In re Eduardo CHAVEZ.
No. 08-03-00277-CR.
Court of Appeals of Texas, El Paso.
Aug. 12, 2003.
109 S.W.3d 107
Appellant points to various provisions of
Further, while Article 17.292 does not provide for a cancellation or modification procedure, the availability of the writ of habeas corpus procedure affords one the opportunity to obtain an adversarial hearing to contest the emergency protective order. This ameliorates the ex parte nature of the procedure. See Ex parte Shockley, 683 S.W.2d 493, 495 (Tex. App.—Dallas 1984, pet. dism‘d). We find that Article 17.292 is constitutional. Appellant‘s Issues Nos. Two and Three are overruled.
Having overruled each of Appellant‘s issues on review, we affirm the trial court‘s denial of Appellant‘s writ of habeas corpus.
Ray Velarde, El Paso, for relator.
John P. Mobbs, El Paso, for ad litem.
BARAJAS, C.J., LARSEN, McCLURE, and CHEW, JJ., EN BANC.
OPINION ON WRIT OF MANDAMUS
DAVID WELLINGTON CHEW, Justice
Relators Eduardo Chavez and Cesar De Leon seek mandamus relief directing Respondent, the Honorable Luis Aguilar, judge of the 120th Judicial District Court of El Paso County to recuse himself from their cases, or in the alternative, relief directing Judge Aguilar to refer their respective motions to recuse to the presiding judge in this administrative judicial region for proper adjudication.1 Relators also request a writ of prohibition to prohibit Judge Aguilar from exercising jurisdiction over their cases. The real parties in interest in each cause are their attorneys Joseph (Sib) Abraham, Jr. and Kathleen Salome Smith. We must deny mandamus relief in each cause.
FACTUAL AND PROCEDURAL BACKGROUND
Relators’ complaints about Judge Aguilar‘s alleged personal bias arise from events which occurred in April 2002, during which Judge Aguilar was a candidate for judicial office for the 120th Judicial District Court. At that time, Mr. Joseph (Sib) Abraham and Ms. Kathleen Salome Smith, together as the Law Offices of Joseph (Sib) Abraham, Jr., were attorneys representing their client Javier Favela in a criminal matter then pending in the United States District Court in El Paso, Texas. During the course of that representation, Mr. Favela was critically injured in a traffic accident during an inmate transfer movement by the U.S. Marshal Service on April 10, 2002. The marshals immediately contacted the Law Offices of Joseph (Sib) Abraham, Jr. and informed them of the accident and requested that they notify the Favela family. In addition, the U.S. Marshal Service requested that the law office serve as liaison between the Favela family, medical personnel, and the Marshal Service since Mr. Favela was still considered a prisoner in federal custody who could not have physical contact with family members. Ms. Smith went to Thomason Hospital, where she was eventually met by Favela family members.
The next day, April 11, 2002, numerous individuals approached the Favela family at Thomason Hospital while their attorney Ms. Smith was present. These individuals included attorneys attempting to solicit representation of Mr. Favela in any personal injury litigation against those agencies involved in the traffic accident. Judge Aguilar, then a judicial candidate, was among the attorneys present at Thomason Hospital. The Favela family members advised those individuals in the presence of U.S. Marshals, that the law office of Joseph (Sib) Abraham, Jr. would be handling the representation of Javier Favela and his family. Mr. Abraham‘s law office continued to represent the Favela family interests until April 13, 2002, two days later, when the Favela family informed Mr.
