“Reconsideration” is disfavored in Texas trial courts. The procedural rules don’t contemplate motions to reconsider, but lawyers still file them—usually when they’re convinced the trial judge got an important but unappealable interlocutory ruling wrong.
Motions to reconsider rarely succeed. Once a trial judge has made a decision, it’s difficult to change the judge’s mind. Trial judges are generally too busy to retread old issues without a good reason.
Mandamus is often the next potential move. But the mandamus standard is tricky—an abuse of discretion for which there is no adequate remedy by appeal—and the court of appeals can dispose of a mandamus in a one-sentence opinion: “The petition for writ of mandamus is denied.”
What if the trial judge has left office?
At the end of every general election year, outgoing judges leave on December 31, and their successors are sworn in on January 1. In metro areas prone to party sweeps, this turnover can be dramatic.
What opportunity does a former judge’s departure create to change what counsel perceives to be a bad ruling?
It’s hard to generalize about how a successor judge might approach a request to reconsider a decision they didn’t make. But the successor has authority to withdraw or supersede a previous interlocutory order before final judgment. So a motion to reconsider could make sense if counsel believes the new judge might see things differently.
A bolder strategy—pursuing mandamus from the original order.
Another possibility—and I’m not necessarily endorsing this—would be to file a mandamus petition complaining about the predecessor judge’s order.
Under TRAP 52.2, the proper respondent in a mandamus action is “the person against whom relief is sought.” For judicial orders, that’s generally the judge who made the ruling.
Generally, when a public officer ceases to hold office while an appellate proceeding is pending, the successor is automatically substituted as a party. But a special rule—TRAP 7.2(b)—applies to mandamus and other original proceedings:
Abatement. If the case is an original proceeding under Rule 52, the court must abate the proceeding to allow the successor to reconsider the original party’s decision.
As the Texas Supreme Court said in In re Baylor Medical Center at Garland, “Mandamus will not issue against a new judge for what a former one did.”
Caveat: Tread with caution if too much time has passed.
The takeaway.
Trial lawyers dissatisfied with a ruling from a judge who has since exited the courthouse should consider whether the door to reconsideration is truly closed. A motion to reconsider or even a mandamus petition aimed at the former judge’s order could result in a fresh look from the successor judge. Much of this comes down to a judgment call, but this second bite at the apple could be worth taking in the right situation.