Opinion
NO. 09-20-00148-CV
07-30-2020
IN RE WAYNE LEWOCZKO AND ANDREA FAHRENTHOLD
Original Proceeding
418th District Court of Montgomery County, Texas Administrative Action
MEMORANDUM OPINION
Wayne Lewoczko and Andrea Fahrenthold, Relators, filed a mandamus petition through which they seek to compel the Honorable Tracy A. Gilbert, the presiding judge of the 418th District Court, to vacate an order signed in his capacity as the local administrative district judge for Montgomery County, Texas. On April 23, 2020, Judge Gilbert signed an order removing Relators as members of the Montgomery County Appraisal Review Board ("ARB"). Relators contend they were deprived of due process when Judge Gilbert removed them from their paid appointed positions before their terms expire on December 31, 2020, without providing a notice and an opportunity to respond.
Jurisdiction
In his response, Judge Gilbert contends this Court lacks mandamus jurisdiction over him concerning actions made in his capacity as the local administrative judge. This Court may issue a writ of mandamus against a judge of a district court in the Ninth Appellate District of the State of Texas. See generally Tex. Gov't Code Ann. § 22.221. Relators argue that the general grant of mandamus jurisdiction in section 22.221 of the Government Code applies to actions taken by a judge acting in his capacity as the local administrative district judge because only a district judge presiding in district court in the county may act in that capacity. See Tex. Gov't Code Ann. §§ 22.221, 74.091. Respondent argues the general grant of writ power is insufficient to provide mandamus jurisdiction because Section 6.41(f) of the Tax Code allows the ARB by majority vote or the local administrative district judge's designee to remove an ARB board member. See Tex. Tax Code Ann. § 6.41(f). He argues it would lead to an absurd result to allow mandamus review of a removal by a district court judge when it is unavailable to redress removal by majority vote of the ARB. He contends acts of a local administrative district judge, like the acts of a presiding judge of a regional administrative district, are not subject to review under section 22.221.
A district judge acting in his capacity as a presiding judge of an administrative judicial region pursuant to sections 74.045 and 74.046 of the Government Code is not considered to be a district judge for purposes of the exercise of jurisdiction to issue a writ of mandamus under section 22.221 of the Government Code because a judge appointed to serve as a presiding judge of a regional administrative region has distinct qualifications and duties from a district judge. In re Hettler, 110 S.W.3d 152, 154 (Tex. App.—Amarillo 2003, orig. proceeding). A local administrative district judge has additional duties but, unlike a regional presiding judge, a local administrative district judge must be a district judge. See Tex. Gov't Code Ann. §§ 74.091-.092; see also Tex. R. Jud. Admin. 9. Furthermore, the local administrative judge's duties primarily relate to administration of the district courts of the county in which the local administrative district judge presides. See Tex. Gov't Code Ann. § 74.092. Other duties include granting permission to file a lawsuit to a vexatious litigant, which expressly allows for mandamus, and the statute at issue in this case, which does not mention mandamus. See Tex. Civ. Prac. & Rem. Code Ann. § 11.102(f); Tex. Tax Code Ann. § 6.41.
Section 22.221 limits our jurisdiction to issue a writ of habeas corpus to matters concerning a person restrained by virtue of a contempt order in a civil case. See Tex. Gov't Code Ann. § 22.221(d). Unlike the grant of habeas corpus jurisdiction, our power to issue a writ of mandamus to a judge of a district court in our district is not limited to correcting actions taken by a judge in a case, civil or criminal. See id. § 22.221(b). Furthermore, section 22.221 does not limit our writ power to the acts of a district judge in the performance of a judicial function. See id.
Because we see no compelling reason to read language into section 22.221 that is not contained in the statute, we conclude that we may exercise our original jurisdiction to determine whether mandamus relief is warranted against Judge Gilbert in his capacity as the local administrative district judge for Montgomery County. However, we may issue a writ of mandamus only when the respondent has clearly abused his discretion and the complaining party has no other adequate remedy. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). The adequacy of an available remedy must be determined by balancing the benefits of mandamus review against the detriments. In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008) (orig. proceeding). Court administration by its nature involves the exercise of broad discretion. See Clanton v. Clark, 639 S.W.2d 929, 931 (Tex. 1982) (A court is given wide discretion in managing its docket.).
