In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-05-074 CV
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IN RE EDITH DEMAYO
On March 31, 2005, Edith DeMayo filed a petition for writ of mandamus. Because the petition is filed within fifteen days of the issuance of our opinion denying relief in an identical petition, we address the petition as a motion for rehearing. We issue this opinion on rehearing to more thoroughly explain our opinion on the issues presented by the relator.
The relator complains the trial court has not granted or referred her "Motion to Recuse Judge and Order a New Trial," filed February 16, 2005. (2) She does not ask this Court to order the judge to act on the pending motion. Instead, the relator seeks the judge's removal from the case. The motion to recuse is not verified, as required by the rules of civil procedure. Tex. R. Civ. P. 18a (a). Failure to comply with the procedural requisites for recusal waives the complaint. Spigener v. Wallis, 80 S.W.3d 174, 180 (Tex. App.-Waco 2002, no pet.). Because the motion is not verified, the relator is not entitled to have the judge removed from the case, nor is she entitled to appointment of a new judge. (3)
The relator requests that we "[m]ake a finding that a pro-se litigant is to be treated with the same respect for her rights as a person represented by counsel." A pro se litigant is held to the same standards as a licensed attorney and must comply with the rules of procedure applicable to the case. Greenstreet v. Heiskell, 940 S.W.2d 831, 834-35 (Tex. App.-Amarillo 1997, no writ). The record presented to us suggests that the trial court's actions in the case may be attributable to defects in the papers filed by the relator. Absent a clear abuse of discretion by the trial court, mandamus is not appropriate. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992).
The relator also seeks mandamus relief on her motion to proceed as an indigent person. Because the relator has an adequate remedy in the appellate process, mandamus is not available. In re Arroyo, 988 S.W.2d 737, 739 (Tex.1998).
Finally, the relator seeks an order compelling the trial court to set a hearing on temporary orders. The relator's motion for temporary orders is not included in the mandamus record, but we take judicial notice of the "Motion for Emergency Temporary Orders Pending Appeal" attached as an exhibit to the March 31, 2005, "Request for Reconsideration on Motion for Temporary Orders," filed in DeMayo's appeal from the decree of divorce. (4) See Stroud v. VBFSB Holding Corp., 917 S.W.2d 75, 78 (Tex. App.-San Antonio 1996, writ denied) (A Court of Appeals may take judicial notice of its own records). The motion refers to an order that is not attached to the motion, and requests wage withholding and an order to pay an existing child support arrearage. Assuming the motion is requesting that the pre-decree temporary orders continue during the appeal, we note that the divorce decree has not been superseded. A trial court may enter temporary orders pending appeal. Tex. Fam. Code Ann. § 109.001 (Vernon 2002). Because this is a situation where the final decree has not been superseded and may be enforced, the relator has not shown that the trial court abused its discretion by failing to enter temporary orders pending appeal. (5)
The motion for rehearing is overruled.
PER CURIAM
Opinion Delivered April 15, 2005
Before McKeithen, C.J., Kreger and Horton, JJ.
1. Tex. R. App. P. 47.4.
2. The motion alleges grounds for recusal rather than disqualification.
3. A different issue might be presented if the petition sought a trial court ruling on
the motion to recuse. We note, however, that the relator cannot demonstrate any harm to
her arising from inaction on a facially invalid motion.
4. The clerk's record has not yet been filed in Appeal No. 09-05-068 CV.
5. The trial court retains authority during an appeal to enforce a final divorce
judgment that has not been superseded, and may enforce the judgment by contempt.