In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-08-336 CV
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IN RE DWIGHT MCDUFFIE
Dwight McDuffie, an inmate in the Correctional Institutions Division of the Texas Department of Criminal Justice, seeks mandamus relief on three issues. First, he complains that the district clerk abused her discretion by failing to issue citation in a case in which he filed an affidavit of inability to pay costs. Second, McDuffie complains that the trial court abused its discretion in denying his affidavit of inability to pay costs. Third, McDuffie contends that the judge assigned to hear McDuffie's motion to recuse, abused his discretion in ruling on the motion without first conducting an evidentiary hearing. We deny the petition.
Our power to issue a writ of mandamus does not extend to the district clerk unless the relator establishes that the writ must issue to enforce our jurisdiction. See Tex. Gov't Code Ann. § 22.221 (Vernon 2004). The issuance of citation to appear in the trial court does not implicate the jurisdiction of the appellate court.
McDuffie complains the trial court denied his affidavit of indigence without a contest or a hearing required by Rule 145 of the Texas Rules of Civil Procedure and prior to issuance of citation. Tex. R. Civ. P. 145. McDuffie filed an affidavit of inability to pay costs in the trial court, but the mandamus record does not show that he filed the required trust account statement. Tex Civ. Prac. & Rem. Code Ann. § 14.004(c) (Vernon 2002). The requirements contained in Chapter 14 of the Civil Practice and Remedies Code apply irrespective of Rule 145 of the Texas Rules of Civil Procedure. See id. § 14.014. Failure to file a certified copy of the trust account statement provides grounds for dismissal prior to issuance of citation. See id. §§ 14.003, 14.004; Thompson v. Rodriguez, 99 S.W.3d 328, 330 (Tex. App.--Texarkana 2003, no pet.). McDuffie filed a motion to recuse the trial judge for bias against the plaintiff. See Tex. R. Civ. P. 18b(2)(b). In the motion, McDuffie contends that "[b]efore the filing of this cause Plaintiff wrote the judge and requested that she investigate the allegations and inform the Parole Board of their findings." In accordance with Rule 18a of the Texas Rules of Civil Procedure, the trial judge declined to recuse herself and forwarded the matter to the presiding judge of the administrative judicial region. See Tex. R. Civ. P. 18a(c). The presiding judge appointed himself to hear the matter and denied the motion to recuse without setting an evidentiary hearing. McDuffie argues that the presiding judge abused his discretion by ruling on the motion without conducting a formal hearing. The ruling on the motion to recuse is reviewable on appeal. See Tex. R. Civ. P. 18a(f). Review on appeal is adequate in a situation where the trial court properly forwarded the motion to recuse to the presiding judge on a motion based upon Rule 18b(2) of the Texas Rules of Civil Procedure. Tex. R. Civ. P. 18b(2); In re Union Pac. Res. Co., 969 S.W.2d 427, 428 (Tex. 1998).
The relator failed to demonstrate his entitlement to mandamus relief. Accordingly, the petition for writ of mandamus is denied.
PETITION DENIED.
PER CURIAM
Opinion Delivered August 14, 2008
Before McKeithen, C.J., Kreger and Horton, JJ.