11th Court of Appeals
Eastland, Texas
Memorandum Opinion
Vecentie Morales, Jr.
Appellant
Vs. No. 11-04-00206-CV -- Appeal from Palo Pinto County
Ira Mercer
Appellee
Vecentie Morales, Jr. sued Ira Mercer alleging that Mercer brutally assaulted him while he was in custody. Morales sought $100,000 in actual damages and $250,000 in punitive damages. The trial court, Judge Jerry Ray presiding, dismissed Morales=s claims pursuant to TEX. CIV. PRAC. & REM. CODE ANN. ' 14.004(a) (Vernon 2002). We affirm.
Morales argues on appeal that Judge Ray should have been recused and that Judge Ray Ahad no legal authority to make a ruling.@ We disagree.
In his motion to recuse, Morales stated that Judge Ray should be recused pursuant to TEX.R.CIV.P. 18b and TEX. CIV. PRAC. & REM. CODE ANN. ' 30.016 (Vernon Supp. 2004 - 2005)[1] based on Judge Ray=s prior service as Palo Pinto County District Attorney. Morales=s motion did not state a ground which would require recusal pursuant to Rule 18b. The record before this court does not support Morales=s arguments. The standard of review for an order denying a motion to recuse is abuse of discretion. TEX.R.CIV.P. 18a(f); In re M.C.M., 57 S.W.3d 27, 33 (Tex.App. - Houston [1st Dist.] 2001, pet=n den=d). Judge Jeff Walker, the Presiding Judge of the Eighth Administrative Region, did not abuse his discretion in denying Morales=s motion.
TEX. CIV. PRAC. & REM. CODE ANN. ' 14.003 (Vernon 2002) provides that a trial court may dismiss a claim if the court finds that the claim is frivolous or malicious. To allow the trial court to make that determination, the legislature enacted TEX. CIV. PRAC. & REM. CODE ANN. ' 14.004 (Vernon 2002). Bell v. Texas Department of Criminal Justice - Institutional Division, 962 S.W.2d 156, 158 (Tex.App. - Houston [14th Dist.] 1998, pet=n den=d). Section 14.004 requires an inmate who files an affidavit or unsworn declaration of inability to pay costs to file a separate affidavit of declaration. The record before this court reflects that Morales failed to comply with the mandatory requirements of Section 14.004. Therefore, the trial court did not abuse its discretion in dismissing Morales=s claims.
All of Morales=s contentions have been considered. Each is overruled.
The order of the trial court is affirmed.
PER CURIAM
August 25, 2005
Not designated for publication. See TEX.R.APP.P. 47.2(a).
Panel consists of: Wright, J., and McCall, J.
[1]Section 30.016 applies to a Atertiary recusal motion@ or a third or subsequent motion filed by the same party in a case.