Nancy Braus v. Ray M. Bowen, J. Malon Southerland, William L. Kibler, Russell W. Thompson, John J. Koldus, III, Major General M.T. Hopgood, Jr., Donald J. Johnson, Zack Coapland, Kevin Jackson, James R. Reynolds, Robert Harry Stiteler, Jr., and Michael David Krenz--Appeal from 361st District Court of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-06-00226-CV

Nancy Braus,

Appellant

v.

Ray M. Bowen, ET AL.,

Appellees

From the 361st District Court

Brazos County, Texas

Trial Court No. 03-001246-CVA-361

ORDER

Before the Court is Appellant Nancy Braus s motion to recuse Justice Vance in this appeal. We will dismiss the motion for want of jurisdiction.

The Court dismissed this appeal by unanimous opinion dated October 10, 2007. See Braus v. Bowen, No. 10-06-00226-CV, 2007 WL 2994065 (Tex. App. Waco Oct. 10, 2007, pet. denied) (mem. op.). The Court denied Braus s timely filed motion for rehearing on November 6. Braus filed the motion to recuse Justice Vance on February 4, 2008. The Supreme Court recently denied Braus s petition for review.

Under Rule of Appellate Procedure 19.1(b), the plenary jurisdiction of this Court expires thirty days after the overruling of all timely filed motions for rehearing. Tex. R. App. P. 19.1(b). The Court s plenary jurisdiction over Braus s appeal expired on December 6, 2007. Thus, we do not have jurisdiction to rule on Braus s recusal motion. Kim v. State, 181 S.W.3d 448, 449 (Tex. App. Waco 2005, no pet.); Kacal v. Cohen, 13 S.W.3d 900, 902 (Tex. App. Waco 2000, order) (per curiam); see also Lattin v. Barrett, 153 S.W.3d 700, 702 (Tex. App. Waco 2005, order) (Gray, C.J., dissenting).

Braus s motion to recuse Justice Vance is dismissed for want of jurisdiction.

PER CURIAM

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray provided the following note: This note is to explain why I cannot participate in deciding the issue being decided in the accompanying order by a majority of the court in this proceeding. From the day the motion to recuse Justice Vance was received, we all recognized that there was a question regarding in which of the several Bon Fire proceedings Nancy Braus intended the motion to be filed. But Justice Vance, rather than simply certify his decision with regard to the merits of the motion as to any of the Bon Fire appeals, specifically limited his certification to only one of the proceedings, this one, but also first attempted to control the determination of the merits of the motion by telling us that he thought the court had no jurisdiction to decide the motion. At that time Justice Reyna and I declined to follow Justice Vance s proposal. Subsequently Justice Reyna proposed that we make the decision for Nancy Braus as to what she intended and file it in the only proceeding that remained pending at this court, 10-05-00295-CV, rather than in this proceeding. Simultaneously to Justice Reyna s proposal and because Justice Vance would not provide his certification on the merits of the motion without regard to in which of the Bon Fire proceedings it was filed, I suggested to Justice Reyna that we ask Nancy Braus, the only person who could answer the question of in which of the Bon Fire proceedings she intended to file the motion to recuse Justice Vance, because I had certainly been unable to determine that with any reasonable level of confidence based upon the transmittal letter and the contents of the motion and thus I could not join in his proposal. While waiting on the explanation from Justice Reyna as to why he could not join me in my proposal to ask Nancy Braus in which of the proceedings she intended the motion to recuse be filed, the per curiam order landed on my desk. Because I still do not know in which of the Bon Fire proceedings Nancy Braus intended to file her motion to recuse Justice Vance, and because Justice Vance has not provided a certification of his decision on the motion to recuse as to all of the Bon Fire proceedings, I was left in a quandry of what to do. My next suggestion was going to be that Justice Reyna and I request guidance from the Chief Justice of the Texas Supreme Court. Accordingly, I do not join in deciding the motion in the manner it is being decided by the majority. I have not attempted to determine the merits of the motion to recuse Justice Vance in this proceeding or any other Bon Fire proceeding, nor do I take a position with regard to whether the majority s order disposes of the motion to recuse Justice Vance in all the proceedings in which it was intended to be filed. I note, however, that in the absence of any indication to the contrary by the majority, I must assume based upon the history of events that it is their position that their order fully disposes of the motion to recuse and thus I will proceed to decide any pending issues in pending Bon Fire appeals without regard to the motion to recuse Justice Vance. )

Motion dismissed

Order issued and filed May 21, 2008

Do not publish

[CV06]