Opinion
WR-26,708-27
06-28-2023
EX PARTE KENT ANTHONY KRUEGER, Applicant
Do not publish
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. CR2004-268-003 IN THE 22ND DISTRICT COURT FROM COMAL COUNTY
ORDER
PER CURIAM.
Applicant was convicted of retaliation and sentenced to forty years' imprisonment. The Applicant did not file a direct appeal. Applicant filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See Tex. Code Crim. Proc. art. 11.07.
The record as forwarded to this Court includes a response from the State filed in a separate court, the 466th Judicial District Court of Comal County. The record also includes an order recommending denial of the writ application, filed and signed by the trial judge in the 466th Judicial District Court of Comal County. There is nothing in the record which supports the jurisdiction of the 466th Judicial District Court to address the issues raised in the writ application.
According to the Comal County District Clerk, it appears that the judge of the 22nd District Court of Comal County informally recused himself at some point prior to the 466th Judicial District Court addressing the issues of the writ application in its order recommending denial on April 17, 2023.
Texas Rule of Civil Procedure 18b authorizes judges to voluntarily recuse themselves in proceedings in which their partiality might reasonably be questioned. See Tex. R. Civ. P. 18a, 18b; Ex parte Sinegar, 324 S.W.3d 578, 581 (Tex. Crim. App. 2010) (holding that Rule 18a "applies in habeas proceedings that occur before the trial court"); Arnold v. State, 853 S.W.2d 543, 544 (Tex. Crim. App. 1993) (stating that Rule 18a "applies to criminal cases absent 'any explicit or implicit legislative intent indicating otherwise'"). Section 24.002 of the Texas Government Code provides the procedure that must be followed when a district judge voluntarily recuses himself: If a district judge determines on the judge's own motion that the judge should not sit in a case pending in the judge's court because the judge is disqualified or otherwise should recuse himself or herself, the judge shall enter a recusal order, request the presiding judge of that administrative judicial region to assign another judge to sit, and take no further action in the case except for good cause stated in the order in which the action is taken. A change of venue is not necessary because of the disqualification of a district judge in a case or proceeding pending in the judge's court. Tex. Gov't Code § 24.002.
Thus, if a district judge decides sua sponte that he "should" recuse himself for some reason, the judge "shall" take the following steps: (1) enter a recusal order; (2) request that the presiding judge appoint another judge to sit in the case at issue; and (3) take no further action and make no further orders in the case unless the "the order in which the action is taken" contains a statement of "good cause." Ex parte Thuesen, 546 S.W.3d 145, 147 (Tex. Crim. App. 2017).
Rule 18a additionally provides that, when a recusal is granted, the presiding judge of the administrative judicial region "must transfer the case to another court or assign another judge to the case." Rule 18a(g)(7). The granting of a recusal is final and is not an appealable order. See Rule 18a(j).
This Court has now received a recusal order from the trial judge in the 22nd District Court. The order is undated but the District Clerk file-marked it on June 8, 2023. There is still no transfer order included in the record. Therefore, this untimely recusal order is not sufficient to establish jurisdiction over this case in the 466th Judicial District Court.
We remand to the 22nd District Court of Comal County to transfer the case as required by statute. The trial court to which this cause is transferred shall make findings of fact and conclusions of law addressing the resolution of this case within ninety days from the date of this order. The district clerk shall then immediately forward to this Court the trial court's findings and conclusions and the record developed on remand, including, among other things, affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from hearings and depositions. See Tex. R. App. P. 73.4(b)(4). Any extensions of time must be requested by the trial court and obtained from this Court.