IN RE: RODOLFO DELGADO--Appeal from 139th District Court of Hidalgo County

NUMBER 13-05-270-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

___________________________________________________________________

IN RE RODOLFO DELGADO

__________________________________________________________________

On Petition for Writ of Mandamus ___________________________________________________________________

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Hinojosa and Garza

Per Curiam Memorandum Opinion[1]

Relator, Rodolfo Delgado, filed a petition for writ of mandamus and a motion for emergency stay in the above cause on April 14, 2005. In his petition, relator asks this Court to direct the trial court to vacate an order referring a motion to recuse to the presiding judge of the administrative region. We deny the petition for writ of mandamus.

I. Background

Relator, Rodolfo Delgado, Judge of the 93rd District Court of Hidalgo County, Texas, was charged with two felony offenses, which are both pending in The State of Texas v. Rodolfo Delgado, Cause No. CR-0615-05-C in the 139th District Court of Hidalgo County, Judge J. R. ABobby@ Flores presiding. Following the State=s filing of a second motion to recuse Judge Flores,[2] relator filed this petition for writ of mandamus.

In this proceeding, relator contends that Judge Flores abused his discretion in referring the State=s second motion to recuse to Judge Darrell A. Hester, the presiding administrative judge of the Fifth Judicial District, because the State, by filing multiple motions to recuse with procedural defects, waived its right to complain of Judge Flores= refusal to recuse himself. He also contends that the second motion to recuse was not timely filed and the State has also failed to Astate with particularity the grounds why the judge before whom the case is pending should not sit.@ Relator requests that this Court order Judge Flores to vacate his order referring the State=s second motion to recuse to the administrative judge.

II. Standard of Review

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); Winters v. Presiding Judge of the Crim. Dist. Court No. Three, 118 S.W.3d 773, 775 (Tex. Crim. App. 2003); State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 198 (Tex. Crim. App. 2003). An act is ministerial if it does not involve the exercise of any discretion. Winters, 118 S.W.3d at 775. Additionally, the relator must have a "clear right to the relief sought," meaning that the merits of the relief sought are "beyond dispute." In re Rodriguez, 77 S.W.3d 459, 461 (Tex. App.BCorpus Christi 2002, orig. proceeding). The requirement of a clear legal right necessitates that the law plainly describes the duty to be performed such that there is no room for the exercise of discretion. See id.

In terms of an adequate remedy at law, as a general rule, courts should not grant mandamus relief to the complaining party on a recusal motion because the party has an adequate remedy at law by way of an appeal from the final judgment. De Leon, 127 S.W.3d at 6. Generally, with regard to motions to recuse, a judgment rendered in such circumstances, even if erroneous, does not void or nullify the presiding judge's subsequent acts and may be reversed on appeal, as these decisions are not regarded to be fundamental error. See In re Union Pac. Resources Co., 969 S.W.2d 427, 428-29 (Tex. 1997) (orig. proceeding). Furthermore, rule of civil procedure 18a expressly provides parties with the opportunity for appellate review from a final judgment after denial of a recusal motion. See Tex. R. Civ. P. 18a(f) (AIf the motion is denied, it may be reviewed for abuse of discretion on appeal from the final judgment.@). If the appellate court determines that the judge presiding over the recusal hearing abused his discretion in denying the motion and the trial judge should have been recused, the appellate court can cure any harm by reversing and remanding for a new trial before a different judge. Union Pac. Resources Co., 969 S.W.2d at 428. AThis procedure is no different than the correction of any trial court error through the normal appellate process.@ Id. It is therefore unlikely that decisions regarding recusal motions can be appropriately addressed by a petition for writ of mandamus without an additional showing that the relator lacks an adequate remedy by appeal. See De Leon, 127 S.W.3d at 5 (reaffirming the general rule that courts should not grant mandamus relief to the complaining party on a Rule 18a recusal motion because the party has an adequate remedy at law by way of an appeal from the final judgment.)

III. Applicable Law

The procedures for recusal of judges set out in Rule 18a of the Texas Rules of Civil Procedure apply in criminal cases. See Tex. R. Civ. P. 18a; De Leon, 127 S.W.3d at 5. When a recusal motion is timely filed, Rule 18a leaves a trial judge with no discretion; that is, the trial judge must either recuse himself or refer the motion for another judge to decide. See Tex. R. Civ. P. 18a(c); De Leon, 127 S.W.3d at 5.

In De Leon, the court of criminal appeals expressly overruled prior law stating that a criminal trial judge may make an initial determination as to whether the recusal motion conforms with Rule 18a(a). See De Leon, 127 S.W.3d at 5; see, e.g., McLenan v. State, 661 S.W.2d 108, 110 (Tex. Crim. App. 1983) (in order for Rule 18a to come into play, motion must be prima facie adequate and allege proper grounds upon which a recusal is sought). Rule 18a does not contemplate that a trial judge whose impartiality is questioned can nevertheless determine whether the allegations of bias against him state sufficient grounds for recusal. De Leon, 127 S.W.3d at 5. Accordingly, even if a motion to recuse is procedurally defective, the challenged judge must either grant the motion or refer the motion, so another judge can determine the procedural adequacy and merits of the motion to recuse. Mosley v. State, 141 S.W.3d 816, 831 (Tex. App.BTexarkana 2004, pet. ref=d).

Thus, a timely filed recusal motion triggers the trial judge's duty to recuse or to refer; however, the trial judge has no such duty when a recusal motion is not timely filed. See id.; Arnold v. State, 853 S.W.2d 543, 544 545 (Tex. Crim. App. 1993). Under rule 18a, a motion to recuse must be filed at least ten days before the date set for trial or other hearing, and the failure to comply with this ten day notice provision waives the appellate complaint of the denial of an opportunity to have their motions heard by a judge other than the one assigned to the case. De Leon, 127 S.W.3d at 5.

IV. Analysis

Based on the foregoing, the State=s second motion to recuse was timely filed insofar as it was filed at a time when there were no hearings scheduled. Id. Therefore, under De Leon, Judge Flores had no discretion to do anything other than recuse himself or refer the matter of recusal to the administrative judge. Id. This would be the case whether or not the motion to recuse was procedurally defective. See id. Thus, relator has failed to show that Judge Flores had a ministerial duty to deny the motion to recuse. Moreover, based on the present record, it appears that relator will have an adequate remedy at law by way of an appeal from the final judgment, as expressly provided in rule 18a(f). See Tex. R. Civ. P. 18a(f); De Leon, 127 S.W.3d at 6.

V. Conclusion

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

PER CURIAM

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

Memorandum Opinion delivered and filed

this 16th day of June, 2005.

[1] See Tex. R. App. P. 52.8(d) (AWhen 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).

[2]The first motion was referred to Judge Hester, the presiding administrative judge of the Fifth Judicial District, and was denied on procedural grounds.