Opinion
No. 04-03-00552-CV
Delivered and Filed: May 26, 2004.
Appeal from the 38th Judicial District Court, Medina County, Texas, Trial Court No. 03-03-16398-CV, Honorable Charles Sherrill, Judge Presiding.
Affirmed.
Sitting: Catherine STONE, Justice, Paul W. GREEN, Justice, Sarah B. DUNCAN, Justice.
MEMORANDUM OPINION
Terry Pitts ("Pitts") appeals the trial court's order dismissing his suit pursuant to Chapter 14 of the Texas Civil Practice and Remedies Code. We affirm the trial court's order.
Pitts's sole issue on appeal is that the trial court abused its discretion in ordering the dismissal before a ruling was made on Pitts's motion to recuse. To recuse a judge, a party must follow the procedure prescribed by Rule 18a of the Texas Rules of Civil Procedure. Tex. R. Civ. P. 18a; Carson v. Serrano, 96 S.W.3d 697, 698 (Tex. App.-Texarkana 2003, pet. denied). On the day the motion to recuse is filed, Rule 18a requires copies to be served on all other parties or their counsel of record, together with notice that the movant expects the motion to be presented to the judge three days after the filing of such motion unless otherwise ordered by the judge. Tex. R. Civ. P. 18a(b); see also Carson, 96 S.W.3d at 698. Although Pitts filed a motion to recuse, "there is no evidence [Pitts] gave notice of expectancy of presentment to the judge three days after filing, and there is no evidence the judge was presented with the motion three days after filing." Carson, 96 S.W.3d at 698. Therefore, Pitts may not complain about the judge's failure to recuse himself because Pitts did not follow the procedures prescribed by Rule 18a. See id.; see also Hall v. Treon, 39 S.W.3d 722, 723 (Tex. App.-Beaumont 2001, no pet.) (holding inmate waived complaint regarding judge's failure to recuse himself by failing to follow procedures for securing recusal); Johnson v. Smith, No. 14-97-01412-CV, 2000 WL 987859, *1 (Tex. App.-Houston [14th Dist.] May 18, 2000, no pet.) (noting same defect) (not designated for publication); Wirtz v. Massachusetts Mut. Life Ins. Co., 898 S.W.2d 414, 423 (Tex. App.-Amarillo 1995, no writ) (noting same defect); Hawkins v. Estate of Volkmann, 898 S.W.2d 334, 343 (Tex. App.-San Antonio 1994, writ denied) (complaint waived where motion, among other defects, failed to contain notice that movant expected to present the motion to the court three days after its filing). Because Pitts waived the sole complaint he raises on appeal, the trial court's order is affirmed.