Respondent removed Relators from the ARB because they are married. Effective January 1, 2020, Section 6.412 of the Texas Tax Code makes a person ineligible to serve on an appraisal review board if the person is related within the second degree by affinity to a member of the appraisal review board. See Tex. Tax Code Ann. § 6.412(a)(3)(B). Relators argue Judge Gilbert did not have the authority to remove them from the ARB because a savings provision in the bill that amended section 6.412 states that section 6.412, as amended, does not affect the eligibility of a person serving on an appraisal review board immediately before January 1, 2020, to continue to serve on the board for the term for which the member was appointed. See Act of May 25, 2019, 86th Leg., R.S., ch. 944, section 100, 2019 Tex. Sess. Law Serv. 2665, 2673, 2720. Respondent claims the Legislature proclaimed in the bill analysis that the changes to section 6.412(a) were nonsubstantive, but the bill analysis was drafted by the Senate Research Center and the phrase "Makes nonsubstantive changes" merely alerts the reader to grammatical alterations to the subsection that do not appear in the bill analysis.
The amendment to section 6.412 was a substantive change that, effective January 1, 2020, made a person ineligible to serve on the ARB if that person is married to a member of the ARB. See 2019 Tex. Sess. Law Serv. at 2673. The savings clause in the enacting legislation allowed Relators to serve out their existing terms, but the savings clause neither continued the prior law nor prohibited removal for nepotism. See id. at 2720. The language in the savings clause is permissive, allowing members to complete their terms without mandating that they do so. Id. Section 6.41(f) of the Tax Code authorized the local administrative district judge to remove an ARB member for a violation of Section 6.412. See Tex. Tax. Code Ann. § 6.41(f). Although they could have stayed on the ARB for the remainder of their terms, we conclude that Judge Gilbert had the discretion to remove Relators from the ARB because they are married.
Due Process
Relators assert they were denied due process because Respondent removed them from the ARB without providing a hearing or other due process. Before he signed the order, Respondent called Fahrenthold, placed her under oath, and elicited from her the date and fact of her marriage to Lewoczko. Respondent did not speak with Lewoczko. Relators argue meaningful process would have included allowing them to obtain counsel, present evidence, and examine witnesses. Respondent argues that no additional process was required because there are no facts in dispute regarding the status of Relators' marriage.
Due process requires, at a minimum, and an opportunity to be heard at a meaningful time and in a meaningful manner. Mathews v. Eldridge, 424 U.S. 319, 333 (1976). We consider the private interest affected, the risk of erroneous deprivation, and the probable value of any substitute procedural safeguards. Id. at 334-35. Post-deprivation process may be sufficient in circumstances in which an important governmental interest is accompanied by a substantial assurance the deprivation is not baseless or unwarranted. Gilbert v. Homar, 520 U.S. 924, 930-31 (1997). Due process requires a pre-termination opportunity to respond followed by a post-termination hearing when public employees have a constitutionally-protected property interest in their positions. But citing Harris County Appraisal District v. Texas Workforce Commission, Relators argue a pre-removal hearing was required because they held paid positions that required statutory grounds for removal. See 519 S.W.3d 113, 127 (Tex. 2017) (holding ARB members are employees for purposes of the unemployment compensation act). Respondent argues that his telephone call to Fahrenthold satisfied due process because the existence of a marriage relationship between Fahrenthold and Lewoczko was the sole fact issue to be determined, but our construction of the statute and its savings provision makes nepotism a permissive cause for removal, not a mandatory one.
Fahrenthold received pre-removal notice and an opportunity to respond, but Respondent provided no pre-removal opportunity for Lewoczko to present to Respondent the reasons why he and Fahrenthold should not both be removed from the ARB. We conclude that Respondent did not have the authority to remove Lewoczko from the ARB without any pre-removal notice. We lift our temporary stay of the trial court's removal order and deny the petition for a writ of mandamus as to Fahrenthold but conditionally grant the mandamus petition as to Lewoczko. We are confident the trial court will vacate the order removing Wayne Lewoczko from the Montgomery County Appraisal Review Board. A writ shall issue only in the event he fails to comply.
PETITION CONDITIONALLY GRANTED IN PART; DENIED IN PART.
PER CURIAM Submitted on June 15, 2020
Opinion Delivered July 30, 2020 Before McKeithen, C.J., Horton and Johnson, JJ.