Opinion issued March 1, 2005
In The
Court of Appeals
For The
First District of Texas
NO. 01-05-00143-CV
WANDA HUDSON, AS THE MOTHER OF SUN, Appellant
V.
TEXAS CHILDREN’S HOSPITAL, Appellee
On Appeal from Probate Court No. 4
Harris County, Texas
Trial Court Cause No. 352,526
CONCURRING OPINION
I join the court's opinion and write separately to add two observations.1
First, our holding that the motion to recuse must be referred to another judge for review is not an opinion as to the timeliness or the merit of the motion, nor should it be read as a criticism of the character of the trial judge. See In re Union Pacific Resources Co., 969 S.W.2d 427, 429 (Tex. 1998) (Hecht, J., concurring) ("While no judge likes to think of being perceived as partial, a hearing on a motion to recuse is simply not a trial of the judge's character and should not be treated as such."). Although the motion ultimately may prevail or fail, the method by which our court system handles such motions is fundamental to public confidence in the judiciary. See Johnson v. Pumjani, 56 S.W.3d 670, 672 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (holding that procedurally insufficient motions to recuse must be referred so as to avoid even the appearance of impropriety; court system's handling of motions to recuse "goes to the very heart of the promise of impartiality."). Thus, "[t]he less a judge is involved in recusal proceedings, voluntarily or involuntarily, the better." Union Pacific, 969 S.W.2d at 429 (Hecht, J., concurring).
Second, our own court—as well as other courts of appeals—has taken divergent positions as to whether the sitting judge may deny a recusal motion as procedurally deficient and thus be excused from referring it to another judge for a hearing.2 These opinions differ in result depending upon the circumstances. Such inconsistent decisions create uncertainty for a trial court faced with an untimely or otherwise procedurally defective motion to recuse—sometimes the trial judge may be found to have the authority to deny the recusal motion without referring it, but sometimes not. If a trial judge cannot determine timeliness (and Rule 18a does not provide that he can), then we should say so consistently—so that referral of recusal motions becomes automatic, no matter the circumstance.3 See Tex. R. Civ. P. 18a.
Jane Bland
Justice
Panel consists of Chief Justice Radack and Justices Higley and Bland.
Justice Bland, concurring.
En banc consideration was requested. See Tex. R. App. P. 42.1(c).
A majority of Justices voted against en banc consideration. See id.
Justice Jennings, dissenting from the denial of en banc consideration.
NOTES
1. See In re Union Pacific Resources Co., 969 S.W.2d 427, 429 (Tex. 1998) (Hecht, J., concurring).
2. Compare, e.g., Metzger v. Sebek, 892 S.W.2d 20, 49 (Tex. App.—Houston [1st Dist.] 1994, writ denied) (holding that trial judge must refer issue of timeliness), with Petitt v. Laware, 715 S.W.2d 688, 692 (Tex. App.—Houston [1st Dist.] 1986, writ ref’d n.r.e.) (holding that trial judge excused from referring untimely motion); Leon County v. Grayson, No. 10-03-00101-CV, 2003 WL 21780961, at *2-3 (Tex. App.—Waco July 30, 2003, no pet.) (mem. op.) (majority holding that trial judge must refer motion; dissent contending that motion was untimely and thus judge could deny it), with Spigener v. Wallis, 80 S.W.3d 174, 181 (Tex. App.—Waco 2002, no pet.) (holding that trial judge excused from referring recusal motion because it was not timely filed or verified); In re Rio Grande Valley Gas Co., 987 S.W.2d 167, 178-79 (Tex. App.—Corpus Christi 1999, no pet.) (holding that referral is mandatory, regardless of sufficiency of motion), with Wright v. Wright, 867 S.W.2d 807, 811 (Tex. App.—El Paso 1993, writ denied) (holding that trial judge need not refer untimely motion), and Lamberti v. Tschoepe, 776 S.W.2d 651, 652 (Tex. App.—Dallas 1989, writ denied) (holding that “regardless of the ‘procedural sufficiency’ of the motion, [judge] has only the option to act in one of two ways: to recuse himself, or refer the case to the presiding judge.”).
3. This is not to disagree that, at minimum, the motion must be in writing. See Buckholts Indep. Sch. Dist. v. Glaser, 632 S.W.2d 146, 148 (Tex. 1982).