In each case identical recusal motions allege that prior to being hired by the Favelas, Judge Aguilar appeared at Thomason Hospital, supposedly on behalf of the Favela‘s church community. Relators contended that although Judge Aguilar knew that the Favelas had secured the Law Offices of Joseph (Sib) Abraham, Jr. as their counsel and had seen Ms. Smith at the hospital, his true purpose was to procure legal employment and the Favela‘s personal injury case. On April 15, 2002, Judge Aguilar formally informed Ms. Smith that he had been retained by all of Mr. Favela‘s heirs to represent their interests regarding any personal injury claim. On April 16, 2002, Ms. Smith sent a letter complaining about Judge Aguilar‘s solicitation of business. Ms. Smith stated that Judge Aguilar was certainly aware that she represented Mr. Favela in his federal criminal proceedings and was the individual first contacted by the U.S. Marshal Service. Ms. Smith further stated that she was present at Thomason Hospital with Mr. Favela from Wednesday, April 10, 2002, until the early hours of the following morning, Thursday, April 11, 2002, from approximately 10 a.m. to 9 p.m. on that same date, and again on Friday, April 12, 2002, from approximately 9:30 a.m. to 12:30 p.m. and from 3:15 p.m. to 5 p.m. During this time period, it was Ms. Smith‘s understanding, based on her communication with the Favela family that she would be handling any personal injury claim. With respect to the solicitation, Ms. Smith wrote,
I have always upheld an impeccable ethical reputation and I did not, given the very grave nature of Mr. Favela‘s injuries and the family‘s anguish, believe it appropriate or considerate to require the Favelas to sign a formal contract with me at that time. Their word was sufficient for me. I could not have anticipated that an individual newly elected for a judicial position and who I am certain embodies the utmost respect for legal ethics would appear at the hospital as a representative of the Favela‘s church community—and enter into a legal discussion with them when it was well-known by you that I represented them.
After receipt of Ms. Smith‘s letter, Judge Aguilar orally communicated with Mr. Abraham concerning the Favela situation. During their conversation, Judge Aguilar allegedly referred to and described Ms. Smith in a derogatory and unkind manner. Ms. Smith and Judge Aguilar had no further communication or contact until March 2003 at which time Ms. Smith appeared on behalf of Mr. Abraham as counsel for their client David Estrada in the case styled State v. Estrada before Judge Aguilar in the 120th Judicial District Court.
Relators’ recusal motions also detail Judge Aguilar‘s actions as presiding judge in State v. Estrada during March and April 2003, prior to his recusal, which Relators assert evidenced his deep-rooted bias against the Relators. In the Estrada case, Judge Aguilar scheduled that case for trial on a date which Ms. Smith had previously and formally notified the court would conflict with a specially scheduled jury trial in the State of Texas v. Trent Eigner in the 41st Impact Court of El Paso County. At the April 2, 2003 hearing on the motion to continue filed in Estrada based on this scheduling conflict, counsel Ray Velarde appeared before Respondent on behalf of the law office of Joseph (Sib) Abraham, Jr. to urge Mr. Abraham‘s mo-
In March 2003, Mr. Abraham with counsel Ray Velarde were scheduled for a status conference in an unrelated civil forfeiture case before Judge Aguilar. When associate Ms. Smith failed to appear precisely at 9:30 a.m., Judge Aguilar sua sponte granted a post answer default judgment in favor of the State of Texas. Ms. Smith was admittedly tardy to the conference because she was still appearing before the Hon. David Briones, a federal district judge for the Western District of Texas, El Paso Division in three cases. Prior to the status conference, the State and claimants had been involved in settlement negotiations, which they continued after the judge‘s action. However, upon information and belief, counsel understood that Judge Aguilar would not accept their settlement agreement or an agreed judgment. On April 4, 2003, Mr. Abraham, Ms. Smith, and Mr. Velarde filed a motion for new trial in the civil case, and attached to their April 11 amended motion a letter from Judge Briones to Judge Aguilar, confirming that Ms. Smith was in his court for mandatory docket call, which lasted longer than he had anticipated. Though the State did not oppose the motion for new trial, Judge Aguilar denied the motion at the April 25 hearing on the matter.
On May 2, 2003, Mr. Abraham and Ms. Smith filed a motion to recuse based on the allegations described above on behalf of their client in State of Texas v. David Estrada. This motion is identical to the recusal motions the attorneys would later file in Relator Chavez‘s case on May 28, 2003 and Relator De Leon‘s case on June 5, 2003. In the Estrada case, Judge Aguilar properly referred the motion to the administrative judge of the Sixth Administrative Judicial Region. The Honorable Kathleen Cardone conducted a hearing on the Estrada recusal motion on May 30, 2003. At the Estrada hearing, Judge Aguilar was represented by attorney ad litem Stuart Leeds. On June 2, 2003, Judge Cardone granted the motion to recuse in State v. Estrada, finding that grounds existed to justify recusal of Judge Aguilar based on his alleged bias against Mr. Abraham and Ms. Smith. Judge Cardone ordered Judge Aguilar to recuse himself from further proceedings in the Estrada case. On June 3, 2003, Judge Aguilar filed a motion for reconsideration in the Estrada case, to which Mr. Abraham and Ms. Smith as Estrada‘s counsel filed a response. On June 5, 2003, Judge Aguilar filed a reply to the response, alleging for the first time that the motion to recuse in Estrada did not state adequate grounds for recusal and was not “prima facie adequated [sic].”
