Ex parte Thuesen, 546 S.W.3d 145

Background

Applicant Thuesen convicted of capital murder and sentenced to death; filed state habeas raising ineffective-assistance and other claims; trial court ordered evidentiary hearing.
Trial judge Travis Bryan voluntarily recused himself in a written order (citing campaign donation and prior relationships) and requested the regional presiding judge (Olen Underwood) to assign a replacement.
Presiding Judge Underwood assigned Senior Judge H.R. Towslee to the case by written assignment; Towslee rescheduled the evidentiary hearing.
Months later, after informal communications and a telephone conversation Judge Bryan said he received "directives" from Judge Underwood and held a telephonic hearing where he withdrew his recusal and signed a written reinstatement order; the State initially objected but later withdrew its objection.
Bryan then presided over a five‑day evidentiary hearing, issued findings and conclusions, and recommended some relief limited to punishment.
This Court held that no written order from Judge Underwood rescinding Towslee’s assignment existed; under Gov’t Code §24.002 and Rules 18a/18b a judge who voluntarily recuses must take no further action absent (a) written ancillary order by the presiding judge or (b) a statement of "good cause" in the order allowing further action. Bryan lacked authority, so his post‑recusal actions are disregarded and the case is remanded to Judge Towslee to complete the assignment.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Judge Bryan had authority to reinstate himself absent a written order from Presiding Judge Underwood	Bryan (applicant) contends Underwood orally authorized reinstatement; no written order required; Bryan relied on Underwood’s telephonic "directives"	State argues that once a judge voluntarily recuses, he may take no further action; only a written rescission by the presiding judge or "good cause" permits further action	Held: No authority. Oral off‑the‑record directives insufficient; reinstatement required a written order entered of record by the presiding judge or good‑cause language in the acting order.
Meaning and sufficiency of "good cause" to permit a recused judge to act	Bryan argued that changed circumstances (campaign over; donation moot) removed the recusal reason and thus constituted justification	State argued that mootness of the campaign does not create the statutory exigency that excuses the recused judge from the statute’s prohibition on further action	Held: "Good cause" requires a substantial legal reason justifying a recused judge taking a particular action despite the recusal requirement; Bryan’s stated mootness was not adequate to meet §24.002’s "good cause" exception.
Whether ancillary or interim orders by the regional presiding judge can be rendered orally and effect reinstatement	Applicant argued Rule 18a(g)(4) and assignment language allowed Underwood to direct reinstatement orally; written memorialization not required	State argued Rule 18a requires written rulings by the regional presiding judge; oral directives cannot alter judicial authority	Held: Regional presiding judge’s rulings about recusal/reassignment (including ancillary orders) must be in writing, signed, and entered of record; off‑the‑record oral directives are ineffective.
Effect of parties’ participation and State’s later withdrawal of objection on validity of Bryan’s actions	Applicant contended State’s later withdrawal of objection and participation cured any defect	State argued cure by consent cannot supply judicial authority that statute and rules require	Held: Parties’ participation or withdrawal of objection cannot confer jurisdiction or authority on a judge who has voluntarily recused and has no statutory authority to act; Bryan’s post‑recusal orders are disregarded and matter returned to judge with valid assignment (Towslee).

Key Cases Cited

Johnson v. Pumjani, 56 S.W.3d 670 (Tex. App.-Houston [14th Dist.] 2001) (recusal affects public confidence and impartiality)
Ex parte Sinegar, 324 S.W.3d 578 (Tex. Crim. App. 2010) (Rule 18a applies in habeas proceedings)
Arnold v. State, 853 S.W.2d 543 (Tex. Crim. App. 1993) (civil recusal rules apply to criminal cases absent contrary legislative intent)
Rogers v. Bradley, 909 S.W.2d 872 (Tex. 1995) (Rule 18b’s recusal duties are mandatory)
In re Union Pacific Resources Co., 969 S.W.2d 427 (Tex. 1998) (existence of recusal ground may be waived if not timely raised)
Dunn v. County of Dallas, 794 S.W.2d 560 (Tex. App.-Dallas 1990) (voluntary recusal requires order and request for assignment; recused judge normally takes no further action)
In re Amos, 397 S.W.3d 309 (Tex. App.-Dallas 2013) (prudence of no further communications between recused and assigned judges)
Westbrook v. State, 753 S.W.2d 158 (Tex. Crim. App. 1988) (defining when a judge "renders" an order)
State v. Sanavongxay, 407 S.W.3d 252 (Tex. Crim. App. 2012) (oral rulings lack the finality of written orders)
Ex parte Reed, 271 S.W.3d 698 (Tex. Crim. App. 2008) (this Court is ultimate factfinder in habeas; trial judge is original factfinder)
Ex parte Flores, 387 S.W.3d 626 (Tex. Crim. App. 2012) (Court may enter contrary findings when record undermines trial judge)
Ex parte Barnaby, 475 S.W.3d 316 (Tex. Crim. App. 2015) (remand to trial judge for additional findings)
Ex parte Butler, 416 S.W.3d 863 (Tex. Crim. App. 2012) (remand where additional proceedings required)
Lackey v. State, 364 S.W.3d 837 (Tex. Crim. App. 2012) (timely objection required to preserve complaint about judicial authority)
Lemos v. State, 27 S.W.3d 42 (Tex. App.-San Antonio 2000) (withdrawal of objection waives complaint)