IN THE SUPREME COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 06-0314

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In re the Honorable = Errlinda=20 Castillo, Justice,

The Court of = Appeals for the=20 Thirteenth District of Texas, in her Official Capacity, = Relator

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On Petition for Writ of Mandamus and = Prohibition

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Chief Justice Jefferson = delivered the=20 opinion of the Court.

In = this=20 original proceeding, Justice Errlinda Castillo of the Thirteenth Court = of=20 Appeals seeks writs of mandamus and prohibition ordering the Thirteenth = Court to=20 vacate an exit plan devised for her by the other justices of that court = after=20 Justice Castillo lost her reelection bid. We deny the petitions.

In = November=20 2000, Justice Castillo was elected as a justice of the Thirteenth Court = of=20 Appeals for a term running from January 1, 2001 through December 31, = 2006.=20 Although she sought election to a second term, she lost her reelection = bid to a=20 challenger in the Democratic Party primary on March 7, 2006. Shortly = thereafter,=20 on April 6, 2006, the Thirteenth Court held a judges=92 meeting which = Justice=20 Castillo did not attend. In her absence, the court decided that, after = May 31,=20 2006, Justice Castillo would not be assigned to the court=92s panels[1] to hear appeals; instead, a = visiting=20 judge would sit in her place. As a result, Justice Castillo would not = receive=20 initial writing responsibility for opinions in appeals heard by the = Thirteenth=20 Court. Rather, she would be assigned to original proceedings, with other = members=20 of the court rotating on the original proceedings panel with her. = Justice=20 Castillo would also act as the motions judge between June and the end of = her=20 term.

Justice=20 Castillo filed a petition seeking writs of mandamus and prohibition, = asking that=20 we: (1) prohibit the Thirteenth Court from excluding her from case = assignments=20 after May 31, 2006; (2) order the court to permit her to draw for panel = and=20 writing assignments; and (3) prohibit the court from assigning a = visiting judge=20 in her place. She argued that the exit plan infringed on her right to = complete=20 her term as justice on the court of appeals and, in doing so, violated = the Texas=20 Constitution, state statutes, and the court of appeals=92 administrative = rules.

After=20 Justice Castillo filed her petition, the Thirteenth Court held another = meeting,=20 this one attended by Justice Castillo. At this May 3 meeting, the court=20 rescinded the April 6 plan and implemented a modified exit plan.[2] Under the modified plan, = Justice=20 Castillo would participate in the draw for panel assignments for the = summer and=20 fall terms and would be eligible to draw for majority-opinion = assignments for=20 the summer term. The court withdrew its request for the assignment of a = visiting=20 judge to serve in Justice Castillo=92s place. Beginning in the fall = term, however,=20 neither Justice Castillo nor Justice Hinojosa [3] would be assigned initial=20 responsibility for drafting majority opinions. According to the = Thirteenth=20 Court, Justice Castillo=92s exclusion was necessary because she was = allegedly=20 thirty-eight cases behind on her work. Justice Castillo hotly disputed = this=20 contention, noting that the thirty-eight matters assigned to her are a = =93docket=20 of current cases.=94 Justice Castillo asserted that, as of June 2, 2006, = she had a=20 docket of no more than eleven current cases that she expected to =93zero = out=94 by=20 August 31, 2006.

As = additional=20 support for the modified plan, the court observed that Justice = Castillo=92s=20 remaining tenure on the court involved significantly less time than the=20 approximately seven months it normally takes the court to issue an = opinion in a=20 civil case. Nonetheless, the court decided that if Justice Castillo = completed=20 her work by the end of the summer term on August 31, she would be = assigned more=20 work on an ad hoc basis. The court then drew for panel assignments for = the=20 summer and fall terms and Justice Castillo was randomly assigned to = Panel B for=20 the summer term and Panel A for the fall.[4]