On the same date, in Relator Chavez‘s case, Stuart Leeds, acting as “Attorney ad Litem for Judge Aguilar,” filed a “Motion to Strike/Quash Motion to Recuse.” In the motion, Judge Aguilar through his ad litem counsel requested that he, Judge Aguilar, strike the motion to recuse filed on May 28, 2003, because it failed to state with “particularity” the grounds for recusal, was based on “unidentified hearsay,” was not “facially sufficient and prima facie adequated [sic],” and “[did] not even allege proper grounds for recusal.” On June 6, 2003, Judge Aguilar granted his own motion to quash Relator Chavez‘s recusal motion, finding that the recusal motion was facially insufficient, not “prima facie adequated [sic],” and had failed to allege proper grounds for recusal. In ruling on his own motion, Judge Aguilar stated, “a proper Motion to Recuse is not before the trial judge and this case will not be referred to the presiding judge of the administrative judicial district to have another judge hear the motion.” On the same date, Judge
DISCUSSION
Disqualification and Recusal
A trial judge may be removed from presiding over a particular case because: (1) he/she is disqualified under
With respect to disqualification,
No judge shall sit in any case wherein he may be interested, or where either of the parties may be connected with the judge, either by affinity or consanguinity, within such a degree as may be prescribed by law, or when the judge shall have been counsel in the case.
Recusal, on the other hand, includes those instances in which a judge voluntarily steps down and those instances in which a judge is required to step down on a motion of a party for reasons other than those enumerated as grounds for disqualification in the Texas constitution. Degarmo v. State, 922 S.W.2d 256, 267 (Tex. App.—Houston [14th Dist.] 1996, writ ref‘d). Rule 18a of the Texas Rules of Civil Procedure governs recusal of judges. See
In criminal cases, the law has developed that a criminal trial judge may make an initial determination as to whether the recusal motion conforms with Rule 18a(a).3 See Arnold, 853 S.W.2d at 544-45 (finding that appellants’ recusal motions failed to comply with the ten-day notice provision of Rule 18a); Moorhead v. State, 972 S.W.2d 93, 95 (Tex. App.—Texarkana 1998, no pet.) (no error for failure to refer where recusal motion was unverified); Sanchez v. State, 926 S.W.2d 391, 396 (Tex. App.—El Paso 1996, writ ref‘d) (a trial judge may properly make the initial determination as to whether a recusal motion is in compliance with the rule); Bruno v. State, 916 S.W.2d 4, 8 (Tex. App.—Houston [1st Dist.] 1995, writ ref‘d) (trial judge inaction on defective motion was not error); Vargas v. State, 883 S.W.2d 256, 259 (Tex. App.—Corpus Christi 1994, writ ref‘d) (mandatory referral provisions not triggered when recusal motion is procedurally defective). If the motion is procedurally sound, the criminal trial judge, as in civil cases, is required to either self recuse or to refer the recusal motion to the presiding judge of the administrative region for assignment to another judge for hearing and disposition. Bruno, 916 S.W.2d at 8.
