NO. 07-04-0465-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
OCTOBER 15, 2004
______________________________
IN RE R. WAYNE JOHNSON, RELATOR
_______________________________
Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINION ON MOTION FOR RECUSAL
AND PETITION FOR WRIT OF MANDAMUS
Relator R. Wayne Johnson brings this second petition for writ of mandamus directed
against Honorable J. Blair Cherry, judge of the 72nd District Court of Lubbock County, with
respect to a suit relator brought in that court. Relator has contemporaneously filed a
motion to recuse this court in this proceeding. We deny both the motion and petition.
Relator, a Texas prison inmate acting pro se, filed suit against Texas Tech University
and Pat Campbell, which suit was assigned cause number 2004-526,504 in the 72nd
District Court. On June 22, 2004, the defendants answered and gave notice that relator
had been found to be a vexatious litigant under Chapter 11 of the Civil Practice and
Remedies Code (Vernon 2002). On June 25, 2004, the trial court rendered an order
dismissing the suit for failure to comply with the procedural requirements applicable to
vexatious litigants. No appeal was perfected from that order. Relator filed his first petition
for writ of mandamus in this court on August 5, 2004. We denied the petition, finding
relator failed to demonstrate the absence of an adequate remedy by appeal. See In re
Johnson, No. 07-04-416-CV (Tex.App.–Amarillo, August 23, 2004) (orig. proceeding) (per
curiam). Relator filed the present petition on September 15, 2004.
We initially address relator’s motion to recuse, which seeks recusal of the entire
court. Relator’s stated grounds for the court’s recusal include statements that the court has
ignored the law in “several past mandamus actions,” that our August 23 opinion
demonstrates a bias and prejudice against him, and that our failure to follow the law
contravenes the justices’ oaths of office, the Code of Judicial Conduct and our duty to
follow the requirements of the United States Constitution rather than contrary procedural
rules. Relator’s motion refers to the court as a whole. It does not ask for the recusal of one
or more individual justices of the court, nor does it assert that grounds exist for the recusal
of any individual justice of this court. See Tex. R. App. P. 16.2; Tex. R. Civ. P. 18b.
Compare McCullough v. Kitzman, 50 S.W.3d 87 (Tex.App.–Waco 2001, pet. denied)
(motion to disqualify or recuse “each of the justices” of the court). Relator’s motion does
not properly invoke the procedures governing recusal of justices, see Rule of Appellate
Procedure 16.3, and is denied.
A writ of mandamus issues only to correct a clear abuse of discretion or the violation
of a duty imposed by law when there is no other adequate remedy at law. Canadian
Helicopters Ltd. v. Wittig, 876 S.W.2d 304, 305 (Tex. 1994) (orig. proceeding). It is the
relator’s burden to show entitlement to the relief being requested. See generally Johnson
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v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding). Relator’s
petition seeks a writ requiring the trial court to rule on a motion to strike the defendant’s
pleadings, on which the petition contends the court improperly failed to rule before signing
the judgment of dismissal. While a trial court’s consideration of and ruling on a properly-
filed and pending motion are said to be ministerial acts, a petition for mandamus to require
the trial court to rule must demonstrate both that the motion has been brought to the court’s
attention and the court’s refusal to rule. See Stoner v. Massey, 586 S.W.2d 843, 846 (Tex.
1979) (orig. proceeding); Ex parte Bates, 65 S.W.3d 133, 135 (Tex.App.– Amarillo 2001)
(orig. proceeding). See also Metzger v. Sebek, 892 S.W.2d 20, 49 (Tex.App.–Houston [1st
Dist.] 1994, writ denied) (court not required to consider a motion not called to its attention).
Relator’s petition asserts simply that he filed the motion to strike and the trial court did not
rule on it. Merely that a motion is filed with a court clerk does not demonstrate that it has
been brought to the judge’s attention. See In re Chavez, 62 S.W.3d 225, 228
(Tex.App.–Amarillo 2001) (orig. proceeding). The record does not show, and relator does
not allege, that he brought the motion to strike to the court’s attention before entry of the
judgment of dismissal, or by motion for new trial or other post-judgment motion after its
entry. See Tex. R. Civ. P. 329b.
Further, the record before us shows the dismissal of trial court cause number 2004-
526,504 occurred on June 25, 2004, after defendants’ notice concerning relator’s status as
a vexatious litigant was filed. As noted, the judgment of the trial court, which relator did not
appeal, dismissed the suit because of relator’s failure to comply with the procedural
requirements applicable to vexatious litigants under Chapter 11 of the Civil Practice and
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Remedies Code. Relator’s petition for mandamus complains of the court’s failure to strike
pleadings filed earlier in the litigation. Such pleadings could have had no bearing on the
court’s dismissal of relator’s suit under Chapter 11. We have previously determined that
relator had an adequate remedy by appeal for the dismissal. His present petition does not
demonstrate otherwise. For these reasons, relator’s petition does not show entitlement to
a writ of mandamus, and is denied.
Per Curiam
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in Re R Wayne Johnson, Relator
Combined Opinion