Johnson, Joe Bailey

















IN THE COURT OF CRIMINAL APPEALS

OF TEXAS




NO. WR-70,149-01


EX PARTE JOE BAILEY JOHNSON, Applicant


ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 31304A IN THE 33RD DISTRICT COURT

FROM BURNET COUNTY


Per curiam.

O R D E R



Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated assault and sentenced to 20 years' imprisonment. The Thirteenth Court of Appeals dismissed his appeal. See Johnson v. State, AP-13-06-00577-CR, (Tex. App.- Corpus Christi, 2007, no pet.) (not designated for publication).

On September 24, 2008, this Court remanded this application to the convicting court because further evidence was needed to evaluate Applicant's first and fourth grounds for review. In response to this Court's remand order, the trial judge supplemented the record with evidence, including an affidavit from trial counsel, a transcription of the court reporter's notes from the plea hearing, the revocation hearing, and the sentencing proceeding in this cause, and a transcription of the court reporter's notes from the plea hearing in another cause. On November 5, 2008, the trial judge entered findings of fact and conclusions of law recommending that relief be denied. However, there is still a fact issue which needs to be resolved.

On November 3, 2008, Applicant filed a motion requesting that the trial judge be recused pursuant to Rule 18a of the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 18a. Pursuant to Rule 18a of the Texas Rules of Civil Procedure, the judge must "either recuse himself or request the presiding judge of the administrative judicial district to assign a judge to hear such motion," once a prima facie adequate and timely recusal motion has been filed. Id. The trial judge must act on the motion "[p]rior to [conducting] any further proceedings in the case[.]" Id. As the motion to recuse was filed before the trial judge acted on this habeas application, there is a fact issue as to whether trial judge had the authority to act on this application. We hereby request that the trial judge rule on the motion as required by the Texas Rules of Civil Procedure. We offer no opinion as to whether the recusal motion in this particular case has merit.

This application will be held in abeyance until the trial court has resolved the fact issue. The issue shall be resolved within 90 days of this order. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. A supplemental transcript containing the ruling on the recusal motion and any other supplemental documents filed pertaining to the recusal motion shall be returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.







Filed: March 18, 2009

Do not publish