In re Orsagh, 151 S.W.3d 263 (Tex. App.—Eastland 2004, no pet.).
Judge, before taking the bench, filed an application to probate a
will for his client in a constitutional county court. After Judge became
the judge of this county court, the validity of the will was contested.
Although Article V, § 11 of the Texas Constitution prohibits Judge from
presiding over the case, Judge entered an order transferring the case to
the district court under Prob. Code § 5(b). Over the next several years,
the district court issued orders in the case. An individual who was both
a debtor and creditor of the estate now claims that Judge had no
authority to issue the transfer order and that all of the district court
orders are consequently void.
The appellate court agreed that Judge had no authority to issue the
transfer order because he had served as an attorney in the case and
conditionally granted a writ of mandamus. The district court must
withdraw its orders and remand the case to the constitutional country
court.
The court explained that Article V, § 16 of the Texas Constitution
provides two methods for handling a disqualification: (1) the parties
may appoint a proper person to try the case, or (2) a competent person
may be appointed to try the case in the manner prescribed by other
applicable law (e.g., Government Code § 26.012). Judge’s issuance of the
transfer order did not fall into either of these options. The parties
did not agree to substitute the district court judge and the issuance of
a transfer order was a discretionary act which is, under the Texas
Constitution, void and thus not a method “prescribed by law.”
Moral: A county judge who is disqualified should follow the procedures
in the constitution or the Government Code to resolve the situation.