Opinion
No. 05-04-00851-CV
Opinion issued June 30, 2004.
Original Proceeding from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 03-1282-GR.
Writ of Mandamus Denied.
Before Justices MORRIS, FITZGERALD, and LANG-MIERS.
MEMORANDUM OPINION
On June 16, 2004, Relator filed in the trial court below his "Defendant's Amended Tertiary Motion to Recuse Judge Mark Nancarrow." On June 18, 2004, Relator filed in the trial court his "Defendant's Motion to Sanction Patrick Batchelor." On June 24, 2004, Relator filed in this Court his petition for writ of mandamus requesting that we "stay post trial timetable, issue an order of recusal to Mark Nancarrow, or order him to refer the Motion to Recuse to [the regional presiding judge], and Order [the regional presiding judge] to hear the Motion for Sanctions against Patrick Batachelor. . . ." We decline Relator's request.
After scrutinizing Relator's petition, we conclude Relator has not shown himself entitled to any of the relief he seeks. We note that Relator's attempt to submit sworn facts in his petition fails because the "Verification of Facts" he signed is equivocal about his personal knowledge. It recites, in part, "that every statement of fact herein is within [Relator's] personal knowledge and is true and correct, or based on information and belief, unless clearly identified as hearsay." This attempted verification of facts is insufficient to put before us any sworn fact that might support Relator's claim for relief.
Additionally, we note that the copy of "Defendant's Amended Tertiary Motion to Recuse Judge Mark Nancarrow" is accompanied by a "Verification" that suffers from the same equivocation. It reads, in part, that Relator "has read the above and foregoing pleading and that the allegations contained therein are within his personal knowledge and/or based on information or belief as stated in the Motion, and are true and correct, unless clearly identified as hearsay." The motion itself does not "state" any alleged fact in it is based on "information or belief" or identifies any statement of fact as hearsay. Texas Rule of Civil Procedure 18a(a) mandates that a motion to recuse "shall be verified" and "made on personal knowledge." Tex. R. Civ. P. 18a(a); see Arnold v. State, 853 S.W.2d 543, 544 (Tex.Crim. App. 1993) (rule 18a applies to criminal proceedings). Because the amended motion does not comply with rule 18a(a), the trial court could not have abused its discretion by not referring the motion for determination to the regional presiding judge. Accordingly, we deny relator's petition for writ of mandamus.