Opinion
NUMBER 13-16-00080-CR
04-20-2017
JOHNNY RAY PARTAIN, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 404th District Court of Cameron County, Texas.
ORDER
Before the Court En Banc
Order Per Curiam
This cause is before this Court on appellant's "Motion to Transfer this Case to the 14th Court of Appeals." In this motion, appellant requests that the Chief Justice of this Court and Chief Justice Kem Thompson Frost of the Fourteenth Court of Appeals to "consider this request and to forward a copy of this motion to the Supreme Court, along with a letter stating your concurrence or non-concurrence with his request to transfer." Appellant's motion broadly asserts that he has been the subject of official oppression, abuse of office, and political retaliation by various trial court judges, the Hidalgo County District Attorney's Office, and the Justices of the Thirteenth Court of Appeals. We construe appellant's motion as containing an implicit request for the recusal of the Justices of the Thirteenth Court of Appeals. As discussed herein, we deny the implicit motion to recuse and, by way of this order, notify the Texas Supreme Court that we have no objection to the proposed transfer.
I. BACKGROUND
In this cause, appellant has appealed a conviction for theft in the amount of $1,500 or more, but less than $20,000. See TEX. PENAL CODE ANN. § 31.03 (West, Westlaw through 2015 R.S.). Appellant has frequently appeared before this Court in various other appeals and original proceedings. See, e.g., In re Partain, No. 13-16-00516-CV, 2016 WL 5846549, at *1 (Tex. App.—Corpus Christi Sept. 3, 2016, orig. proceeding) (per curiam mem. op.); Partain v. Guerra, No. 13-13-00341-CV, 2015 WL 4116727, at *1 (Tex. App.—Corpus Christi July 2, 2015, no pet.) (mem. op.); Partain v. Estate of Maples, No. 13-14-00584-CV, 2015 WL 5092167, at *1 (Tex. App.—Corpus Christi June 25, 2015, pet. dism'd w.o.j.) (mem. op.); Partain v. Maples, 438 S.W.3d 69, 70 (Tex. App.—Corpus Christi 2013, no pet.); Partain v. Maples, No. 13-11-00289-CV, 2012 WL 29258, at *1 (Tex. App.—Corpus Christi Jan. 5, 2012, no pet.) (per curiam mem. op.); In re Maples, No. 13-08-00524-CV, 2008 WL 4515808, at *1 (Tex. App.—Corpus Christi Oct. 8, 2008, orig. proceeding [mand. denied]) (per curiam mem. op.); In re Partain, No. 13-11-00276- CV, 2011 WL 1936057, at *1 (Tex. App.—Corpus Christi May 18, 2011, orig. proceeding) (per curiam mem. op.).
Appellant asserts that the Justices of this Court should not hear or consider appellant's case in this cause because of official oppression and corruption. Appellant's motion to transfer reads in part:
Appellant does not bring this motion lightly, but on the weight of a long solid history of serious abuses of judicial discretion, official oppression in the South Texas judiciary and Hidalgo District Attorney's Office, and a warning of political retaliation from public officials through the Hidalgo County Sheriff's Office which are intertwined with this instant criminal process. Consider the following.
. . . .
It is difficult to precisely or richly communicate years of successful yet antagonistic process in this relatively short motion, but it should be blatantly clear on the aforementioned considerations that the Appellant has been the target of unconstitutional acts and official oppressions which have reached and sullied the 13th Court of Appeals through politics with the Hidalgo County District Attorney's Office since about 2012. Appellant has a right to a fair and unbiased judiciary and no citizen should ever be exposed to what the Appellant has suffered in South Texas ("third world corruption" quoting Governor Greg Abbott, former Attorney General of Texas, describing South Texas). Appellant looks forward to oral arguments.
Appellant contends that this Court has "[m]anufactured facts" and made "misrepresentations of law" with regard to his previous appeals. He asserts that "[s]o many outrageous errors of fact and law prove official oppression, not accident or incompetence." Appellant thus requests that the Texas Supreme Court transfer this case to the Fourteenth Court of Appeals.
II. RECUSAL
The Court, having examined and fully considered appellant's motion, is of the opinion that it in substance seeks the recusal of the Justices of this Court. See State Bar of Tex. v. Heard, 603 S.W.2d 829, 833 (Tex. 1980) ("We look to the substance of a plea for relief to determine the nature of the pleading, not merely at the form of title given to it."). We treat it accordingly. "The manner in which our judicial system handles the recusal of judges affects public confidence in the judiciary, as it goes to the 'very heart of the promise of impartiality.'" Ex parte Thuesen, No. WR-81,584-01, 2017 WL 510563, at *4, ___ S.W.3d ___, ___ (Tex. Crim. App. Feb. 8, 2017) (per curiam) (quoting Johnson v. Pumjani, 56 S.W.3d 670, 672 (Tex. App.-Houston [14th Dist.] 2001, no pet.)).
