WHEN THE PRESIDING JUDGE BECOMES A FORMER JUDGE, WHO SIGNS FINDINGS OF FACT?

Ad Villarai, LLC v. Pak
Supreme Court of Texas, No. 16-0373 (May 12, 2017)
Per Curiam (Opinion linked here)

You try your case to the court. It’s complicated and close. You win—Huzzah! But your opponent requests findings of fact under Rule 296 and, before your judge issues those findings, he leaves office, having lost in the primary or general election. Now what? In the absence of written findings, an appellate court sometimes may presume the trial court made all findings necessary to support its judgment. But when material facts are truly disputed, the “preferred remedy is for the appellate court to direct the trial court to file the missing findings.” If the trial court fails or refuses to do so, “the appellate court must reverse the trial court’s judgment and remand the case for a new trial.” When the judge who heard your trial is no longer around, who can issue those missing findings so you can avoid trying the case all over again? The original—now former—judge? His successor? No one?

In Villarai, the departing judge failed to issue the requested findings before he left office. His successor tried to remedy the situation by signing findings. But, the Supreme Court said, the successor—who heard none of the evidence—had no authority to issue those findings. Rule 18 allows a successor judge to decide pending motions when her predecessor “dies, resigns, or becomes unable to hold court.” And § 30.002(b) of the Civil Practice and Remedies Code authorizes a successor judge to file findings if her predecessor dies before making findings of his own. But a judge who leaves office because he lost an election has not died, resigned, or become disabled within the meaning of Rule 18 or § 30.002(b), and so neither Rule 18 nor § 30.002(b) grants the successor judge the power to issue the requested findings in that situation.

Nevertheless, the Court explained, there is a solution—if the former judge cooperates. Section 30.002(a) of the Civil Practice and Remedies Code provides, “If a … judge’s term of office expires … during the period for filing findings of fact and conclusions of law, the [departing] judge may … file findings of fact and conclusions of law in the case” even after leaving the bench. Timing is crucial here. If the time for filing findings expires before the departing judge leaves office, § 30.002(a) does not apply, and “there would be no judges with power to file findings.” If the clock is still running when the departing judge’s term ends, however, he may be asked to file the requested findings. And if he complies, the findings he files are effective, and the case may proceed on appeal. If the former judge fails or refuses to file findings as requested, however, now that he’s no longer on the bench, the appeals court must remand for a new trial.