In Re Levi Hardy v. the State of Texas

COURT OF APPEALS
                          EIGHTH DISTRICT OF TEXAS
                               EL PASO, TEXAS
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                                    No. 08-26-00095-CV
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                                  In re Levi Hardy, Relator




                  AN ORIGINAL PROCEEDING IN MANDAMUS



                           M E MO RA N D UM O PI NI O N

       Relator Levi Hardy (Levi) filed this original proceeding requesting that the Court order the

Honorable Jesus Rodriguez, Judge of County Court at Law No. 5, to withdraw his order granting

a new trial. Judge Rodriguez signed the new-trial order after the presiding judge of the judicial

administrative region ordered a transfer of the underlying divorce case once the previous judge,

the Honorable Marlene Gonzalez, Judge of the 388th Judicial District Court, voluntarily recused

from the case. The motion for new trial of Real Party in Interest, Amy Hardy (Amy), remained
pending at the time of transfer. 1 Because we decline Relator’s invitation to extend merits-based

mandamus review to an order granting a new trial after a three-day nonjury trial, we deny the

petition for writ of mandamus.

                                           I. BACKGROUND

        After a nonjury trial, Judge Gonzalez signed the Final Decree of Divorce on September 30,

2025. On October 29, 2025, Amy filed a verified motion for new trial based on several grounds

including: (1) that the evidence was legally and factually insufficient to support the trial court’s

judgment; (2) abuse of discretion in making the property division; and (3) newly discovered

evidence. No supporting affidavits or other documents were attached to the motion. On December

8, 2025, an additional attorney filed an entry of appearance as co-counsel for Amy. On the same

day, Amy’s new counsel moved to recuse Judge Gonzalez alleging personal bias or prejudice under

Texas Rule of Civil Procedure 18b. On December 10, 2025, Judge Gonzalez signed an order of

referral to the presiding judge of the administrative region for assignment of the case to another

district judge. The referral order included a voluntary recusal by Judge Gonzalez “[n]ot for the

reasons alleged in [the] motion to recuse” but “in the interest of judicial economy.” The case was

then transferred to County Court at Law No. 5, before Judge Rodriguez.

        After the case was transferred, the motion for new trial was set for a hearing on January 9,

2026. After receiving arguments from counsel, the trial court granted the motion that same day.

The written order dated January 9, 2026, granted a new trial without stating a reason. Levi filed

this petition for mandamus review contending that Judge Rodriguez’s “unquestionably arbitrary

order granting new trial” amounted to an abuse of discretion as a matter of law that left him without



1
 The underlying cause is styled In the Matter of the Marriage of Amy Hardy and Levi Hardy, trial cause number
2024DCM0666, pending before the Honorable Judge Rodriguez, presiding judge, County Court at Law No. 5, El Paso
County, Texas.


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adequate remedy by appeal. He urged that the new-trial order involved no exercise of judicial

discretion where Judge Rodriguez, a successor judge who did not preside over the bench trial,

received no evidence at the hearing, and articulated no legally valid basis for vacating the final

decree, nonetheless granted a new trial after the rendering of a final decree. He contends mandamus

relief is necessary because the order is objectively arbitrary and incapable of meaningful review,

specifically, that an “immediate correction—not a predeterminedly-fatal second trial followed by

guaranteed appeal—is the only remedy consistent with Texas mandamus jurisprudence.”

                                 II. MANDAMUS STANDARD

       Mandamus relief provides an “extraordinary remedy.” In re Rogers, 690 S.W.3d 296, 302

(Tex. 2024) (orig. proceeding) (per curiam). Mandamus is discretionary in nature and it is governed

by equitable principles. In re First Rsrv. Mgmt., L.P., 671 S.W.3d 653, 663 (Tex. 2023) (orig.

proceeding). To obtain mandamus relief, a relator must generally satisfy two prongs: (1) show

relator has no adequate remedy at law; and (2) establish the trial court committed a clear abuse of

discretion. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig.

proceeding).

