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
OPINION DISSENTING FROM
THE DENIAL OF EN BANC CONSIDERATION
I respectfully dissent from the denial of en banc consideration of this case. Appellant filed an inadequate motion to recuse the trial judge and waived her right to complain about this issue on appeal. The panel's holding that the trial judge was required either to "recuse himself or refer [appellant's motion to recuse] for determination by another judge" is in error and contrary to this Court's precedent, and extraordinary circumstances require en banc consideration. See Tex. R. App. P. 41.2(c).
Here, appellant, in her motion to recuse, asserts that the trial judge "made a factual finding that Sun was in ‘significant pain.'" Appellant alleges that "[s]uch a view could cause prejudice and bias and impartiality" because the judge was "likely [to] feel inclined to decide to make a ruling that would remove Sun from life support in order to relieve him of the pain." From this, appellant concludes that the trial judge had "a preconceived factual opinion that creates bias and prejudice that prevents [him] from making a fair decision."
A party in a hearing or trial in a statutory probate court may file a motion stating grounds for the recusal or disqualification of a judge. Tex. Gov't Code Ann. § 25.00255(a) (Vernon 2004); Tex. R. Civ. P. 18a(a). Such a motion "must" be verified and "state with particularity" the "grounds" for recusal or disqualification of the judge. Tex. Gov't Code Ann. § 25.00255(b) (Vernon 2004); Tex. R. Civ. P. 18a(a). The allegations in the motion must be based on "personal knowledge" or "specifically state" the grounds for the party's belief of the allegations. Tex. Gov't Code Ann. § 25.00255(b)(3) (Vernon 2004); Tex. R. Civ. P. 18a(a). Once such a motion is filed in statutory probate court, the trial judge must either (1) recuse himself or (2) request that the presiding judge of the statutory probate courts assign a judge to hear the motion. Tex. Gov't Code Ann. § 25.00255(f) (Vernon 2004); Tex. R. Civ. P. 18a(c).
However, when a recusal motion is filed, the trial judge against whom the motion is directed may properly make an initial decision of whether the motion conforms with Rule 18a. Barron v. State, 108 S.W.3d 379, 382 (Tex. App.—Tyler 2003, no pet.). We have previously held that if a party does not comply with the mandatory requirements of Rule 18a, she waives her right to complain of a judge's refusal to recuse himself. Gill v. Texas Dep't of Criminal Justice, 3 S.W.3d 576, 579 (Tex. App.—Houston [1st Dist.] 1999, no pet.). In construing a previous version of Rule 18a, which provided that a trial judge was required to request that the presiding judge assign another judge to hear a motion to recuse, this Court noted that:
While rule
18a does mandate a hearing on a motion to recuse, such requirement is not
triggered unless the recusal motion states valid grounds for
disqualification.
Texaco, Inc. v. Pennzoil, Co., 729 S.W.2d 768, 855 (Tex. App—Houston [1st Dist.] 1987, writ ref'd n.r.e.). We held that "Texaco's rule 18a motion was inadequate" and "no additional hearing was mandated." Id. at 856. To support our holding we cited Gaines v. Gaines, 677 S.W.2d 727, 731 (Tex. App.—Corpus Christi 1984, no writ), wherein the court held that the contentions raised in a motion to disqualify were "without merit" because the appellant did "not establish enough information to warrant referral of the motion to the presiding judge."
Likewise, here, appellant's cursory and conclusory motion to recuse the trial judge was inadequate because appellant did not state with particularity enough information to warrant referral of the motion to the presiding judge of the statutory probate courts. She simply did not "specifically state" grounds for her belief that the trial judge was biased or prejudiced. The fact that the trial judge expressed, in the context of expediting the case, concern that Sun was experiencing "significant pain," in no way supports an inference that the trial judge had "a preconceived factual opinion that creates bias and prejudice."
Because appellant's motion to recuse the trial judge did not comply with the mandatory requirements of Government Code section 25.00255 and Rule 18a, I would hold that appellant has waived her right to complain of the trial judge's refusal to request that the presiding judge of the statutory probate courts assign a judge to hear the motion. The panel's holding that the trial judge was required either to "recuse himself or refer [appellant's motion to recuse] for determination by another judge" is in error and contrary to our previous holdings in Texaco and Gill.1 Accordingly, I would overrule appellant's first issue and reach the merits of the appeal.
Terry Jennings
Justice
Panel consists of Chief Justice Radack and Justices Higley and Bland.
NOTES
1. The panel goes to great lengths to distinguish both Gill and Texaco. Their distinctions are without a difference. A party can either waive their right to complain of the issue of recusal or they cannot; this Court has already held that the recusal issue can be waived.