515 S.W.3d 420
Tex. App.2017Background
- On Jan. 11, 2017, Preston Marshall sought a temporary restraining order (TRO) and temporary injunction; the hearing occurred that day in Probate Court No. 2, Harris County.
- During the hearing relator Elaine T. Marshall filed a handwritten motion to recuse Judge Mike Wood.
- Judge Wood stated he believed the handwritten motion might not comply with the rules but would take it under advisement; he did not sign an order recusing himself or referring the motion to the regional presiding judge.
- After the hearing, on Jan. 11, 2017, Judge Wood signed the TRO while the recusal motion remained undecided and unreferenced.
- Relator filed a petition for writ of mandamus asking the appellate court to compel Judge Wood to vacate the TRO as void for failing to comply with Texas Rule of Civil Procedure 18a(f).
- The appellate court conditionally granted mandamus, concluding the TRO was void and directing the judge to vacate it; the stay remained until compliance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a judge must act on a filed motion to recuse before taking further action | Motion to recuse was filed; judge had to recuse or refer under Rule 18a(f) before further action | Judge could proceed because the handwritten motion was deficient under Rule 18a(a) | Judge must either recuse or refer within three business days regardless of technical defects; failure makes subsequent orders void |
| Whether the TRO signed after the recusal motion is void | TRO is void because signed after motion to recuse without recusal or referral | TRO valid because motion was procedurally defective | TRO is void when issued after a recusal motion without complying with Rule 18a(f) |
| Whether pre-decision action is permitted for "good cause" when a recusal motion is pending | Relator: no sufficient good-cause shown to permit action | Real party: good cause justified issuing TRO before ruling on recusal | No record showing good cause; "good cause" must justify timing, not merits; none shown here |
| Whether mandamus is an appropriate remedy to vacate a void TRO | Mandamus appropriate to correct a void TRO | (Respondent did not raise a contrary effective defense) | Mandamus is proper to vacate a TRO that is void for recusal-rule noncompliance |
Key Cases Cited
- In re Susan C. Norman, 191 S.W.3d 858 (Tex. App.—Houston [14th Dist.] 2006) (orig. proceeding) (even defective recusal motions require judge to recuse or refer)
- In re Office of the Attorney General, 257 S.W.3d 695 (Tex. 2008) (orig. proceeding) (mandamus available to correct a void TRO)
- Gill v. Texas Department of Criminal Justice, 3 S.W.3d 576 (Tex. App.—Houston [1st Dist.] 1999) (discusses waiver for noncompliant recusal motions—decisions predating Rule 18a(f) amendment)
- Spigener v. Wallis, 80 S.W.3d 174 (Tex. App.—Waco 2002) (discusses waiver for defective recusal motions)
- Barron v. Attorney General, 108 S.W.3d 379 (Tex. App.—Tyler 2003) (same)