IN RE: JOSEPH A. CONNORS, III, SPECIAL PROSECUTOR PRO TEM FOR THE STATE OF TEXAS IN HIDALGO COUNTY, TEXAS--Appeal from 139th District Court of Hidalgo County

NUMBER 13-07-274-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

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IN RE JOSEPH A. CONNORS III,
SPECIAL PROSECUTOR PRO TEM FOR THE STATE OF TEXAS
IN HIDALGO COUNTY, TEXAS

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On Petition for Writ of Mandamus
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MEMORANDUM OPINION
Before Justices Ya ez, Benavides, and Vela
Per Curiam Memorandum Opinion (1)

Relator, Joseph A. Connors III, "Special Prosecutor Pro Tem" for the State of Texas in Hidalgo County, Texas, seeks writs of mandamus and prohibition to compel the Honorable J. R. "Bobby" Flores, Presiding Judge of the 139th Judicial District Court of Hidalgo County, Texas, to either disqualify or recuse himself from presiding in a criminal trial. Relator also requests that we grant mandamus relief by vacating two orders signed by the Honorable J. Manuel Ba ales, presiding judge of the Fifth Administrative Judicial Region, denying the motions for disqualification and recusal of Judge Flores. Relator further requests a stay of further pretrial hearings and trial on the merits pending disposition of this petition. We deny the motion for stay and deny the petition for writ of mandamus.

Mandamus relief may be granted if the relator shows the following: (1) that the act sought to be compelled is purely ministerial; and (2) that there is no adequate remedy at law. De Leon v. Aguilar, 127 S.W.3d 1, 5 (Tex. Crim. App. 2004).

In most cases, an appeal is an adequate remedy to challenge an erroneous ruling denying a motion to recuse. De Leon v. Aguilar, 127 S.W.3d 1, 6-7 (Tex. Crim. App. 2004); In re Union Pac. Res. Co., 969 S.W.2d 428, 428-29 (Tex. 1998); see Tex. R. Civ. p. 18a(f) ("If the motion is denied, it may be reviewed for abuse of discretion on appeal from the final judgment."). To the extent that relator's motion can be construed to seek the mandatory disqualification of Judge Flores, mandamus would be appropriate to review the trial court's decision. Union Pac. Res. Co., 969 S.W.2d at 428 (if a judge is constitutionally disqualified from sitting in a case, the judge is without authority to act and mandamus is available to compel the judge's mandatory disqualification without a showing that the relator lacks an adequate remedy by appeal. Id.; In re Gonzalez, 115 S.W.3d 36, 39 (Tex. App.-San Antonio 2003, orig. proceeding).

In the instant case, relator's arguments do not fall within the constitutional and statutory bases for disqualification and the record fails to show that any of the mandatory grounds for disqualification are applicable. In this context, we would note that the trial judge is not disqualified merely because he previously represented the State in another, separate case. See Gamez v. State, 737 S.W.2d 315, 318 (Tex. Crim. App. 1987) (en banc) ("the prohibition . . . against a judge hearing a case in which he has acted as counsel requires that he actually have participated in the very case which is before him"); Holifield v. State, 538 S.W.2d 123, 125 (Tex. Crim. App. 1976); Hathorne v. State, 459 S.W.2d 826, 829 (Tex. Crim. App. 1970); Brown v. State, 108 S.W.3d 904, 907 (Tex. App.-Texarkana 2003, pet. ref'd). This is true even where, for instance, the conviction in which the trial judge represented the State is used for enhancement purposes in the case over which the trial judge is presiding. See Griffin v. State, 487 S.W.2d 81, 83 (Tex. Crim. App. 1972); Brown, 108 S.W.3d at 907-08. Accordingly, mandamus relief is not available because relator has an adequate remedy at law by appeal. De Leon, 127 S.W.3d at 6-7; Woodard v. Eighth Court of Appeals, 991 S.W.2d 795, 796-97 (Tex. Crim. App. 1998).

The Court, having examined and fully considered the petition for writ of mandamus and request for stay thereto is of the opinion that relator has not shown himself entitled to the relief sought. Accordingly, the petition for writ of mandamus and request for stay are DENIED. See Tex. R. App. P. 52.8(a).

 

PER CURIAM

 

Do not publish. See Tex. R. App. P. 47.2(b).

 

Memorandum Opinion delivered and filed

this 4th day of May, 2007.

 

1. See Tex. R. App. P. 52.8(d) ("When denying relief, the court may hand down an opinion but is not required to do so."); Tex. R. App. P. 47.4 (distinguishing opinions and memorandum opinions).