Mandamus Relief
This Court has authority to grant mandamus relief if the relator can demonstrate that (1) he has no other adequate legal remedy; and (2) under the relevant facts and law, the act sought to be compelled is purely ministerial. State ex rel. Hill v. Court of Appeals for Fifth Dist., 34 S.W.3d 924, 927 (Tex. Crim. App. 2001) (orig. proceeding), citing Dickens v. Court of Appeals for Second Supreme Judicial Dist. of Texas, 727 S.W.2d 542, 550 (Tex. Crim. App. 1987) (orig. proceeding). An act is “ministerial” if the relator has a clear right to the relief sought, that is, the relief sought must be “clear and indisputable” such that its merits are “beyond dispute” with “nothing left to the exercise of discretion or judgment.” State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 198 (Tex. Crim. App. 2003) (orig. proceeding). If an adequate remedy at law is available in the form of an appeal, it is an abuse of discretion for this Court to grant mandamus relief. Alvarez v. Eighth Court of Appeals of Tex., 977 S.W.2d 590, 592 (Tex. Crim. App. 1998).
Judge Aguilar has filed a response to Relators’ petitions for writ of mandamus, in which inter alia, he argues that under Woodard v. The Eighth Court of Appeals,
By its broad spectrum, the Woodard decision is a singular authority to Texas courts that in all criminal cases where a party has filed a procedurally sound motion to recuse, but the trial judge refuses to comply with Rule 18a, courts of appeal have no mandamus authority to order that trial judge to take action, even though such action is mandatory under Rule 18a(c). In making this determination, the Court relied on In re Union Pacific Resources Co., in which the Texas Supreme Court held that a court of appeals abused its discretion by issuing a writ of mandamus when the complaining party had an adequate remedy by appeal upon denial of the recusal motion. See In re Union Pacific Resources Co., 969 S.W.2d at 429. In In re Union Pacific Resources Co., the complaining party sought mandamus relief from a presiding judge‘s denial of the motion to recuse following a rehearing. Id. at 428. Under the facts of that case, the trial judge had properly referred the party‘s motion to the presiding judge for the administrative judicial district for disposition. Id. at 427-28. In its opinion, the Supreme Court noted that its Rules of Civil Procedure, citing to Rule 18a(f), expressly provide for appellate review from a final judgment after denial of a recusal motion. Id. at 428.
Unlike the complaining party in In re Union Pacific Resources Co., the Relators in the present cases, like the complaining party in Woodard, did not have their recusal motions properly “denied” after a hearing before an assigned judge. The language of Rule 18a(f) suggests to this Court that the rule addresses those instances where a recusal motion was properly denied, but does not expressly provide an adequate remedy where a criminal trial judge takes no action or inappropriate action on a recusal motion that is in procedural compliance or denies that motion essentially on its merits without referral or even a hearing.4 The San Antonio Court
Moreover, we fail to see how Relators Chavez and De Leon will have an adequate remedy at law in their cases under the circumstances. As Justice Overstreet noted in his dissent in Woodard, “[r]equiring a defendant to go to trial without having his recusal motion ruled upon in compliance with Rule 18a is patently unfair, as well as inefficient and wasteful of judicial resources.... Sometimes a remedy at law that exists may nevertheless be so uncertain, tedious, burdensome, slow, inconvenient, inappropriate, or ineffective as to be deemed inadequate.” Woodard, 991 S.W.2d at 797 (Overstreet, J., dissenting). We add that such circumstances will also needlessly burden our state prosecutorial resources and will cause defendants and crime victims to endure yet another trip through the criminal justice system, which all parties could have avoided through the availability of appropriate mandamus relief. And then there is a fundamental public interest of confidence in the administration of justice so that in the words of Lord Hewart: “justice should not only be done, but should manifestly and undoubtedly be seen to be done.” R. v. Sussex Justices, Ex parte McCarthy (1924) 1 KB 256, 259, All ER Rep 233, 234.
In this case, Judge Cardone conducted a hearing on an identical recusal motion and found that grounds existed to justify Judge Aguilar‘s recusal based on his alleged bias against Mr. Abraham and Ms. Smith—the same exact grounds alleged in Relators’ motions to recuse. The Estrada motion was filed contemporaneously to those in Relators’ causes. In her Estrada ruling, Judge Cardone implicitly found the same bias alleged by Relators. Given the proximity of events, it is doubtful that the alleged bias against the real parties in interest had faded. At oral argument, the parties in effect conceded that any alleged bias would have persisted in such a short time frame. If Relators had been given a hearing on their recusal motions as required under Rule 18a, they would have had an opportunity to submit the Estrada ruling as evidentiary grounds for collateral estoppel. Through his actions, Judge Aguilar has effectively limited Relators’ ability to obtain a fair hearing and their ability to effectively utilize the appellate
In the present cases, Judge Aguilar clearly violated a ministerial duty by failing to either recuse himself or refer the procedurally sound recusal motions to the presiding judge for disposition, acting instead in direct contravention of Rule 18a(c). Despite our reservations as to the adequacy of a remedy of appeal under the circumstances, we are bound to follow the precedent set forth in Woodard and find that we have no mandamus authority to address a trial judge‘s abusive noncompliance with Rule 18a upon the filing of nondefective motions to recuse.
