In Re: Patricia Verde, Guardian of the Estate of Leonardo Dominquez, A Minor Child--Appeal from Probate Court No 3 of Harris County

Petition for Writ of Mandamus Denied and Memorandum Opinion filed October 14, 2004

Petition for Writ of Mandamus Denied and Memorandum Opinion filed October 14, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-04-00926-CV

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IN RE PATRICIA VERDE, Guardian of the Estate of Leonardo Dominguez,

a Minor Child, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

M E M O R A N D U M O P I N I O N

On September 24, 2004, relator filed a petition for writ of mandamus in this court. See Tex. Gov=t. Code Ann. ' 22.221 (Vernon 2004); see also Tex. R. App. P. 52. In her petition, relator asks this court to direct the Honorable Rory Olsen, Presiding Judge of Statutory Probate Court Number Three(3) in Harris County, to either recuse himself or refer relator=s motions for recusal to the presiding judge for the statutory probate courts.[1]

On October 5, 2004, counsel for the respondent filed a response to the petition for writ of mandamus informing this court that the respondent had referred the recusal motions to the Honorable Steve M. King, presiding judge of the Statutory Probate Courts of Texas, on September 22, 2004, the same date that respondent signed orders denying the motions.[2] On September 28, 2004, Judge King signed an order assigning the Honorable Jerome Jones, a Senior Statutory Probate Judge, to hear all motions in the underlying cases. Respondent provided sworn copies of the relevant orders.

By referring the recusal motions to the presiding judge, respondent has substantially complied with Texas Civil Procedure Rule 18a(d) and Texas Government Code Section 25.00255(h)(1).[3] Therefore, relator is not entitled to mandamus relief. See Winfield v. Daggett, 846 S.W.2d 920, 922 (Tex. App.CHouston [1st Dist.] 1993, orig. proceeding) (holding mandamus relief is appropriate when judge whom a party seeks to recuse refuses to either recuse or refer motion to presiding judge).

Because mandamus is an extraordinary remedy, we may not issue the writ to supervise or correct a trial court=s incidental rulings that do not permanently deprive a party of substantial rights. See Canadian Helicopters, Ltd. v. Wittig, 876 S.W.2d 304, 306 (Tex. 1994). Therefore, we need not address relator=s complaint that respondent, in denying relator=s recusal motions, improperly determined the motions were procedurally defective.

Accordingly, we deny relator=s petition for writ of mandamus.

PER CURIAM

Petition Denied and Memorandum Opinion filed October 14, 2004.

Panel consists of Chief Justice Hedges and Justices Fowler and Seymore.

[1] The underlying proceedings are filed under cause numbers 338,880 and 338,880-401, styled In the Estate of Alfredo Dominguez, Deceased, and cause numbers 340,231 and 340,231-401, styled In the Guardianship of Leonardo Dominguez, a Minor.

[2] See Tex. Gov=t Code Ann. ' 25.00255(h)(1) (Vernon 2004) (following Rule 18a=s procedures for recusal motions filed in statutory probate courts); Tex. R. App. P. 18a(d).

[3] Rule 18a(d) provides as follows:

If the judge declines to recuse himself, he shall forward to the presiding judge of the administrative judicial district, in either original form or certified copy, an order of referral, the motion, and all opposing and concurring statements. Except for good cause stated in the order in which further action is taken, the judge shall make no further orders and shall take no further action in the case after filing of the motion and prior to a hearing on the motion. The presiding judge of the administrative judicial district shall immediately set a hearing before himself or some other judge designated by him, shall cause notice of such hearing to be given to all parties or their counsel, and shall make such other orders including orders on interim or ancillary relief in the pending cause as justice may require.

Tex. R. Civ. P. 18a(d).

Section 25.00255(h)(1) provides as follows:

A judge who does not recuse himself:

(1) shall forward to the presiding judge of the statutory probate courts, in either original form or certified copy, an order of referral, the motion for recusal or disqualification, and all opposing and concurring statements; . . . .

Tex. Gov=t Code Ann. ' 25.00255(h)(1) (Vernon 2004).