After=20 modifying the exit plan, the Thirteenth Court moved to dismiss Justice=20 Castillo=92s petition without prejudice, contending, among other things, = that she=20 could not establish that the new plan violated any constitutional = provision,=20 statute, or administrative rule. Justice Castillo then filed a = supplemental=20 petition for writ of prohibition, asking us to prohibit the Thirteenth = Court=20 from (1) suspending its established internal administrative rules; (2)=20 eliminating her from case assignments and writing assignments after = September 1=20 and assigning cases and opinions on an ad hoc basis; and (3) = =93otherwise=20 interfering with [Justice Castillo=92s] exercise of her constitutional = rights and=20 powers.=94

This Court=20 has a constitutional obligation to supervise and administer the judicial = branch.=20 Tex. Const. art. V, = =A7=A7 3, 31.=20 Pursuant to this obligation, we =93have supervisory and administrative = control=20 over the judicial branch and [are] responsible for the orderly and = efficient=20 administration of justice.=94 Tex. Gov=92t=20 Code =A7 74.021. We also have inherent power to protect and = preserve the=20 proper administration of the judicial system. Vondy v. Comm=92ns = Court of=20 Uvalde County, 620 S.W.2d 104, 109 (Tex. 1981). In this role, we may = issue=20 writs to compel courts of appeals to perform non-discretionary acts when = the law=20 so requires. Tex. Gov=92t = Code =A7=20 22.002; see O=92Connor v. First Court of Appeals, 837 S.W.2d 94, = 95 (Tex.=20 1992)(conditionally granting writ of mandamus to allow an appellate = court=20 justice to file a dissent from the denial of a motion for en banc=20 consideration).

The = actions=20 taken at the May 3 judges=92 meeting, and the resulting exit plan, moot = many of=20 Justice Castillo=92s original complaints. The Thirteenth Court now = correctly=20 agrees that Justice Castillo, like every other justice on the court, may = vote on=20 cases heard by her panel; draft concurring or dissenting opinions in any = cause=20 in which she participated in the decision; vote on motions for = rehearing;=20 participate in oral argument; participate in original proceedings and = motions;=20 and discuss cases with her fellow justices. The court also concedes,=20 appropriately, that Justice Castillo is entitled to write proposed = majority=20 opinions which, if joined by another justice, would become the opinion = of the=20 court.

The = modified=20 plan does, however, alter Justice Castillo=92s role on the court in that = she has=20 been excluded from the initial majority-opinion assignment draw for the = fall=20 term. Justice Castillo contends, therefore, that the modified exit plan = violates=20 article V, section 6 of the Texas Constitution, which establishes courts = of=20 appeals and authorizes them to =93sit in sections as authorized by = law.=94 Tex. Const. art. V, =A7 6. In = addition,=20 Justice Castillo asserts that the modified exit plan contravenes section = 22.222(b) of the Government Code, which provides:

If more=20 than one panel is used, the court of appeals shall establish rules to=20 periodically rotate the justices among the panels. Permanent civil = panels and=20 criminal panels without rotation may not be established.

Tex. Gov=92t Code =A7 = 22.222(b). While=20 these provisions themselves do not grant Justice Castillo the right to = be=20 included in the majority-opinion assignment draw, she urges that when = combined=20 with the Thirteenth Court=92s administrative rules, her entitlement to = be assigned=20 majority opinions becomes clear.

Administrative Rule 4 = provides,=20 in relevant part, that:

Panels=20 will be chosen so that the memberships will be known for two three month = terms,=20 i.e., the current term and the next. At the beginning of each term, the = Justices=20 will draw for membership on the panels for the next term.

Cases=20 shall be assigned to the panels as set forth in Rule 6.

Administrative=20 Rule 6(B) provides, in relevant part:

All=20 Justices, without exception, shall . . . randomly draw for panel = membership.=20 After panel membership is so chosen, seniority on the panel shall be = determined.=20 The Justices shall then randomly draw writing assignments.