                                  III. NEW TRIAL ORDERS

       Entitlement to mandamus review of an order granting a new trial depends on whether the

order follows a jury trial, or whether there exists extreme circumstances. To protect the

constitutional right to a trial by jury, the Texas Supreme Court holds that mandamus review is

proper to determine whether a trial court’s stated reasons for ordering a new trial are reasonably

specific and legally sound. In re Columbia Medical Center of Los Colinas, 290 S.W.3d 204, 206,

213, 215 (Tex. 2009); see also Tex. Const. art. I, § 15 (“The right of trial by jury shall remain

inviolate.”); In re Toyota Motor Sales, 407 S.W.3d 746, 758 (Tex. 2013) (holding that an appellate



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court may conduct a merits review of the bases for a new trial order after a trial court has set aside

a jury verdict). “[D]isregarding a jury’s verdict is an unusually serious act that imperils a

constitutional value of immense importance,” thus, the trial court may only do so “when clearly

supported by sound reasons.” In re Rudolph, 674 S.W.3d at 302. As much as trial courts have

significant discretion to grant new trials, “such discretion should not, and does not, permit a trial

judge to substitute his or her own views for that of the jury without a valid basis.” Columbia, 290

S.W.3d at 212.

       The Texas Supreme Court set forth standards a trial court must meet when setting aside a

jury’s verdict, rejecting for example the mere recitation in the order that the jury’s finding was

“against the great weight and preponderance of the evidence.” In re United Scaffolding, Inc., 377

S.W.3d 685, 688–89 (Tex. 2012). Further, a merits-based review of the trial court’s reasoning is

permitted by mandamus review. That is, if the trial court’s articulated reasons are not supported by

the underlying record, a new trial order cannot stand. In re Toyota Motor Sales, 407 S.W.3d 746,

758 (Tex. 2013).

       Nevertheless, the Texas Supreme Court has given no indication as of this date that these

cases apply equally to new-trial orders following a bench trial. Justice Lehrmann’s concurrence in

Toyota explained why there is a distinction. Id. at 762 (Lehrmann, J., concurring). Mandamus

review of a new-trial order following a jury trial ensures that trial courts do not impermissibly

substitute their judgment for that of the jury. Id. Yet, this same concern does not exist with respect

to new-trial orders that do not set aside a jury verdict, like those issued after a bench trial or when

courts sets aside a default judgment. Id. at 763. This results because the “exceptional

circumstances” that support mandamus review is not present in non-jury cases. See id. at 748–49

(“Without . . . an explanation [for setting aside a jury verdict and granting a new trial], parties in




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the case can only speculate about why the court ostensibly circumvented a critical constitutional

right.”); In re Columbia, 290 S.W.3d at 206 (providing that “the right of trial by jury ‘shall remain

inviolate’” and the issue for mandamus review is whether the trial court may disregard the jury’s

verdict, grant a new trial, and explain its action only as being “in the interests of justice and

fairness”). 2

         Neither this Court nor our sister courts of appeals have yet to extend this reasoning to orders

granting a new trial following bench trials. See In re Velasquez, No. 04-25-00091-CV, 2025 WL

1063434, at *3 (Tex. App.—San Antonio Apr. 9, 2025, no pet.) (mem. op.) (declining to extend

mandamus review to grant of new trial order following a bench trial); In re Foster, No. 05-15-

00179-CV, 2015 WL 682335, at *1 (Tex. App.—Dallas Feb. 18, 2015, orig. proceeding) (mem.

op.) (same); In re Cort, No. 14-14-00646-CV, 2014 WL 4416074, at *2 (Tex. App.—Houston [14th

Dist.] Sept. 9, 2014, orig. proceeding) (mem. op.) (same); In re Old Am. County Mut. Fire Ins. Co.,

No. 13-13-00644-CV, 2014 WL 1633098, at *10 (Tex. App.—Corpus Christi-Edinburg Apr. 23,

2014, orig. proceeding) (mem. op.) (holding “the necessity to safeguard the constitutional right to

a trial by jury,” which constitute exceptional circumstances warranting mandamus review, is not

at issue in a case involving a bench trial).

