for reconsideration, as “[m]andamus will not issue against a new judge for what a former one did.”[4] But Judge Massey never heard the relators’ motion.

Under Bexar County’s central docket system, pretrial motions are generally heard by a presiding judge — one of the county’s 13 civil district judges who rotate monthly in that position.[5] The motion here was actually heard and denied by Judge Gloria Saldaña, who remains in office. The question is whether to abate this case for reconsideration when the judge who ceased to hold office never ruled on the motion, and the judge who did rule on it is still in office.

We hold that abatement is not required in these circumstances.

The proper respondent in a mandamus action is “the person against whom relief is sought.”[6] For judicial orders, that should generally be the judge who made the ruling. For example, in Remington Arms Co., Inc. v. Caldwell, we held the proper respondent in a challenge to a discovery sanction was the assigned judge who issued it rather than the presiding judge of the court in which the case was filed.[7]

But the courts of appeals have split on this issue. Some have held that the respondent in a mandamus proceeding should be the presiding judge rather than the judge who signed the challenged order.[8] Others have held the opposite — that the respondent should be the judge who signed the order rather than the presiding judge.[9] One has simply addressed the writ to both.[10] The only reason stated in any of these cases for naming a judge other than the one who signed the order is that the presiding judge alone has authority to sit in the case in the future.[11] But it is never entirely predictable who will preside over a case when it returns to a trial court, as Texas law allows judges to sit for one another whenever they choose.[12] This is especially true in counties with a central docket like Bexar County, as the presiding judge hearing pretrial matters changes monthly.

Generally, of course, the respondent is not critical in mandamus proceedings, as only the real party in interest actually appears, argues, and is affected by the outcome. Indeed, on at least two occasions we have changed the respondent on our own motion in a final opinion conditionally granting the writ.[13]

Of course, the writ must be directed to someone, but in the final analysis any judge sitting in the case after mandamus relief is granted would be compelled to obey it.[14] Accordingly, we adhere to the more practical rule treating the judge who signed the order as the respondent. As the judge who signed the order here has not left office, the abatement rule does not apply.

TERMS: PETITION FOR WRIT OF MANDAMUS, RESPONDENT IN MANDAMUS PROCEEDING, REAL PARTY IN INTEREST, ABUSE OF DISCRETION, ADEQUACY OF APPELLATE REMEDY, ABATEMENT OF MANDAMUS PROCEEDING PENDING IN COURT OF APPEALS, ROTATING DOCKET SYSTEM, JUDGES EXCHANGING BENCHES, SITTING FOR EACH OTHER