In Re the State of Texas Ex Rel. Brian W. Wice, Relator

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-93,089-01

In re STATE OF TEXAS, ex rel. BRIAN W. WICE, Relator

ON APPLICATION FOR A WRIT OF MANDAMUS
AGAINST THE FIRST COURT OF APPEALS

KELLER, P.J., filed a dissenting opinion in which KEEL, J., joined.

DISSENTING OPINION

A district judge in Collin County recused himself from this case without agreeing to have

another judge hold court for him. The presiding judge of a different administrative region then

entered an order furnishing a new judge (Judge Gallagher), for a specific time period, to the region

encompassing Collin County. The presiding judge of the Collin County region then appointed Judge

Gallagher to this case. But the time authorized by the order from Judge Gallagher’s presiding judge

for Judge Gallagher to sit in the Collin County region expired before he ruled on a motion to change

venue. Was Judge Gallagher nevertheless empowered to remain on this case under the theory that

he was holding court for another judge pursuant to the Texas Constitution? Did the Texas
WICE DISSENT— 2

Constitution authorize the presiding judge of the Collin County region to agree, on behalf of the

Collin County district judge who recused himself, to allow a district judge in a different region to

hold court in Collin County? The Court answers those questions “yes,” implying that the regional

presiding judge stands in the shoes of the Collin County judge. But the Court cites no authority for

that proposition and acknowledges that it is “harmonizing” various sources of law. I would deny

mandamus relief because mandamus does not lie in criminal cases to settle unsettled law.

The relevant provision of the Texas Constitution says: “And the District Judges may

exchange districts, or hold courts for each other when they may deem it expedient, and shall do so

when required by law.”1 There is authority suggesting that this provision allows two district judges,

from anywhere in the state, to agree that one of them will sit in the other’s district to preside over

cases.2 But that is not what happened here.3 There was no agreement between Judge Gallagher and

the Collin County district judge about Judge Gallagher holding court in Collin County. The regional

presiding judge for the region including Collin County was not the elected judge of the district in the

1
TEX. CONST. art. V, § 11.
2
See Sanchez v. State, 365 S.W.3d 681 (Tex. Crim. App. 2012) (“district court judges are
allowed to exchange benches without geographical restrictions”); Randel v. State, 153 Tex. Crim.
282, 296, 219 S.W.2d 689, 697 (1949) (“The expression, ‘when they deem it expedient,’ as
contained in the constitution and in the statute above mentioned, confers upon district judges broad
discretionary powers to exchange benches or hold court for each other. No limitation as to time,
place, or occasion when the exchanges of benches might occur has been fixed.”). But see Pinnacle
Gas Treating, Inc. v. Read, 160 S.W.3d 564, 566 (Tex. 2005) (“the right of district judges to
exchange benches assumes that they already have concurrent jurisdiction over the same cases in a
common county”).
3
Cf. Lopez v. State, 120 Tex. Crim. 393, 394, 49 S.W.2d 462, 462 (1932) (“The record
shows that because of the disqualification of the regular judge of the district, an exchange of judges
was agreed upon, and that the judge of the One Hundred and Third Judicial District of Texas
presided upon the trial of this case. We see no irregularity or error in this procedure. In case of an
exchange of benches by regular judges, no formal qualification upon exchange is necessary.”).
WICE DISSENT— 3

Collin County case. The Constitutional provision that says when “they” may deem it expedient

suggests mutual consent by the two district judges involved. The Texas Constitution does not

expressly allow a regional presiding judge to vicariously agree, on behalf of a recused district judge,

to allow another district judge to sit in the recused judge’s place. Statutory provisions do give the

regional presiding judge the authority to assign another judge after disqualification or recusal, but

then the statutory scheme must be followed.

The statute provides:

(a) A presiding judge from time to time shall assign the judges of the administrative
region to hold special or regular terms of court in any county of the administrative
region to try cases and dispose of accumulated business.