We = disagree=20 that these rules establish a right for a justice to be assigned initial = drafting=20 responsibility for majority opinions. While Rule 6 provides that = =93Justices=94 will=20 randomly draw writing assignments, the rule neither states that =93all = Justices=94=20 shall draw [5] nor that its provisions may = not be=20 temporarily suspended. It appears, in fact, that the rules themselves=20 contemplate just such a suspension. See 13th Court Administrative = Rule 24=20 (providing that =93[b]y majority vote of the Court en banc, these = rules may=20 be amended or temporarily suspended=94). The Thirteenth Court employed = this=20 practice at the May 3 meeting. Although the modified plan itself may not = be the=20 most prudent model for a court endeavoring to clear its docket, we = conclude that=20 the court acted within its discretion in adopting it.=20

Both state=20 and federal appellate courts engage in a variety of practices for = assigning=20 cases and managing their dockets. Some assign cases randomly, others by=20 seniority, still others by assignment of the chief justice. See, = e.g.,=20 Melinda Gann Hall, Opinion Assignment Procedures and Conference = Practices in=20 State Supreme Courts, 73 Judicature 209, 210-11 = (1990); Sandra=20 Day O=92Connor, Remembering Rehnquist, 31 Journal of Supreme Court History = 5, 7=20 (2006). Courts must have some leeway in making such assignments to help = maintain=20 a current docket. Whether we deem the modified plan at issue here = advisable or=20 not, we must leave it to the Thirteenth Court to determine whether such = a plan=20 will maximize efficiency when faced with one (and possibly two) outgoing = justices during the last few months of their terms. While there may be=20 circumstances in which a court=92s suspension of its internal rules = constitutes a=20 clear abuse of discretion, it does not appear, under the circumstances = presented=20 here, that the Thirteenth Court clearly abused its discretion or refused = to=20 perform a non-discretionary duty. See In re Yates, 960 S.W.2d = 652, 652=20 (Tex. 1997); O=92Connor, 837 S.W.2d at 97. The constellation of=20 constitutional, statutory, and administrative provisions on which = Justice=20 Castillo relies does not create a right to participate in the = majority-opinion=20 draw and cannot support her claim for extraordinary relief.

It = is not=20 uncommon for justices on a collegial court to harbor differences of = opinion on=20 administrative or substantive matters. Proceedings like these are rare = but may=20 occasionally be necessary to ensure that a justice is able to perform = the duties=20 appertaining to the office. See O=92Connor, 837 S.W.2d at 97. We = express no=20 opinion on the validity of Justice Castillo=92s challenge to the = original plan,=20 which presented separate issues about the role of a justice on an = appellate=20 court. In this case, however, the court withdrew its previous plan, and = we find=20 the substitute to be within the court=92s discretion. The petition for = writs of=20 mandamus and prohibition and the supplemental petition for writ of = prohibition=20 are denied. Tex. R. App. = P.=20 52.8(a).

______________________________

Wallace B.=20 Jefferson

Chief Justice=20

OPINION=20 DELIVERED: August 31,=20 2006

^[1] The Thirteenth Court is composed of six = justices, each=20 of whom rotates among two randomly assigned, three-member panels.=20

^[2] While the Court voted in favor of this = action, Justice=20 Castillo, on the advice of counsel, stated that she would abstain from = voting to=20 preserve this Court=92s jurisdiction over this original proceeding.=20

^[3] Justice Hinojosa faces an opponent in the = November=20 election.

^[4] The panel assignments are:

Summer Term

Panel A: Justices Hinojosa, Rodriguez, and=20 Garza

Panel B: Chief Justice Valdez and Justices = Yanez and=20 Castillo

Fall Term

Panel A: Chief Justice Valdez and Justices = Hinojosa and=20 Castillo

Panel B: Justices Yanez, Rodriguez, and=20 Garza

^[5] By contrast, other portions of Rule 6 specify = =93all=20 justices.=94 See 13th Court Administrative Rule 6 (=93All Justices, without exception, shall . . . randomly draw for panel = membership.=94)=20 (emphasis added)