786 S.W.2d 737 | Tex. App. | 1989
ORIGINAL PROCEEDING
In this proceeding, Jesse Harold Mauldin and Johnny Howard Mauldin, Relators, seek a writ of mandamus compelling the recusal of the Honorable William E. Coats, Respondent in the underlying criminal prosecutions of Relators.
On November 1, 1989, we granted Rela-tors’ motion for leave to file the petition for writ of mandamus, and stayed further proceedings in the underlying criminal cases. On November 7, 1989, we heard oral argument on submission of the cause. On consideration of the record, the briefs and arguments of the parties, we have concluded that Relators' petition should be denied.
Relators contend that the pager is a device capable of intercepting wire or oral communications as those terms are defined in Tex.Code Crim.Proc.Ann. art. 18.20, § 1(1), (2), and (3) (hereinafter article 18.-20), and that although Judge Coats was not authorized under article 18.20 to order the use of the pager, when he did, he thereby became disqualified from sitting in the prosecution of the cases below by virtue of article 18.20, section 9(h), reading:
A judge who issues an order authorizing the interception of a wire or oral communication may not hear a criminal prosecution in which evidence derived from the interception may be used or in which the order may be an issue.
Relators argue that because the device is capable of displaying a coded message in the form of numbers, it is a device, the use of which is governed by the provisions of article 18.20, and hence section 9(h) of that article casts an absolute duty on Judge Coats to recuse himself in the cases. We do not agree.
The statute defines “intercept” to mean “the aural acquisition of the contents of a wire or oral communication through the use of an electronic, mechanical, or other device.” Tex.Code Crim.Proc.Ann. art. 18.-20, § 1(3) (Vernon Supp.1989).
. In Cause Nos. 7-88-263 and 7-88-266 on the docket of the 7th Judicial District Court of Smith County, Texas.
. The version of article 18.20 applicable to the cause before us.