Right to New Judge Asserted in HD 73 Election Contest
Mandamus Requested from Third Court of Appeals
April 24, 2008
Today, State Representative Nathan Macias filed a Writ of Mandamus Petition and a Request for Temporary Relief with the Third Court of Appeals in Austin. Macias is asking the Third Court of Appeals to reverse assigned visiting Judge James Clawson’s decision to remain as the presiding trial judge over the election contest, contrary to Macias’ objection to Clawson’s assignment. Because of the extremely tight schedule for the election contest, Macias is also asking the Third Court of Appeals to expedite their ruling and stay the trial court proceedings until the Third Court rules.
Macias said, “Under the law, Chapter 74 of the Texas Government Code, every civil litigant has the right to one objection of an assigned visiting judge. It is simply a matter of right, not cause, and I trust the panel that hears the appeal will agree with our position.”
Presiding Judge of the region, the Honorable B. B. Schraub assigned Judge Clawson to hear this case because the sitting district judges of Comal County are statutorily disqualified from hearing the election contest.
Former District Judge and Macias’ lead counsel, Rene Diaz said, “We believe the assignment of Judge Clawson was a normal assignment made under the authority of the Government code, and objections to an assigned judge under Chapter 74 of the Government Code are routinely granted every day throughout the Texas civil court system. There simply is no recognized exception under the law for election contests.”
Diaz added, “If our position is correct, then all of Judge Clawson’s rulings at this point are null and void, and the case would automatically have to be tried all over again. Nobody wants that to happen. This trial is too important; therefore, we determined it best to seek a ruling from the Third Court of Appeals on this matter.”
Currently the election contest trial is set for May 19th, with a pre-trial hearing set for May 14th. It is unknown at this time exactly what effect the Third Court of Appeals ruling will have on the timeline of the trial, although Macias asked the Third Court to expedite their ruling on the Mandamus appeal.
Macias concluded, “We are anticipating a positive result both here at the appellate court and in the ultimate outcome of the election contest.”