         Levi acknowledges the limitation but he nonetheless argues that extraordinary

circumstances merit an extension of mandamus review to the order challenged in this instance. He

urges that Justice Lehrmann’s opinion acknowledging the deference afforded to a trial judge’s



2
  To be clear, we note that mandamus review does extend to void orders. See In re Stern, 436 S.W.3d 41, 46
(Tex. App.—Houston [14th Dist.] 2014, no pet.) (“[W]hen the order is adjudged void, it is not necessary for a relator
to additionally show that it lacks an adequate appellate remedy.”); see also In re Davenport, 522 S.W.3d 452, 456
(Tex. 2017) (orig. proceeding) (permitting mandamus relief to direct a trial court to vacate an order granting new trial
“in one of three ways: (1) when a merits-based review of the record establishes that the trial court abused its discretion,
(2) when the trial court's order was void, or (3) when the trial court erroneously finds that the jury’s answers to special
issues are irreparably conflicting”). There is nothing in this record to indicate the trial court’s order granting a new
trial in this case was void.


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grant of new trial following a bench trial is firmly rooted in the importance of the “actual

observance of the proceeding.” He points out that Judge Rodriguez did not in fact observe the

underlying trial proceedings. Levi thus contends that Judge Rodriguez should not be afforded

“unassailable deference.” Based on this factual distinction, he contends we must still apply the

abuse of discretion analysis of In re Columbia Medical Center and its progeny. We disagree and

decline to do so.

       Similar to the relator in Columbia, Levi argues that even if he could obtain appellate review

of the new-trial order following a second trial, that he would still need to convince the appellate

court that the granting of the new trial was error and that the error either prevented him from

properly presenting his case on appeal or probably caused entry of an improper judgment. In re

Columbia, 290 S.W.3d at 209. Levi points out that even if an unfavorable judgment were reversed

and rendered in his favor, he would have lost the benefit of a final judgment “without ever knowing

why, and would have endured the time, trouble, and expense of the second trial.” Id. However, in

a case such as this one, which involved less than a week of trial, we determine the benefits of a

relatively prompt retrial outweigh inherent detriments of mandamus review. In re Prudential, 148

S.W.3d at 136 (pointing out mandamus review can, “interfere[ ] with trial court proceedings,

distract[ ] appellate court attention to issues that are unimportant both to the ultimate disposition

of the case at hand and to the uniform development of the law, and add[ ] unproductively to the

expense and delay of civil litigation”). On the record before us, we conclude that Levi has not

satisfied his burden to demonstrate entitlement to mandamus relief. See In re J.C., No. 14-18-

00904-CV, 2018 WL 5797366, at *2 (Tex. App.—Houston [14th Dist.] Nov. 6, 2018, orig.

proceeding) (mem. op.) (per curiam) (“Relator offer no argument to explain why standards




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developed specifically for the grant of a new trial after a jury verdict apply to a trial court's grant

of a new trial following a bench trial in a parental-termination proceeding.”). 3

                                               IV. CONCLUSION

         We deny Levi’s petition for writ of mandamus. We lift our stay of February 26, 2026.




                                                       GINA M. PALAFOX, Justice

April 22, 2026

Before Salas Mendoza, C.J., Palafox and Soto, JJ.




3
  Levi’s petition additionally alleges that Amy “hired an attorney with a known recusal procedure” after the final
decree entered by Judge Gonzalez was “to her dislike.” He argues that allowing this strategy to take place without
mandamus review “will irretrievably open the door for a new boutique practice by attorneys who can take actions to
obtain automatic recusals and subsequently advertise themselves as being able to automatically undo final trials[.]”
Notably, however, Levi’s petition does not state an issue or present a point for relief challenging either the recusal
order or against the transfer order. See Tex. R. App. P. 52.3(g). Still, even if he did challenge the transfer order, our
mandamus jurisdiction is limited and defined and it does not extend to regional presiding judges performing
administrative functions. See Tex. Gov’t Code Ann. § 22.221; In re Hettler, 110 S.W.3d 152, 155 (Tex. App.—
Amarillo 2003, no pet.).


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