COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-155-CV
IN RE RUSSELL JAY REGER
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FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
In one issue, inmates Russell Reger (Appellant) and Randal Caraway
(Intervenor), who were tried for murder in 1996, assert that Judge Jeff Walker
abused his discretion “by failing to first address the prima facie contention of
his conflict of interest and disqualifications in this case before issuing his illegal
null and void order of dismissal, dated April 25, 2007.”
1
… See T EX. R. A PP. P. 47.4.
II. Background
This litigation began when Reger filed a rule 202 petition to take the
depositions of the Honorable Clyde Ashworth and Ouida Stevens concerning his
allegation that the Honorable James K. Walker, a retired judge who presided at
his murder trial, did not properly preside because of his failure to timely take a
particular oath. Caraway filed a motion to intervene in the suit, noting that,
with regard to his intervention, “This Action Is Not a Suit” concerning a similar
allegation that the Honorable Bill Burdock also did not properly preside over his
trial.2
Judge Jeff Walker signed an order of dismissal in this litigation on April
25, 2007, in accordance with section 14.003 of the civil practice and remedies
code. See T EX. C IV. P RAC. & R EM. C ODE A NN. § 14.003 (Vernon 2008). Reger
subsequently filed “Petitioner Reger’s Motion to Disqualify/Recuse Judge Jeff
Walker.” A hearing was held on this recusal motion by another district court
judge, with Reger and Caraway appearing by phone, and the motion was denied
June 29, 2007. Motions for new trial, motions for leave to file mandamus, and
2
… This court has previously disposed of Caraway’s attempt to take
Judge Burdock’s deposition. See In re Caraway, No. 02-05-00359-CV, 2007
WL 1879768, at *6-7 (Tex. App.—Fort Worth June 28, 2007, orig.
proceeding) (mem. op.).
2
objections to the denial of the recusal/disqualification motion were also filed,
along with this appeal.
III. Analysis
Reger and Caraway initially complained that Reger had instructed the
district clerk in a letter not to file the rule 202 petition in Judge Jeff Walker’s
court because he had previously recused himself during Caraway’s rule 202
petition case. There is no provision by statute or rule that would allow a litigant
to tell the district clerk in which court a suit may not be filed.3 Further, cases
are assigned to courts in Tarrant County at random by computer generated
selection, not by the whim of the district clerk.
Section 14.003(a) of the civil practice and remedies code allows a court
to dismiss an inmate’s claim even before service of process if the court
determines that the claim is frivolous and malicious, which the trial court found
in this case. T EX. C IV. P RAC. & R EM. C ODE A NN. § 14.003(a). That issue,
however, is not before us. Rather, according to Reger and Caraway, the issue
is whether Judge Jeff Walker failed to disqualify or recuse himself.4
3
… Nor is there any that would allow a litigant to tell the district clerk in
which court to file a lawsuit.
4
… Or, at least, that is what we deduce from the wording in their issue
and brief.
3
Because the motion to recuse/disqualify Judge Jeff Walker was not filed
until after he had dismissed Reger and Caraway’s case, he appropriately
considered the matter pending in his court without recusing or disqualifying
himself. See T EX. R. C IV. P. 18a(c). The later-filed motion to recuse/disqualify
was heard by a different judge, who denied it.
The grounds for disqualification are found in Article V, Section 2 of the
Texas Constitution and in Rule 18b(1) of the Texas Rules of Civil Procedure.
See T EX. C ONST. art. V, § 2; T EX. R. C IV. P. 18b(1). There was no evidence
before the court that any of these disqualification grounds were applicable. The
grounds for recusal are found exclusively in Rule 18b(2) of the Texas Rules of
Civil Procedure. T EX. R. C IV. P. 18b(2). Having reviewed the “Motion to
Disqualify/Recuse Judge Jeff Walker” and the transcript of the motion hearing,
we hold that the court did not err in denying the motion. We would also
observe that, just because a trial judge voluntarily recuses himself in one case, 5
this does not necessarily require his recusal in another case that may or may
5
… In their appellate brief, Reger and Caraway quote the following from
Judge Jeff Walker’s letter of recusal in Caraway’s previous case: “[S]olely
based on your pleading that ‘Judge Jeff Walker should be recused because
there is a propensity (sic) that he may become a party to the potential claim or
suit.’ I am going to voluntarily step aside and assign another judge to hear this
matter.”
4
not appear to be identical, and that may or may not have, upon examination,
identical reasons articulated with regard to the issue of recusal. 6
Reger and Caraway also complain that they did not find out in time that
their prohibited and ineffective directive to the district clerk had, of course, not
been followed, and were unable to file their Motion to Recuse/Disqualify before
the court dismissed their case. This argument is without merit because it is
mooted by the fact that their motion was heard by a different judge and
properly denied.
IV. Conclusion
Having overruled Reger and Caraway’s single issue, we affirm the trial
court’s judgment.
BOB MCCOY
JUSTICE
PANEL B: GARDNER, WALKER, and MCCOY, JJ.
DELIVERED: May 8, 2008
6
… We refer to this as the “Grapefruit Rule.” Grapefruit look alike on the
outside, but when you open them up, one can be pink and one can be yellow.
Thus, you cannot tell what you have in a grapefruit color until you examine the
individual grapefruit’s inside.
5