Johnson v. Smith

O’CONNOR, Justice,

concurring.

Arthur Johnson, an indigent, filed a petition for writ of mandamus complaining about actions of Judges David West and Bradley Smith. Mr. Johnson is involved as a pro se litigant in a number of lawsuits. Mr. Johnson claims that on November 12, 1991, he asked for a court reporter to transcribe a hearing in cause number 89-06337, which request Judge West denied.1

On January 16, 1992, Mr. Johnson filed a motion to recuse Judge West in the 269th District Court of Harris County from his cases. The record contains an order dated January 22, 1992, signed by Judge West refusing to récuse himself and referring *619the matter to the administrative judge for further resolution.

On January 21, 1992, the day before Judge West refused to recuse himself, Judge West signed a series of orders that required Mr. Johnson to post cost bonds in each case for $5,000 or $10,000. In cause numbers 88-44456, 89-06337, 89-09981, and 90-00550, Mr. Johnson is required to post a $10,000 cost bond; in cause numbers 89-06338, 91-23037, and 91-30289, Mr. Johnson required to post a $5,000 cost bond. The total bond requirement is $55,-000. Mr. Johnson claims in his petition for mandamus that Judge West actually signed other orders that require him to post $60,-000 in bonds.

Using the order in cause number 89-06338 as an example, the orders state:

On January 21, 1992 came on to be heard in the above-entitled and numbered proceeding the Court’s own Motion for rule for Costs pursuant to Rule 143, Texas Rules of Civil Procedure. The Court, having heard the testimony of the Plaintiff pro se, and having reviewed the pleadings and proceedings in this cause does hereby find that a Rule for Costs is appropriate for abuse of the legal system and processes of the Court.
IT IS ACCORDINGLY ORDERED that ARTHUR JOHNSON, Plaintiff in the above-entitled and numbered cause of action, be and he is hereby ruled to give security for costs accruing in this suit in the amount of $5,000 for defendants, Jack Swisher & Associates, Jack Swisher, DBA Jack Swisher and Associates), and Virginia Riggs.
IT IS FURTHER ORDERED that on or before twenty (20) days after notice of the entry of this Order, the Plaintiff, ARTHUR JOHNSON shall post a bond to secure the costs in this proceeding in the amount of FIVE THOUSAND AND NO/100 ($5,000) DOLLARS. If ARTHUR JOHNSON fails to comply with this Order, his claim for relief in the above-entitled and numbered cause shall be dismissed with prejudice to reinstatement.
SIGNED on this 21 day of January, 1992.
/s/ David West

The next day, on January 22,1992, Judge West signed an order refusing to recuse himself and referred all of Mr. Johnson’s cases, described as “In Re: Johnson Files,” cause numbers 88-44456, 89-06338, 90-00550, 91-23037, 91-30289, and 89-09981, to the administrative judge for further resolution. Mr. Johnson claims Judge Smith, a visiting judge, denied the motion to re-cuse without a hearing. The record contains a copy of the motion to recuse, across which is written “denied,” with an undecipherable signature, and the date “1-24-92.”

The motion to recuse

The law is clear: Judge West was not at liberty to rule on any other motion once Mr. Johnson filed a motion to recuse. Carson v. Gomez, 841 S.W.2d 491, 492-93 (Tex.App. — Houston [1st Dist.] 1992, no writ) (“Even if the motion were proeedurally defective, the trial judge should have referred the motion so that another judge would make that determination.”); Winfield v. Daggett, 846 S.W.2d 920, 922 (Tex.App.— Houston [1st Dist.] 1993) (orig. proceeding) (not yet reported). In Winfield, we said: “Both rule 18a and Tex.Gov’t Code Ann. § 74.059(c)(3) ... make it clear that once Judge Daggett refused to recuse himself, he had a duty to forward the motion to the presiding judge of the administrative judicial district. He refused to do so. Thus, he violated a duty imposed upon him by law.”

Rule 18a(d) of the Texas Rules of Civil Procedure states in part:

Except for good cause stated in the order in which further action is taken, the judge shall make no further orders and shall take no further action in the case after filing of the motion and prior to a hearing on the motion.

None of the orders requiring cost bonds state that Judge West had good cause for signing them before ruling on the motion for recusal. See Watkins v. Pearson, 795 S.W.2d 257, 259 (Tex.App. — Houston [14th *620Dist.] 1990, writ denied). Once Mr. Johnson filed the motion to recuse Judge West, the only action Judge West could take was to rule on the motion to recuse. Carson, 841 S.W.2d at 493; Greenberg, Benson, Fisk and Fielder, P.C. v. Howell, 685 S.W.2d 694, 695 (Tex.App. — Dallas 1984, no writ). Here, as in Carson, the trial court ruled on another motion without any statement regarding the motion to recuse or good cause to proceed without a hearing on that motion.

The majority states that Mr. Johnson waived his motion to recuse because he filed it too late. Rule 18a(a) requires the party to file a motion at least 10 days before the hearing. The majority says the record shows that Mr. Johnson was notified on January 7, 1992 that the court would hold a hearing on the issue of costs under rule 143 on January 21, 1992. I disagree that the record before us indicates Mr. Johnson received notice of the hearing on January 7, 1992. The record contains a copy of a letter addressed to Mr. Johnson, dated January 7, 1992, stating that a hearing would be held on January 21, 1992. We do not know from this record when Mr. Johnson received the notice.

Based on its assumption that Mr. Johnson filed a late notice to recuse, the majority contends the mandatory provisions of rule 18a, which prohibit a judge from ruling on any other matter once a motion to recuse is filed, did not come into play. Thus, the majority reasons, Judge West was free to rule on other matters, and hearing was not required on the motion to recuse. Again I disagree. Mr. Johnson filed the motion to recuse on January 16, 1992, four days before the hearing. In his petition for mandamus, Mr. Johnson claims he filed the motion to recuse Judge West on that date because only then did he become aware of Judge West's acts of fraud in granting a order of dismissal in cause of action number 89-06337.

In Winfield, this Court held that a trial court may not overrule a motion to recuse on the ground that the motion was untimely. Winfield, 846 S.W.2d 920, 922. As we said in Winfield, sections (d) and (f) of rule 18a of the Texas Rules of Civil Procedure and section 74.059(c)(3) of the Texas Government Code clearly, contemplate that the court hold a hearing on a motion to recuse. The hearing on the motion gives the mov-ant the opportunity to develop a record about the grounds for the motion to recuse. Without a hearing, on appeal we have no record. Winfield, 846 S.W.2d 920, 922. Without a hearing, we do not know why Mr. Johnson filed the motion to recuse on January 16, 1992, instead of earlier.

. The majority states that we do not have many of the documents necessary to evaluate Mr. Johnson’s claims. For example, the majority states that we do not have a written order by Judge Smith refusing to give Johnson a hearing. Considering that Judge Smith did not enter a formal order overruling the motion to recuse Judge West (he merely initialed Johnson motion "denied"); it is not likely he signed a formal order refusing a hearing.