Estate Administration

Disqualification of Judge

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.