"All judges have the duty to sit and decide matters brought before them, unless there is a basis for disqualification or recusal." Rogers v. Bradley, 909 S.W.2d 872, 879 (Tex. 1995) (Enoch, J., concurring); see Ex parte Ellis, 275 S.W.3d 109, 115 (Tex. App.—Austin 2008, no pet.); In re K.E.M., 89 S.W.3d 814, 819 (Tex. App.—Corpus Christi 2002, no pet.); see also TEX. CODE JUD. CONDUCT, Canon 2(A), reprinted in TEX. GOV'T. CODE ANN., tit. 2, subtit. G, app. B (West, Westlaw through 2015 R.S.) ("A judge shall hear and decide matters assigned to the judge except those in which disqualification is required or recusal is appropriate."). In fact, judges have "as much of an obligation not to step down from a case when there is no reason to do so as they have to do so when there is a reason." In re K.E.M., 89 S.W.3d at 819; see Rogers, 909 S.W.2d at 879 (Enoch, J., concurring); Ex parte Ellis, 275 S.W.3d 109, 115 (Tex. App.—Austin 2008, no pet.). This is true even in circumstances in which the judges might prefer not to decide the matters. See Sears v. Olivarez, 28 S.W.3d 611, 614 (Tex. App.—Corpus Christi 2000, no pet.).
The rules governing recusal are found in the rules of appellate procedure and in the rules of civil procedure. See TEX. R. APP. P. 16.1-.3 (governing the recusal of appellate judges); TEX. R. CIV. P. 18a-18b (governing the recusal and disqualification of judges); see also TEX. R. APP. P. 16.2 (providing that "[t]he grounds for recusal of an appellate court justice or judge are the same as those provided in the" rules of civil procedure). Rule 18b(b) of the Texas Rules of Civil Procedure identifies the grounds for recusal. See TEX. R. CIV. P. 18b(b); McCullough v. Kitzman, 50 S.W.3d 87, 88 (Tex. App.—Waco 2001, pet. denied) (order). For purposes of this case, Rule 18b(b) provides that a judge shall recuse himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned or where the judge has a personal bias or prejudice concerning the subject matter or a party. See TEX. R. CIV. P. 18b(b)(1),(2). In determining whether a judge's impartiality might be reasonably questioned so as to require recusal, the proper inquiry is whether a reasonable member of the public at large, knowing all the facts in the public domain concerning the judge and the case, would have a reasonable doubt that the judge is actually impartial. In re E.R.C., 496 S.W.3d 270, 279-80 (Tex. App.—Texarkana 2016), cert. denied sub nom. Stokes v. Corsbie, 137 S. Ct. 834, 85 USLW 3350, 85 USLW 3352 (2017); Fuelberg v. State, 410 S.W.3d 498, 509 (Tex. App.—Austin 2013, no pet.); see Rogers, 909 S.W.2d at 879 (Enoch, J., concurring).
Rule 16.3 of the Texas Rules of Appellate Procedure prescribes the procedure to be followed for recusal of an appellate justice or judge before whom the case is pending. See generally TEX. R. APP. P. 16.3; see also Cannon v. City of Hurst, 180 S.W.3d 600, 601 (Tex. App.—Fort Worth 2005, no pet.); F.S. New Products, Inc. v. Strong Indus., Inc., 129 S.W.3d 594, 601 (Tex. App.—Houston [1st Dist.] 2003, no pet.); Williams v. Viswanathan, 65 S.W.3d 685, 687 (Tex. App.—Amarillo, 2001 no pet.); McCullough v. Kitzman, 50 S.W.3d 87, 88-89 (Tex. App.—Waco 2001, pet. denied) (per curiam). Pursuant to the procedure outlined in Rule 16.3(b), upon the filing of appellant's motion to transfer this case, and prior to any further proceedings in this appeal, each of the challenged justices of this Court considered appellant's motion. See TEX. R. APP. P. 16.3(b). Chief Justice Rogelio Valdez and Justices Nelda V. Rodriguez, Dori Contreras, Gina M. Benavides, Nora L. Longoria, and Leticia Hinojosa each found no reason to recuse themselves and certified the matter to the remaining members of the Court. See id.; McCullough, 50 S.W.3d at 88. The six justices deliberated and decided the motion to recuse with respect to each challenged justice by a vote of the remaining justices en banc, and no challenged justice sat with the other members of the Court when his or her challenge was considered. See TEX. R. APP. P. 16.3(b). Each recusal was considered on a case-by-case fact-intensive basis. See Cannon, 180 S.W.3d at 601; McCullough, 50 S.W.3d at 89; Williams, 65 S.W.3d at 688. As to each of the challenged justices who certified the issue of recusal to the entire court, a majority of the remaining justices found no reason to recuse the justice under consideration. Accordingly, to the extent that appellant's motion to transfer seeks the recusal of the Chief Justice and Justices of this Court, appellant's motion is denied.
III. TRANSFER
By filing the motion to transfer this appeal, appellant has followed the proper procedure for presenting a motion to transfer between appellate courts. The Texas Supreme Court has delineated that procedure as follows:
The party requesting a transfer should file a copy of the motion to transfer in each of the two courts of appeals, asking that, when the motion is forwarded to the Supreme Court, each court of appeals advise the Supreme Court in writing whether it has any objection to the proposed transfer. Any briefs in favor of the proposed transfer should also be filed in each court of appeals and forwarded with the transfer motion. [The Texas Supreme Court] will then have the motion, the briefs, and the comments of the two courts of appeals in determining whether to grant the motion to transfer.Miles v. Ford Motor Co., 914 S.W.2d 135, 137 n. 2 (Tex. 1995); see TEX. GOV'T CODE ANN. § 73.001 (West, Westlaw through 2015 R.S.) ("The supreme court may order cases transferred from one court of appeals to another at any time that, in the opinion of the supreme court, there is good cause for the transfer."). This Court has no objection to the proposed transfer. Accordingly, this matter is referred to the Texas Supreme Court for further handling as that Court deems appropriate.
It is so ORDERED.
PER CURIAM Delivered and filed the 20th day of April, 2017.