In Re: Dawn Johnson Whatley--Appeal from Probate Court No 2 of Harris County

Real Parties= Motions for Rehearing Overruled; Relator=s Motion for Sanctions Denied; and Supplemental Memorandum Opinion on Rehearing filed August 8, 2006

Real Parties= Motions for Rehearing Denied; Relator=s Motion for Sanctions Denied; and Supplemental Memorandum Opinion on Rehearing filed August 8, 2006.

In The

Fourteenth Court of Appeals

____________

NO. 14-05-01222-CV

____________

IN RE DAWN JOHNSON WHATLEY

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

S U P P L E M E N T A L M E M O R A N D U M O P I N I O N

O N R E H E A R I N G

In our opinion of June 1, 2006, we granted mandamus relief, finding that The Honorable Michael Wood had entered orders while a recusal motion remained pending. Since our opinion issued, the pending recusal motion was denied by Judge Gladys Burwell. Real parties, Mylus James Walker and Ray Black, each have filed motions for rehearing, challenging our June 1st opinion.

Walker first argues that the recusal motion we found pending, which was filed in the trial court on September 9, 2005, was tertiary. In support of this assertion, Walker cites to In re K.M.K., 2002 WL 31760938 (Tex. App.BSan Antonio 2002, pet. denied). In K.M.K., the appellant had filed three recusal motions: one against the trial judge, one against the judge assigned to hear the motion to recuse the trial judge, and one against the next judge assigned to hear the motion to recuse the trial judge. Id. at * 1. With no analysis, the San Antonio court found the third recusal motion was tertiary. Id. We disagree with this conclusion. As we state in our original opinion, the statute defines a Atertiary recusal motion@ as a third or subsequent recusal motion Afiled against a district court, statutory probate court, or statutory county court judge by the same party in a case.@ Tex. Civ. Prac. & Rem. Code Ann. ' 30.016(a) (Vernon Supp. 2005). We construe this statute to mean that the three or more recusal motions must have been filed by the same party against the same judge. Thus, the September 9, 2005, recusal motion filed by relator against Judge Wood is not tertiary because it was not the third motion filed by relator against Judge Wood.

Walker argues that our holding creates a Ajudicial loophole@ that can be used to prevent a case from proceeding to trial or judgment. Walker notes that a party can file a recusal motion against the trial judge and then subsequent recusal motions against the judge assigned to hear that recusal motion, effectively preventing the case from moving forward because no judge can act while a recusal motion is pending. Despite Walker=s protests, our holding is based on the statutory language which plainly states that a tertiary motion is the third recusal motion filed by the same party against a trial judge, sitting either in district court, statutory probate court, or statutory county court. See Tex. Civ. Prac. & Rem. Code Ann. ' 30.016(a) (Vernon Supp. 2005). Our construction of the statute is not only faithful to the words our legislature chose but also reasonable because recusal motions allege facts that are specific to the individual judge. Whether recusal motions are groundless is a matter for the assigned judge to determine. Furthermore, section 30.016 allows a trial judge to avoid the prohibition of Rule 18a(d) once a third recusal motion is filed against him or her by the same party.

Walker next claims that the orders issued by Judge Wood while the September 9th recusal motion was pending are not void because Judge Wood stated Agood cause@ for issuing the order dated October 13, 2005, and December 14, 2005. Rule 18a provides that a judge shall make no further orders in a case after the filing of recusal motion and prior to a hearing on the motion, A[e]xcept for good cause stated in the order in which further action is taken . . . . @ Tex. R. Civ. P. 18a(d). The subject order does not have Agood cause@ language which might suffice for the trial court to take further action in the face of a pending motion to recuse. Though the October 13th and December 14th orders mention Agood cause,@ the Agood cause@ required by Rule 18a must relate to the necessity for taking further action in a case in which a recusal motion is pending, not to any Agood cause@ that might support the merits of the underlying motion. Nothing in the orders indicates that the judge appointed guardians in the face of a pending recusal motion, for example, because circumstances made it necessary to act on this matter without following the regular statutory recusal procedure. Our review of the orders indicates that the Agood cause@ stated in the orders was included to facilitate appointment of temporary and permanent guardians, and not for the purpose of taking Afurther action@ in a case while a recusal motion was pending. Though there may be cases in which the same circumstances demonstrate Agood cause@ for both purposes, there is nothing in the record of this case to show why it was necessary for the judge to rule on the guardianship without first following the recusal-motion procedures outlined in the statute.

The orders signed by Judge Wood while the September 9th recusal motion was pending include an order reaffirming the appointment of a temporary guardian, signed on October 13, 2005, and an order appointing permanent guardians, signed on December 14, 2005. Both orders recite good cause for their entry. The order of October 13th states Athere is imminent danger that the physical health and safety of the Proposed Ward will be seriously impaired, and/or that the Proposed Ward=s estate will be seriously damages or dissipated unless a temporary guardian of the Proposed Ward=s person and estate is appointed . . . . @ The December 14th order states AMr. Whatley is an incapacitated person as that term is defined by the Texas Probate Code and lacks necessary physical and mental capacity to care for himself and to manage his financial affairs . . . .@ The December 14th order also states that it is in Mr. Whatley=s best interest for the trial court to appoint a guardian of his person and estate. These statements go to the merits of the underlying motions and, without more, do not show good cause for entering these orders while a recusal motion was pending. To enter an order appointing a temporary guardian, a trial judge must find evidence of, among other facts, Aimminent danger that the physical health or safety of the respondent will be seriously impaired, or that the respondent=s estate will be seriously damaged or dissipated unless immediate action is taken. . . . @ Tex. Prob. Code Ann. ' 875(g) (Vernon Supp. 2005). The statement in the October 13th order tracks this statutory language. However, recitation of the above statutory language did not, without more, establish good cause for deviating from the statutory procedure for recusal motions.

