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Zavala v. De Hoyos

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

July 18, 2019

SALVADOR ZAVALA, TDCJ NO. 1447730, Appellant,
v.
JESUS R. DE HOYOS, ET AL., Appellees.

          On appeal from the 156th District Court of Bee County, Texas.

          Before Chief Justice Contreras and Justices Benavides and Longoria

          MEMORANDUM OPINION

          DORI CONTRERAS CHIEF JUSTICE.

         Appellant Salvador Zavala appeals a judgment dismissing his claims against appellees Jesus R. De Hoyos, Sven Strack, Placido Samaniego, Rafael Menchaca, Corey Furr, P. Chapa, "GR. ID#1950," "GR. ID#2197," and "TDCJ-CID." By two issues, appellant argues that (1) the trial court abused its discretion when it dismissed his suit without a hearing, and (2) the trial court lacked subject matter jurisdiction to dismiss the case because appellant objected to the appointment of an associate judge. We affirm.

         I. Background

         Appellant is an inmate housed in the McConnell Unit of the Texas Department of Criminal Justice in Beeville, Texas. On April 24, 2018, appellant filed suit against appellees alleging causes of action for breach of contract, equitable relief, conversion, "participatory liability," conspiracy, declaratory relief, and injunctive relief. Appellant's petition alleged that appellees had stolen and damaged $160 worth of his property. In his petition, appellant objected to the referral of his case to an associate judge.[1]

         By written order, the trial court: (1) invited the Texas Attorney General's Office (the AG's office) to file an amicus curiae advisory; and (2) assigned Judge Joel Johnson, a senior judge, to hear Zavala's case pursuant to chapter 74 of the Texas Government Code. See Tex. Gov't Code Ann. ch. 74. The AG's office filed an amicus curiae advisory arguing Zavala failed to comply with Chapter 14 of the Texas Civil Practice and Remedies Code. Without holding a hearing, the trial court dismissed appellant's claims.[2] This appeal followed.

         II. Appointment of Associate Judge

         By his second issue, which we address first, appellant argues that the trial court lacked subject matter jurisdiction to dismiss the case because appellant objected to the appointment of an associate judge.

         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, and the ruling of an associate judge is subject to de novo review. See id. §§ 54A.103, 54A.115. A party can file a written objection to any 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.

         Assigned judges, on the other hand, 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. Id. § 74.053. A timely objection to a judge "assigned" under chapter 74 has automatic effect and any subsequent order by the assigned judge is void. In re Canales, 52 S.W.3d 698, 701 (Tex. 2001) (orig. proceeding).

         Here, appellant filed his objection to an associate judge with his petition. However, Judge Johnson is not an associate judge. The record makes clear that Judge Johnson is instead a senior judge assigned pursuant to chapter 74 of the government code. See id. §§ 54A.101-103, 74.054. Because Zavala did not timely object to the assignment of a senior or assigned judge, we conclude that Judge Johnson had jurisdiction to hear the case and that his orders are not void.

         We overrule appellant's second issue.

         III.Dismissal of ...


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