Opinion
No. 11-06-00067-CR
Opinion filed May 4, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 204th District Court Dallas County, Texas, Trial Court Cause No. 03-01282-GR.
Panel consists of: WRIGHT, C.J., and McCALL, J., and STRANGE, J.
OPINION
This appeal arises from charges filed against Robert R. Wightman-Cervantes in the 204th District Court of Dallas County for the felony offense of falsely holding oneself out as a lawyer. See TEX. PEN. CODE ANN. § 38.122 (Vernon 2003). The State subsequently reduced the charge to the misdemeanor offense of unauthorized practice of law pursuant to the terms of a plea agreement. See TEX. PEN. CODE ANN. § 38.123 (Vernon 2003). Upon appellant's plea of " nolo contendere," the trial court sentenced him to the agreed sentence of confinement for fourteen days in the county jail. Appellant raises two issues on appeal concerning the trial court's rulings on matters raised by written motion filed and ruled on before trial. See TEX. R. APP. P. 25.2(a)(2)(A). We affirm. Procedural History Appellant's complaints on appeal deal with the issue of recusal. On December 3, 2003, appellant filed his initial motion seeking the recusal of the Honorable Judge Mark Nancarrow, presiding judge of the 204th District Court. It appears that the Honorable Judge John Ovard, the presiding judge for the First Administrative Judicial Region, initially assigned the Honorable Judge Pat McDowell to consider this motion to recuse Judge Nancarrow. Appellant then filed a motion on December 8, 2003, seeking the disqualification of Judge McDowell from considering the motion to recuse Judge Nancarrow. Judge Ovard subsequently assigned himself to hear the motions to recuse Judge Nancarrow and Judge McDowell. Judge Ovard expressly noted that he assigned himself to consider the recusal motions in his capacity as the presiding judge of the First Administrative Judicial Region. Appellant filed a motion to recuse Judge Ovard on December 22, 2003, which Judge Ovard summarily denied. Judge Ovard also denied the motion to recuse Judge Nancarrow after conducting a hearing on the matter. Judge Ovard declined to rule on the motion to recuse Judge McDowell based upon his determination that the motion was moot. Issues on Appeal Appellant asserts in his first issue that Judge Ovard lacked authority to rule on the motion to recuse himself. He contends that another judge should have been assigned to consider the motion to recuse Judge Ovard. Appellant's second issue is related to his first issue. He contends that, since Judge Ovard "was subject to disqualification, any orders he entered concerning Judge Nancarrow's recusal are improper. Therefore, [appellant's] motion to recuse Judge Nancarrow has never been properly heard." Analysis The procedures set out in TEX. R. CIV. P. 18a for the recusal of judges apply in criminal cases. De Leon v. Aguilar, 127 S.W.3d 1, 5 (Tex.Crim.App. 2004); Arnold v. State, 853 S.W.2d 543, 544 (Tex.Crim.App. 1993). Rule 18a(c) provides that, whenever a motion to recuse is filed, the judge must either recuse himself or request the presiding judge of the administrative judicial region to assign a judge to hear such motion. See also TEX. GOV=T CODE ANN. § 74.059(c)(3) (Vernon 2005). The critical issue in this appeal is whether Judge Ovard was required to comply with the requirements of Rule 18a(c) in dealing with the motion to disqualify himself. We conclude that he was not required to comply with Rule 18a(c)'s requirements. The State argues that Rule 18a(c) is inapplicable to the motion to recuse Judge Ovard by virtue of his status as the presiding judge of the administrative judicial region. While this question concerning the construction of the rule is intriguing, we do not need to address it in order to resolve appellant's contentions. The Court of Criminal Appeals held in De Leon that a judge who is the subject of a motion to recuse does not have an absolute duty to comply with the requirements of Rule 18a(c) if the motion to recuse is not timely filed. 127 S.W.3d at 5. Rule 18a(a) provides that a motion to recuse must be filed at least ten days before the date set for trial or other hearing. Appellant expressly acknowledged in his motion to recuse Judge Ovard that he filed the motion less than ten days prior to the hearing on the motions to recuse Judge Nancarrow and Judge McDowell. Accordingly, Judge Ovard was permitted to make an initial determination as to whether the recusal motion conformed with the requirements for recusal motions. See Id. at 5; Arnold, 853 S.W.2d at 544-45. Appellant sought Judge Ovard's recusal based upon the allegation that Judge Ovard had an ex parte communication with the Honorable Judge Mark Tolle regarding Judge Tolle's anticipated testimony on the motion to recuse Judge McDowell. Appellant alleged as follows in his motion to recuse Judge Ovard:
On December 18, 2003, witness Mark Tolle who has personal knowledge of Pat McDowell's backdoor deals to manipulate judicial results called [appellant] and informed [appellant] that he was going to ask Judge Ovard, who will be presiding over the Motion to Recuse Judge McDowell, to grant his motion to Quash his subpoena.He also alleged: "On the morning of December [appellant] Mark Tolle will not appear for the hearing because he has been assured the Motion to Quash will be granted. Witness Tolle's ex parte hearing with Judge Ovard has tainted the process and denied [appellant] the testimony of a key witness." Appellant further asserted: "Judge Ovard's ex parte was a violation of the rules of Judicial Conduct and should now form the basis of his recusal in this matter." Thus, the only ground which appellant asserted with respect to the recusal of Judge Ovard dealt with his consideration of the motion to recuse Judge McDowell. The recusal of Judge McDowell became a moot point, however, because Judge Ovard heard the motion to recuse Judge Nancarrow after appellant filed the motion to recuse Judge McDowell. We conclude that Judge Ovard did not err in summarily denying the motion to recuse himself because the only ground asserted for recusal dealt with his impartiality to consider a moot motion which neither he nor any other judge ever decided. Moveover, Rule 18a(a) requires that a motion to recuse "shall be verified" and "shall be made on personal knowledge and shall set forth such facts as would be admissible in evidence provided that facts may be stated upon information and belief if the grounds of such belief are specifically stated." Appellant attached a "verification" to his motion to recuse Judge Ovard which stated in relevant part as follows: "[T]he allegations contained therein are within [appellant's] personal knowledge and/or based on information or belief as stated in the Motion, and are true and correct, unless clearly identified as hearsay." However, the motion itself does not "state" that any alleged fact in it is based on "information or belief." The motion also does not identify any statement of fact as hearsay. As a result of these omissions and the equivocal nature of the verification, appellant's motion to recuse Judge Ovard does not satisfy the requirements of Rule 18a(a). We note that the Dallas Court of Appeals reached the same result in reviewing a similarly worded motion and verification filed by appellant. See In re Wightman-Cervantes, No. 05-04-00851-CV, 2004 WL 1463107 (Tex.App.-Dallas June 30, 2004, orig. proceeding) (mem. op.). In summary, Judge Ovard did not err in denying the motion to recuse himself because the motion only dealt with his authority to consider a moot matter and did not comply with the requirements of Rule 18a(a). Appellant's first issue is overruled. Our ruling on appellant's first issue is dispositive of his second issue. Judge Ovard's denial of the motion to recuse himself did not affect his authority to decide the initial motion to recuse Judge Nancarrow. Accordingly, appellant's second issue is overruled. This Court's Ruling The judgment of the trial court is affirmed.
On January 24, 2006, the Texas Supreme Court transferred this case from the Court of Appeals for the Fifth District of Texas to this court in an order entered as Misc. Docket No. 06-9023.
Appellant subsequently filed several additional motions seeking Judge Nancarrow's recusal.
Judge McDowell was assigned for the limited purpose of hearing the motion to recuse Judge Nancarrow. The motion to recuse Judge McDowell became moot when Judge Ovard heard the motion to recuse Judge Nancarrow.
If one assumes that Rule 18a(c) is applicable to the motion to recuse Judge Ovard, the express terms of the rule would require him as the presiding judge of the administrative judicial region to assign a fellow judge to hear the motion to recuse even though he is the subject of the recusal motion.