The typical civil case in Texas state court is heard by the district court judge of that court. But various Texas statutes allow a person, other than the elected district court judge, to preside over the case with various limitations. This article describes the possibility of—and potential limits to—seeking the appointment of a “special judge” under Government Code Section 24.004.

This topic is not purely theoretical. Given the realities of the COVID-19 pandemic on normal functioning of the courts in the last couple years, some lawyers have sought alternative ways to resolve their clients’ matters. In response to this reality, one former Justice of the First Court of Appeals recently highlighted that parties could consider, in addition to “[t]he ordinary tools of mediation and consensual arbitration,” “the appointment of a special judge” under Chapter 151 of the Texas Civil Practice and Remedies Code. Michael Massengale, A Texas Statute Could Help Prevent Backlog In State Courts, Law360 (Apr. 8, 2020).

This article seeks to highlight another potentially relevant statute—Section 24.004 of the Government Code. While this statute is rarely utilized, it may only be available if the district court judge is constitutionally disqualified.

Section 24.004 allows the parties to “agree on a special judge for the trial of a particular case . . . .” Tex. Gov’t Code § 24.004. The ability of the parties to agree to a particular judge is likely to be attractive to many practitioners.

There is a possibly significant limitation, however. If the parties reach such an agreement, the clerk must, among other things, enter into the minutes of the court a “record showing that the judge of the court is disqualified to try the case.” Id. § 24.004(a).

No appellate decision has interpreted this part of the modern statute. It may be the case that the district court judge is “disqualified to try the case” merely because the parties agreed to a special judge. Cf. id.

That view, however, appears to be the minority one. One commentator believes that “[t]his provision appears to expressly require that the [district court] judge be disqualified before a special judge is appointed . . . .” Paul Davis, Appendix B—Trial by Special Judge: Civil Practice & Remedies Code Chapter 151, 2020 TXCLE-AFL 2 APP B, 2020 WL 5607883 (2020); see also Roy W. McDonald & Elaine A. Grafton Carlson, Special Judges: Powers & Duties, 1 McDonald & Carlson Tex. Civ. Prac. § 3:105 (2020) (“[T]he special judge serves because of the disqualification of the regular judge.”).

A decision interpreting a predecessor version of the statute allowing special judges in county courts held that when the county court judge was not constitutionally disqualified, “the special judge was without authority to act and his judgment rendered herein is a nullity and void.” Johnson v. Willacy Cty. Water Control & Improvement Dist. No. 1, 136 S.W.2d 877, 878-89 (Tex. Civ. App.—San Antonio 1940, no writ).

Notably, the predecessor statute was more explicit in only allowing the appointment of a special judge when the county court judge was constitutionally disqualified. See Tex. Rev. Civ. Stat. 1930 (“When a judge of the county court is disqualified, the parties may, by consent, appoint a proper person to try such case.”).

The language in Section 24.004 mirrors the constitutional language allowing parties to consent to a special judge if the district court judge is disqualified:

Tex. Const. Art. V, § 11; see also id. Art. V, § 16 (similar for county courts).

These constitutional provisions further support the view that a special judge is only allowed when the district court judge is constitutionally disqualified. See Elizabeth M. Bosek, Special Judges: Special Judge Defined; Statutory & Constitutional Authorization, 47 Tex. Jur. 3d Judges § 33 (2021) (The constitutional and statutory provisions for a special judge “are strictly construed” and “in the case of a conflict among them, the constitutional provisions control.”).

Notably, unlike Chapter 151 of the Texas Civil Practice and Remedies Code, if a special judge is appointed under Section 24.004, there does not appear to be any provision prohibiting a special judge from presiding over a jury trial. “[G]enerally speaking, the special judge has all the authority of a regular judge with respect to cases that properly come before him or her or, at least, [those] necessary to enable the special judge to transact the business of the court.” Id. § 41; see also McDonald & Carlson, 1 McDonald & Carlson Tex. Civ. Prac. § 3:105.

In sum, Section 24.004 allows for a special judge who may preside over a jury trial in place of the district judge. This statute, however, may be limited to situations in which the district judge is constitutionally disqualified. If practitioners seek to utilize this statute, future appellate decisions will likely address the interpretation of the modern special judge statute.