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Zavala v. Boliva

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

July 11, 2019

SALVADOR ZAVALA, Appellant,
v.
CARLOS C. BOLIVA, COREY FURR, RAFAEL MENCHACA, TRACY BROWN, JESSICA GARCIA, SHARON RUIZ AND ROSE GUERRA, Appellees.

          On appeal from the 343rd District Court of Bee County, Texas.

          Before Justices Benavides, Hinojosa, and Perkes

          MEMORANDUM OPINION

          LETICIA HINOJOSA, JUSTICE.

         Appellant Salvador Zavala appeals the trial court's order dismissing his lawsuit against appellees, Carlos Boliva, Corey Furr, Rafael Menchaca, Tracy Brown, Jessica Garcia, Sharon Ruiz and Rose Guerra as frivolous for failure to comply with Chapter 14 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 14.010(a). In two issues, Zavala argues that: (1) the trial court improperly dismissed his claim without a hearing; and (2) Judge Joel Johnson did not have the authority to rule on the case because Zavala timely and properly filed an objection to the assignment of his case to an associate judge. We affirm.

         I. Background

         Zavala is a Texas Department of Criminal Justice (TDCJ) inmate at the McConnell Unit in Beeville, Texas. Zavala alleges that a corrections officer seized Zavala's commissary bag as contraband and that appellees "refused to return the property on Plaintiff's demand via I-60s, Step One and Step Two grievances." On October 5, 2017, Zavala filed a lawsuit against appellees for theft of his commissary bag. In his petition, Zavala included an objection to the assignment of his case to an "associate judge."

         On October 13, 2017, Presiding Judge Janna Whatley assigned Judge Joel Johnson, a senior judge, to hear Zavala's case pursuant to Chapter 74 of the Texas Civil Practice and Remedies Code. See id. ch. 74. The Texas Office of the Attorney General filed an amicus curiae motion to dismiss on behalf of appellees, arguing that Zavala failed to comply with Chapter 14 of the Texas Civil Practice and Remedies Code and that his claims were frivolous. Id.

         On March 26, 2018, the trial court entered an order dismissing as frivolous all claims against appellees for failure to comply with Chapter 14 of the Texas Civil Practice and Remedies Code. This appeal followed.

         II. Objection to an Associate Judge

         In his second issue, which we address first, Zavala contends that the trial court lacked subject matter jurisdiction to render an order to dismiss. Specifically, Zavala argues that Judge Johnson should not have been able to rule on Zavala's case because Zavala properly objected to the assignment of his case to an associate judge.

         A. Standard of Review and Applicable Law

         Whether a trial court has jurisdiction is a question of law that we review de novo. Harris County v. Annab, 574 S.W.3d 609, 612 (Tex. 2018). Associate judges are appointed by a judge of a district or statutory county court to a full-time or part-time position serving a particular court. See Tex. Gov't Code Ann. §§ 54A.101, 54A.102. A person does not have to have been an elected judge to qualify as an associate judge. See id. § 54A.103. The ruling of an associate judge is subject to de novo review. See id. § 54A.115. A party can file a written objection concerning the appointment of an associate judge hearing a trial on the merits or presiding at a jury trial no later than the tenth day after the party receives notice that the associate judge will hear the trial. Id. § 54A.106.

         On the other hand, assigned judges are active, retired or senior judges. See id. § 74.054. An assigned judge may not hear a case if a party submits a timely objection no later than seven days after the party receives actual notice of the assignment or before the first hearing of the trial. See id. ยง 74.053. A timely objection to a judge "assigned" under Chapter 74 has automatic effect ...


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