(b) The presiding judge of one administrative region may request the presiding judge
of another administrative region to furnish judges to aid in the disposition of
litigation pending in a county in the administrative region of the presiding judge who
makes the request.4

The statute confers authority–via subsection (a)–on the presiding judge of an administrative

region to assign judges in his region to hold court in any county in his region. The statute does not

purport to confer freestanding authority to assign judges from other regions to cases in the presiding

judge’s region. But subsection (b) allows the presiding judge of one administrative region to furnish

judges to another administrative region. Once a judge has been “furnished” to another region, that

judge can then be assigned to a case by the presiding judge of the transferee region. At least

arguably, the authority conferred by subsection (b) to “furnish” judges confers power on the

transferring presiding judge to dictate the outer limits of the time the furnished judge will be

available in the transferee region. Under that construction, an order of the regional presiding judge

4
TEX. GOV’T CODE § 74.056(a), (b) (emphasis added).
WICE DISSENT— 4

of the transferee region cannot authorize a period of time longer than that allowed by the order of

the regional presiding judge of the transferring region.5

Subsection (b) says that a presiding judge “may” request a presiding judge from another

region to furnish a judge. The Court says that subsection (b) is permissive because it uses the word

“may.” But the word “may” is sometimes–perhaps more typically–used to authorize a judge to act,

rather than to mean that he can choose whether or not to act.6 Subsection (b) is the only thing that

gives a regional presiding judge the authority to use a judge from outside his region. Without

subsection (b), all the presiding judge could do is shift around judges within his region (under the

explicit language of subsection (a)).

Also, the Court seems to conflate the constitutional and statutory requirements. The Court

says that a regional presiding judge has the power under statute to assign a judge to any bench in his

region. The Court then says that this statutory authority cannot detract from a district judge’s

constitutional authority and then concludes that once an active elected district judge is assigned to

a case, that assignment cannot end without that district judge’s consent. But that is not what the

statute or the Constitution says. The statute allows a judge to be assigned to a particular district court

even without the consent of the judge of that district court, but nothing in the statute or the

constitutional provision purports to allow an assignment to continue without consent of the judge

of that court after the period of the assignment—or the period for which he was furnished to the

5
The Court refers to three “assignment” orders, but it would be more precise to say that there
are two “furnishing” orders from Judge Evans (Judge Gallagher’s regional presiding judge) and one
“assignment” order from the Judge Murphy (the regional presiding judge over the region that
encompasses Collin County).
6
Stredic v. State, 663 S.W.3d 646, 655 (Tex. Crim. App. 2022).
WICE DISSENT— 5

region if that happened—has expired. The Constitutional provision appears to require mutual

consent—one district judge can sit for another if both consent. Here, mutual consent was lacking.

Even assuming that Judge Gallagher agreed, there was no consent from the elected district judge in

Collin County. The question is whether the regional presiding judge can consent on the Collin

County district judge’s behalf, and that question is unsettled—or at least was until today.

When the order furnishing Judge Gallagher had expired, he could have sought consent to

continue to sit on the case from the Collin County district judge, who, incidentally, was no longer

Judge Oldner. Had he received the new Collin County district judge’s consent, he would have

indisputably secured the authority to sit on the case, and I would not be dissenting today. But he did

not do that.

Even when the facts are undisputed, mandamus will not lie in a criminal case to resolve a

hotly-contested unsettled question of law.7 An issue of first impression can nevertheless be one of

“settled” law if based on an unambiguous statute.8 The same could probably be said for an

unambiguous constitutional provision. But as explained earlier, the constitutional provision does

not unambiguously confer on a regional presiding judge the authority to vicariously agree, on behalf

of a recused district judge, to allow another judge to hold court for the recused judge. An issue can

also be considered “settled” if “the combined weight of our precedents clearly establishes the

proposition of law on which relief is predicated.”9 But the Court cites no case supporting its

conclusion that a regional presiding judge can vicariously agree to allow the holding of court by a

7
Simon v. Levario, 306 S.W.3d 318, 321 (Tex. Crim. App. 2009).
8
In re State ex rel. Ogg, 618 S.W.3d 361, 363 (Tex. Crim. App. 2021).
9
Id. (internal quotation marks omitted).
WICE DISSENT— 6

different district judge under the Texas Constitution. Because the law is unsettled, mandamus relief

is inappropriate.10

I respectfully dissent.

Filed: June 14, 2023
Publish

10
The State has other grounds for mandamus relief, but they are also without merit. The
Court has rejected the State’s law-of-the-case argument, and the Court’s discussion of the
preservation argument suggests that it is also without merit. Because this is a dissent, I do not further
detail my reasoning on these grounds.