In Re: Kirk Purcell--Appeal from 247th District Court of Harris County

Petition for Writ of Mandamus Denied and Memorandum Opinion filed November 12, 2004

Petition for Writ of Mandamus Denied and Memorandum Opinion filed November 12, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-04-01013-CV

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IN RE KIRK PURCELL, Relator

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

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

On October 26, 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 his petition, relator seeks to have this court compel the Honorable Bonnie Hellums to set aside orders signed May 11, 2004 and May 17, 2004 as void. Relator complains that the trial court improperly signed these orders after he had filed a motion to recuse Judge Hellums from presiding over his child custody modification proceeding. Relator also filed a motion for emergency relief requesting that we stay all proceedings in the court below pending resolution of this petition.

When a motion to recuse is filed, a trial court has only two options: recusal or referral of the motion to the presiding judge for a determination as to the merits of the motion. Tex. R. Civ. P. 18a(c); Johnson v. Pumjani, 56 S.W.3d 670, 672 (Tex. App.CHouston [14th Dist.] 2001, no pet.). If the judge declines to recuse herself, A[e]xcept 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.@ Tex. R. Civ. P. 18a(d). If a trial court fails to comply with the rules governing motions for recusal, all subsequent actions by the court in the case taken before the motion to recuse is ruled upon are void. Johnson, 56 S.W.3d at 672.

On or about May 8, 2004, the guardian ad litem for relator=s minor children filed an emergency motion for temporary orders to modify the conditions of possession of the children. On May 10, 2004, relator filed a motion to recuse Judge Hellums. On May 11, 2004, Judge Hellums signed an order declining to recuse herself and referring the motion to Judge Olen Underwood, the presiding judge of this administrative region. Although relator provided no reporter=s record containing a transcript, a hearing was apparently held on the emergency motion to modify possession. On May 11, 2004, Judge Hellums signed a handwritten AAgreed Order for Mental Examination of Kirk Purcell.@ On May 13, 2004, Judge Underwood conducted a hearing on relator=s recusal motion and signed an order denying the motion. On May 17, 2004, Judge Hellums signed temporary orders modifying the possession of the children and again ordering a psychological examination of relator.[1] Thus, the May 17, 2004 order, which incorporated the terms of the May 11, 2004 order, was signed after the motion to recuse had been denied by the presiding judge. In addition, the findings contained in the order, concerning the best interest of the children and their safety and welfare, sufficiently recite good cause. See Tex. R. Civ. P. 18a(d); Mercer v. Driver, 923 S.W.2d 656, 659 (Tex. App.CHouston [1st Dist.] 1995, orig. proceeding) (declining to issue writ of prohibition against judge in child custody and habeas proceedings against whom motions to recuse had been filed because he could continue acting in both proceedings for good cause shown).

Relator has not established that he is entitled to mandamus relief. Accordingly, we deny relator=s motion for emergency relief and petition for writ of mandamus.

PER CURIAM

Petition Denied and Memorandum Opinion filed November 12, 2004.

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

[1] Judge Hellums subsequently recused herself. Senior Judge Don Ritter has been assigned to preside over the case.