Furthermore, to appoint a permanent guardian, a trial court must find that Athe proposed ward is totally without capacity . . . to care for himself or herself and to manage the individual=s property . . . .@ Tex. Prob. Code Ann. ' 693(a) (Vernon 2003). The language in the December 14th order that real parties cite as good cause for the trial judge to act while a recusal motion is actually the finding the trial judge must make to appoint a permanent guardian, as required by statute. Thus, this finding of the trial court does not constitute a statement of good cause for acting while a recusal motion is pending.

As their final ground for rehearing, Walker and Black argue that relator abandoned the September 9th motion in several ways. Walker and Black first assert that relator did not raise this issue in her mandamus petition. Indeed, as we noted in our original opinion, relator did not specifically argue that the September 9th motion remained pending; however, she did raise the general issue that Judge Wood continued to act while a recusal or disqualification motion was pending. In reviewing the record, we determined no ruling was ever made on the September 9th recusal motion after it was referred Judge Burwell. Thus, we found the issue was sufficiently raised by the petition.

By filing the September 9th recusal motion, relator followed the procedure in Rule 18a, which required Judge Wood either to recuse himself or to refer the motion. Once the motion was referred, the rule states that the judge shall make no further orders. See Tex. R. Civ. P. 18a(d). Walker and Black assert, however, that relator was not entitled to mandamus relief because there was no demand for performance of a nondiscretionary act and a refusal to act by the trial judge. Relator was not required to reiterate her demand for recusal or for a ruling on the recusal motion. Furthermore, our grant of mandamus relief was not based on Judge Wood=s refusal to rule, but was based on his entry of orders while a recusal motion was pending. Mandamus relief is appropriate when a court issues void orders, Urbish v. 127th Judicial Dist. Court, 708 S.W2d 429, 431 (Tex. 1986), and orders issued by a trial judge while a recusal motion is pending are void. See Johnson v. Pumjani, 56 S.W.3d 670, 672 (Tex App.BHouston[14th Dist.] 2001, no pet.); In re Rio Grande Valley Gas Co., 987 S.W.2d 167, 179 (Tex. App.BCorpus Christi 1999, orig. proceeding).

Walker and Black also point to other facts they contend show abandonment of the September 9th motion: (1) statements on the record and subsequent filings containing the statement that the September 12th recusal motion was the first motion to recuse because all prior motions were filed while the case was removed; (2) no filings by relator after September 9, 2005, mention a pending recusal motion; and (3) no objection at a hearing that the judge could not act because a recusal motion remained pending.

The September 9th motion raised both recusal and disqualifications grounds. As to disqualification, the motion raised the allegation that Judge Wood was constitutionally disqualified because he filed a motion to quash in which he requested sanctions. Disqualification on constitutional grounds cannot be waived. Fry v. Tucker, 146 Tex. 18, 202 S.W.2d 218, 221 (1947); F.S. New Prods., Inc. v. Strong Indus., Inc., 129 S.W.3d 594, 598 (Tex. App.BHouston[1st Dist.] 2003, no pet.). Furthermore, the question whether appellant=s subsequent actions constituted abandonment of her September 9th motion was not one the trial judge could consider in determining whether he could proceed to rule after referring a recusal motion. See Hudson v. Tex. Children=s Hosp., 177 S.W.3d 232, 237 (Tex. App.BHouston[1st Dist.] 2005, no pet.). Rule 18a provides that a judge@shall make no further order@ while a recusal motion is pending. Tex. R. Civ. P. 18a(d).

The real parties have not cited, and we have not located, any authority holding that a party can waive or abandon a motion to recuse or disqualify a trial judge after it has been referred to another judge for a ruling. Walker cites to In re Shaw, 966 S.W.2d 174, 177 (Tex. App.BEl Paso 1998, no pet.) for the general proposition that a pleading may be abandoned; however, we are unpersuaded that this authority applies to the facts of this case. Thus, we find no merit to any of the grounds for rehearing presented by real parties, Walker and Black.

In response to real parties= motions for rehearing, relator has filed a motion for sanctions, alleging that real parties have filed Afalse and misleading motions for rehearing and omitting crucial documents.@ We do not find the motions to include false or misleading statements. Furthermore, motions for rehearing need not include an appendix with documents. The mandamus record previously filed with this court contains sufficient documentation for our disposition of the motions for rehearing. Accordingly, we deny relator=s motion for sanctions.

Because we have found no basis for granting rehearing, we deny real parties= motions for rehearing.

/s/ Charles Seymore

Justice

Supplemental Memorandum Opinion on Rehearing filed August 8, 2006.

Panel consists of Justices Hudson, Frost, and Seymore.