Opinion
No. 10-03-101-CV.
Opinion delivered and filed July 30, 2003.
Appeal from the 278th District Court, Leon County, Texas, Trial Court #0-03-95A-1.
Reversed and remanded.
Attorney(s) for Appellant/Relator: James P. Allison, Allison, Bass Associates, L.L.P., Austin, TX.
Attorney(s) for Appellee/Respondent: Bryan Cantrell, Cantrell Cantrell, Huntsville, TX.
Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY (Justice Gray dissenting).
MEMORANDUM OPINION
This is a direct appeal from an order authorizing a writ of mandamus. Appellants are the county commissioners of Leon County, the county judge, and Leon County. The procedural history is central to understanding the issues, and we describe it in some detail.
BACKGROUND AND PROCEDURAL HISTORY
The district judges having jurisdiction in a county have the authority to appoint the county auditor. Tex. Loc. Gov't Code Ann. ch. 84 (Vernon 1999 Supp. 2003). The county auditor may submit a list of assistant county auditors to the district judges who may approve the list and the salary to be paid each person on the list; the commissioners court "shall order the salaries to be paid." Id. § 84.021(a) (Vernon 1999). The judges may appoint temporary assistants and determine their salaries if an "emergency" exists. Id. § 84.021(b) (Vernon 1999).
On February 13, 2003, two of the three district judges in Leon County, Judge Keeling and Judge McAdams, held a special public meeting to appoint a county auditor and an assistant. Apparently there had not been a county auditor for two and one-half months, and there had not been an assistant for nine and one-half months. The two judges signed an order appointing Susan Pugh as county auditor with an annual salary of $42,000 and an order appointing Linda Grayson as assistant county auditor with an annual salary of $29,500. Grayson had formerly served as assistant county auditor from 1998 to May 2002, when she left the position. Her last salary was $20,058.30.
The third judge was not present.
On March 10, 2003, the commissioners court adopted two orders, one setting Grayson's salary at $20,659.98, and the other not approving a salary of $29,500. The commissioners court's position was that it had authority under section 111.013 of the Local Government Code to approve, or not approve, any salary for an assistant county auditor if it exceeded the salary for the previous fiscal year by over five percent. Id. § 111.013 (Vernon 1999).
Grayson responded on March 18 by filing in Judge Keeling's court (a) an original petition for declaratory judgment and injunctive relief against the commissioners, the county judge, and Leon County (cause # 0-03-95A), and (b) a mandamus petition against the commissioners and the county judge (cause # 0-03-95A-1), through both of which she sought to compel the commissioners court to order a salary of $29,500. On March 25, the day of the hearing on the mandamus petition, the commissioners and the county judge filed in the mandamus cause (a) a response, plea to the jurisdiction, and jury demand, (b) a motion to recuse Judge Keeling for bias and for being a potential witness, (c) a motion for a continuance, and (d) a motion to quash service. Judge Keeling expressly or impliedly denied the plea, jury demand, motion for recusal, and request for a continuance, and refused to quash service. At the conclusion of the hearing, Judge Keeling granted the writ of mandamus. He personally signed the writ on March 26. On March 28, he sent a letter to Judge Underwood, the presiding judge of the administrative district including Leon County, informing him that he had not recused himself. He said: "The motion is frivolous and made in bad faith. Every judge should and does have the right to enforce his or her own order."
In cause # 0-03-95A, the commissioners, the county judge, and Leon County also filed a counterclaim with jury demand seeking a declaratory judgment that the judges' order setting the salary was void. Cause # 0-03-95A is not before us on appeal.
The commissioners, the county judge, and Leon County filed a direct appeal in this court on March 26. Their complaints are:
Judge Keeling abused his discretion regarding the motion for recusal by not following Rule of Civil Procedure 18a(c), (d).
Judge Keeling abused his discretion when he denied the motion to quash service based on the fact that the mandamus petition was served on the county attorney rather than individually on the respondents.
Judge Keeling abused his discretion when he denied the motion for a continuance.
Judge Keeling abused his discretion when he denied the request for a hearing before a jury.
On March 28, 2003, the commissioners, the county judge, and Leon County filed a companion to their direct appeal — an original proceeding in this court seeking a writ of mandamus, docketed #10-03-102-CV, and a motion for emergency stay, which we granted. We denied the petition for a writ of mandamus because there was an adequate remedy at law, i.e., this direct appeal.
While the appeal was pending, Judge Underwood issued an order, on April 29, 2003, without a hearing, in which he granted the motion to recuse Judge Keeling. The parties have not filed a complaint about this order.
ANALYSIS
When a motion for recusal has been filed, the trial judge who is the subject of the motion has only two options: (1) grant the motion and recuse himself, and request the presiding judge of the administrative judicial district to assign another judge to sit, or (2) take no further action and request the presiding judge of the administrative judicial district to assign a judge to hear the motion for recusal. Tex.R.Civ.P. 18a. The Rule repeatedly uses the word "shall," as does section 74.059(c) of the Government Code: "A district . . . judge shall . . . request the presiding judge to assign another judge to hear a motion relating to the recusal of the judge. . . ." Tex. Gov't Code Ann. § 74.059(c)(3) (Vernon 1998); see Ross v. State, 947 S.W.2d 672, 673 (Tex.App.-Texarkana 1997, no pet.). Judge Keeling did neither: he did not recuse himself; he referred the matter to the presiding judge but only after he had issued the writ of mandamus.
