Judge George Gallagher is off the case.
Attorney General Ken Paxton won’t have to deal with the Dallas judge any more, after the Fifth District Court of Appeals issued an opinion Tuesday ruling that Gallagher could no longer preside over the case.
The appeals court ruled that Gallagher lost his authority over the case when he transferred it to Harris County in April.
Therefore, Gallagher’s decision to set trial for September is void, as an “abuse of discretion.”
“The Harris County district courts have jurisdiction over all further proceedings in these cases as a matter of law,” the court ruled.
The writ of mandamus represents a reputational blow for Gallagher, as courts only grant mandamus when an official has been disregarding plain law.
The law in Paxton’s case is “clear,” the appeals court ruled. It requires “the written consent of…the defense attorney, and the defendant” for a judge to retain a case on his docket after a transfer.
Since Gallagher needed Paxton’s permission to continue on the case, he should have backed off when Paxton declined to grant it, the court ruled.
“When a court signs an order changing venue, jurisdiction immediately and automatically vests in the transferee court,” the court ruled.
“The Texas Constitution does not allow the 416th Judicial District Court to sit outside of the Collin County seat, McKinney, absent express statutory authority,” the court ruled. “The only authority by which this may occur is article 31.09, which requires consent of the parties. Thus, absent effective application of article 31.09, respondent (Gallagher) may not continue to preside over the cases or utilize the services of the court reporter, court coordinator, or clerk of the court of original venue. Relator (Paxton) has unequivocally stated that he did not consent to respondent continuing to preside over the cases or otherwise acting in accordance with article 31.09, and no written consent appears in our record. Accordingly, under the plain language of the statute, respondent is without authority to continue to preside over the cases and is also without authority to issue orders or directives maintaining the case files in Collin County. Consequently, all orders issued by respondent after he signed the April 11, 2017 transfer order are void.”
Before 1995, judges never stayed on a case after a transfer, the court said. The one statute that now allows them to do so is the one that requires Paxton’s consent.
The court-appointed attorneys who’ve been pursuing Paxton argued that Gallagher was somehow exempt from the requirement because he was a visiting judge, but the court found the argument unpersuasive.
“The State does not explain how the general language…permitting appointment of judges between administrative regions somehow supplants the specific language” about transfers, the court ruled.
Jon Cassidy can be reached [email protected]