After reading Combs v. Kaufman County, I can’t help but wonder if there is something missing from the Court’s opinion or if the opinion contains an error.  Nontheless, I was surprised to learn about a rarely-invoked provision of the Texas Constitution that allows parties to a suit to pick their own judge.

Article V, Section 16 of the Texas Constitution  provides that when the judge of a county court is disqualified, "the parties interested may, by consent, appoint a proper person to try said case."  In Combs, the presiding judge of the Kaufman County Constitutional Court apparently disqualified herself from hearing a guardianship for Wallace Darst.  [Note, the opinion uses the term "recused," which has a different legal meaning, but from the facts, it appears the Court meant to use the term "disqualified"].   The parties subsequently asked Judge Glen Ashworth, who was then district judge for the 86th Judicial District Court, to preside over the guardianship.  Here, the opinion is somewhat confusing or inconsistent as to whether Judge Ashworth merely presided as judge for the constitutional county court or whether the case was treated as having been transferred to the 86th District Court, with Judge Ashworth presiding as judge of that court.  Judge Ashworth subsequently awarded the guardian (Combs) a fee of $143,168.95 and that order was not appealed.

Combs later brought suit to recover the amount awarded by Judge Ashworth, and the County moved for dismissal for lack of subject-matter jurisdiction, asserting that Judge Ashworth never acquired jurisdiction and therefore his orders were void.  The County asserted that the Probate Code mandated transfer of the case to a visiting probate judge.  Without addressing the County’s argument as to whether a transfer was required, the Dallas Court of Appeals held that that the district court had subject matter jurisdiction over the guardianship as a result of operation of Article V, Section 16 of the Texas Constitution.  The opinion is available at this link.

In my review of this opinion, I ran across another case in which the disqualified judge signed an order transferring the case to another judge, and in that case the court of appeals concluded that the transfer order was invalid because the disqualified judge had no power to act. See In re Orsagh, 151 S.W.3d 263 (Tex. App.–Eastland 2004, orig. proceeding).