Therefore, we deny mandamus relief in each cause.
BARAJAS, C.J., concurring.
LARSEN, J., dissenting.
RICHARD BARAJAS, Chief Justice, concurring.
I concur in the result reached by the majority in that this Court is duty-bound to follow established caselaw, as formulated by the Texas Court of Criminal Appeals. I would join in reluctantly denying mandamus relief for that reason alone.
I, nonetheless, must take the extraordinary step of echoing Justice Larsen‘s position that the Texas Court of Criminal Appeals should revisit Woodard v. The Eighth Court of Appeals, 991 S.W.2d 795 (Tex. Crim. App. 1998). I would strongly concur in Justice Larsen‘s statement that forcing a criminal defendant to trial before appellate relief can be obtained on a trial court‘s failure to perform an otherwise ministerial duty is unfair, totally inefficient, and a waste of judicial resources, especially in light of the draconian budget cuts that the Texas judicial system was forced to undergo. Moreover, forcing a trial under such circumstances, when a matter can easily be resolved through mandamus, places an undue burden on the prosecution to reassemble witnesses for a re-trial years later, an undue burden on local government who bear the cost of assembling juries and associated costs of trial, and more important, on the often neglected victim of crime who may be needlessly re-victimized all because a trial judge refused to perform a ministerial act. I would respectfully request that the Texas Court of Criminal Appeals revisit Woodard.
LARSEN, Justice, filed a dissenting opinion.
SUSAN LARSEN, Justice, dissenting.
I respectfully dissent. Although I realize the majority feels constrained to follow the Court of Criminal Appeals opinion in Woodard v. The Eighth Court of Appeals, 991 S.W.2d 795 (Tex. Crim. App. 1998), it is my view that the facts in these cases are distinguishable. Moreover, I am compelled to voice my conclusion that Woodard is simply wrong, and I write to urge that the Court of Criminal Appeals revisit it. I write briefly to explain my thinking.
First, I believe the facts here beg for immediate remedy. Three identical recusal motions were filed by Mr. Abraham and Ms. Smith. Judge Cardone, assigned to hear the first motion, has already found that grounds exist to justify recusal. She granted the motion on June 2, 2003. The respondent judge then obtained an attorney ad litem. The ad litem immediately filed, on the challenged judge‘s behalf, motions to strike or quash the two remaining recusal motions. The respondent judge then granted his own motion in the face of the existing recusal order based on the same facts. His grounds for doing so were not objectively verifiable, but rather that the motions were “facially insufficient and not prima facie adequated [sic].”
Another remarkable fact in these cases is the appointment of two attorneys ad
Moreover, for the reasons outlined by Justice Overstreet in his dissent to that case, I think Woodard was wrongly decided.1 Forcing a criminal defendant to trial before he can receive appellate relief on the trial court‘s failure to perform a ministerial duty is unfair, inefficient, and wasteful of judicial resources. See Woodard, 991 S.W.2d at 797 (Overstreet, J. dissenting). An appeal is not an adequate remedy when the trial has been conducted by a trial judge tainted by motions to recuse which he has denied, particularly where an identical motion has been granted by an impartial assigned judge, and where the trial judge has obtained counsel to resist the recusal motions.
For these reasons, I would conditionally grant mandamus.
Winfried HEIRINGHOFF, Appellant, v. The STATE of Texas, Appellee.
No. 08-02-00228-CR.
Court of Appeals of Texas, El Paso.
Aug. 22, 2003.
Rehearing Overruled Sept. 17, 2003.
Discretionary Review Refused April 28, 2004.