In Re Hms
349 S.W.3d 250
| Tex. App. | 2011Background
- Lugo filed a suit affecting the parent-child relationship on August 12, 2008 naming Sampley as the father of H.M.S.
- Final orders were signed September 11, 2009, appointing Sampley as sole managing conservator of H.M.S.
- Two months after entry of final orders, Lugo moved to recuse the trial judge; motion was assigned to Judge Alvin Khoury.
- Lugo subpoenaed the judge, court reporter, deputy clerk, and district clerk to testify and produce documents; subpoenas were resisted by the court.
- Judge Khoury denied the motion to recuse and imposed sanctions totaling $10,000 to Sampley and $3,600 to Collin County.
- Lugo appealed, challenging the denial of recusal and the sanctions award; the court affirmed in part and rejected frivolousness findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial judge abused his discretion in denying recusal | Lugo claims bias and due-process violation requiring recusal | Khoury acted within discretionary bounds; no bias proven | No abuse of discretion; no reversible bias shown |
| Whether the court erred in refusing to exclude witnesses under Rule 614 | Exclusion was required to prevent prejudice from court employees | Officers of the court are not categorically excluded; error insufficiently harmful | Ruling not reversible for lack of exclusion absent demonstrated harm |
| Whether sanctions against Lugo and her counsel were proper | Sanctions unjustified for a frivolous recusal motion | Sanctions warranted under Rule 18a(h) for delay and lack of cause | Sanctions affirmed; theory supported by record |
| Whether the court had jurisdiction to sanction the nonparty Collin County | Nonparties cannot be sanctioned | Court may sanction nonparties for subpoena-related conduct | Sanctions against Collin County upheld; jurisdiction recognized |
Key Cases Cited
- Elbar, Inc. v. Claussen, 774 S.W.2d 45 (Tex.App.-Dallas 1989) (witness exclusion rules require harm show for reversible error)
- Sommers v. Concepcion, 20 S.W.3d 27 (Tex.App.-Houston [14th Dist.] 2000) (abuse-of-discretion review for recusal motions)
- In re C.J.O., 325 S.W.3d 261 (Tex.App.-Eastland 2010) (zone of reasonable disagreement for judicial recusal)
- Liteky v. United States, 510 U.S. 540 (1994) (bias requires deep-seated favoritism or antagonism; routine rulings immune)
- In re Bennett, 960 S.W.2d 35 (Tex. 1997) (court inherent power to sanction for improper conduct)
- Eichelberger v. Eichelberger, 582 S.W.2d 395 (Tex. 1979) (sanctions to protect dignity and function of judiciary)
- Lawrence v. Kohl, 853 S.W.2d 697 (Tex.App.-Houston [1st Dist.] 1993) (sanctions may deter bad-faith abuse of judicial process)
- BASF Fina Petrochemicals Ltd. P'ship v. H.B. Zachry Co., 168 S.W.3d 867 (Tex.App.-Houston [1st Dist.] 2004) (court may sanction nonparties for subpoenas and discovery costs)
- In re Suarez, 261 S.W.3d 880 (Tex.App.-Dallas 2008) (nonparty sanctions context for subpoenas)
- Bank of Texas, N.A., Trustee v. Mexia, 135 S.W.3d 356 (Tex.App.-Dallas 2004) (interest in proceedings requires substantial conflict for recusal)