Rule 18a allows a judge to act for "good cause," which must be stated in the order in which further action is taken. Johnson v. Pumjani, 56 S.W.3d 670, 672 (Tex.App.-Houston [14th Dist.] 2001, no pet.); Carson v. McAdams, 908 S.W.2d 228, 228-29 (Tex.App.-Houston [1st Dist.] 1993, no writ). No cause was stated here.
An action taken by a trial judge in violation of Rule 18a is void. Tex.R.Civ.P. 18a(c), (d); Johnson v. Pumjani, 56 S.W.3d 670, 672 (Tex.App.-Houston [14th Dist.] 2001, no pet.); Brosseau v. Ranzau, 28 S.W.3d 235, 238 (Tex.App.-Beaumont 2000, no pet.); In re Rio Grande Valley Gas Co., 987 S.W.2d 167, 179 (Tex.App.-Corpus Christi 1999) (orig. proceeding). Therefore, the writ of mandamus issued by Judge Keeling is void. We sustain issue one.
Having sustained the first issue, we do not address the remaining three issues.
CONCLUSION
The writ of mandamus issued by Judge Keeling is void because he violated the requirements of Rule 18a. We reverse the order granting a writ of mandamus and remand the cause for further proceedings.
I respectfully dissent. Leon County's recusal motion was untimely, and the trial court did not err in not immediately either recusing himself or referring the motion to the administrative-regional judge under Texas Rule of Civil Procedure 18a.
"The mandatory provisions in Rule 18a . . . never come into play unless and until a timely filed motion to recuse is filed." Beard v. Beard, 49 S.W.3d 40, 51 (Tex.App.-Waco 2001, pet. denied) (op. on orig. submission) (quoting Wright v. Wright, 867 S.W.2d 807, 811 (Tex.App.-El Paso 1993, writ denied)); accord, e.g., Metzger v. Sebek, 892 S.W.2d 20, 49 (Tex.App.-Houston [1st Dist.] 1994, writ denied), cert. denied, 516 U.S. 868 (1995); Limon v. State, 632 S.W.2d 812, 815-16 (Tex.App.-Houston [14th Dist.] 1982, pet. ref'd); but see, e.g., Jamilah v. Bass, 862 S.W.2d 201, 202-203 (Tex.App.-Houston [14th Dist.] 1993, orig. proceeding) (even untimely or defective motion should be referred).
Leon County's recusal motion was untimely. Leon County conceded in its motion for continuance that it "received approximately seven days notice of the hearing" on Grayson's petition for writ of mandamus. Yet Leon County did not file its recusal motion until the date of the hearing. In the trial judge's letter to the administrative-regional judge, he states that Leon County presented the recusal motion only "[a]pproximately one or two minutes prior to the hearing."
The purpose of the ten-day requirement for recusal motions is "to avoid having a party wait until the last minute to file such a motion and thus disrupt the commencement of a trial." Keene Corp. v. Rogers, 863 S.W.2d 168, 171 (Tex.App.-Texarkana 1993, writ stayed); accord Martin v. State, 876 S.W.2d 396, 397 (Tex.App.-Fort Worth 1994, no pet.). Rule 18a also has the potential for abuse "as an alternative to a motion for continuance." See Manges v. Martinez, 683 S.W.2d 137, 140 (Tex.App.-San Antonio 1984, orig. proceeding) (Dial, J., concurring). If the movant does not receive ten days' notice of trial, then the ten-day requirement cannot be strictly applied. In re Harrell, No. 07-00-0251-CV, 2000 WL 1029059, at *1 (Tex.App.-Amarillo Jul. 26, 2000, orig. proceeding [pet. denied]) (not designated for publication); Metzger, 892 S.W.2d at 49. But a requirement of reasonably timely filing must still apply. This is in accord with Rule 18a's provision that when a judge is assigned less than ten days before trial, a motion to recuse may "be filed at the earliest practicable time prior to the commencement of the trial or other hearing." Tex.R.Civ.P. 18a(e). Thus, for instance, in Fagin v. Duke-Keller Outdoor Advertising, Inc., the court held that a recusal motion filed on the day before the hearing was timely, where the party received only two days' notice. Fagin v. Duke-Keller Outdoor Adver., Inc., No. 04-97-01020-CV, 1999 WL 552825, at *1 (Tex.App.-San Antonio Jul. 30, 1999, no pet.) (not designated for publication). In Metzger v. Sebek, the court held that a recusal motion filed on the date of the hearing was timely, where the party received only three days' notice of the hearing. Metzger, 892 S.W.2d at 49.
In this connection, Leon County also filed a motion for continuance on the day of the hearing. The trial court denied the motion.
Moreover, untimely filing is permitted only on a showing of good cause. Auto. Digital Sys., Inc. v. Bass, No. 12-94-00187-CV, 1996 WL 773026, at *11 (Tex.App.-Tyler Oct. 31, 1996, writ denied) (not designated for publication); Keene, 863 S.W.2d at 172.
Leon County's motion to recuse was not reasonably timely, and does not show good cause to excuse the timing of its filing. The motion alleges that Leon County "learned of the reason for recusal less than ten days before the hearing." Leon County's seven days' notice excuses its failure to comply with the ten-day requirement, but, without more, does not excuse its filing of its recusal motion immediately before the hearing. Thus, the trial court did not abuse its discretion in not acting on the motion.
Accordingly, we should overrule Leon County's first issue, and address its other issues. Because the majority does otherwise, I respectfully dissent.