Opinion
No. 05-10-00452-CV
Opinion Filed June 4, 2010.
Original Proceeding from the County Court at Law No. 2 Grayson County, Texas, Trial Court Cause No. 2004-2-25P.
Before Justices BRIDGES, LANG and MYERS.
MEMORANDUM OPINION
Relator Pamela Kiefer, administratrix of the estate of Fred Kiefer, deceased, brought this mandamus proceeding, contending that the trial court abused its discretion by transferring the case to another County Court at Law when a motion to recuse was pending before the trial court. We conclude the trial court abused its discretion and conditionally grant the petition for writ of mandamus.
I. FACTUAL AND PROCEDURAL BACKGROUND
On March 9, 2010, Pamela Kiefer, both Individually and as the Administratrix of the Estate of Fred Kiefer, Deceased, filed a Motion to Recuse in the County Court at Law No. 2. On March 17, 2010 the trial judge signed an "Order Transferring Case" which transferred the case and and all further proceedings to County Court at Law No. 1 in Grayson County. Keifer seeks relief from the March 17, 2010 order transferring the case.
II. STANDARD FOR MANDAMUS
Mandamus relief is available when the trial court abuses its discretion and there is no adequate remedy at law, such as by appeal. In re Prudential Ins. Co., 148 S.W.3d 124, 135-36 (Tex. 2004); In re Dana Corp., 138 S.W.3d 298, 301 (Tex. 2004) (orig. proceeding) (per curiam) (citing Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding)). When reviewing a motion for recusal, the denial of a motion to recuse is appealable upon final judgment. Tex. R. Civ. P. 18a(f). Consequently, a party challenging the denial of a motion to recuse has an adequate remedy at law. However, if a party contends the trial court violated "a mandatory duty to either recuse or refer a motion to recuse" there is no adequate remedy at law, and mandamus relief may be available. See In re Norman, 191 S.W.3d 858, 860 (Tex. App.-Houston [14th Dist.] 2006, original proceeding). See also In re Rio Grande Valley Gas Co., 987 S.W.2d 167, 179 (Tex. App.-Corpus Christi 1999, orig. proceeding).
III. MOTION TO RECUSE
Kiefer argues in her petition for writ of mandamus the trial court violated Rule 18a of the Texas Rules of Civil Procedure by transferring the case to another court when a motion to recuse was pending. Kiefer requests this court to vacate Respondent's March 17, 2010 "Order Transferring the Case." In response, real party in interest argues that by signing the "Order Transferring Case," the issue became moot because the trial judge "essentially recused herself and provided the executrix the relief she requested."
A. Applicable Law
Rule 18a of the Texas Rules of Civil Procedure allows a party to file a motion to recuse at least ten days before the date set for trial. Tex. R. Civ. P. 18a (b). If a party files a motion to recuse, "prior to any further proceeding in the case, the judge shall either recuse himself or request the presiding judge of the administrative judicial district to hear such motion." Id. at 18a (c). If the judge recuses himself, "he shall enter an order of recusal and request the presiding justice of the administrative judicial district to assign another judge to sit, and shall make no further orders and shall take no further action in the case except for good cause stated in the order in which such action is taken." Id. If the judge declines to recuse himself, the judge shall not make any further orders or take any further action and must forward to the presiding judge "the order of referral, the motion and all opposing and concurring statements." Id. at 18(d). The failure of the trial judge either to recuse herself or refer the motion to the presiding judge is a violation of the trial judge's mandatory statutory duty. See In re Norman, 191 S.W.3d at 860.
B. Application of Law to Facts
Relator filed a motion to recuse in the County Court at Law No. 2. When presented with the motion to recuse, the trial judge had the option of either recusing herself or referring the motion to the presiding judge of the administrative judicial district. See Tex. R. Civ. P. 18a; In Re Rio Grande Valley, 987 S.W.2d at 178 (citing Brossau v. Ranzau, 911 S.W.2d 890, 892 (Tex. App.-Beaumont 1995, no writ). However, the trial judge did neither. We reject real party in interest's contention that the order transferring the case renders moot any pending 18a challenges. See In re Rio Grande Valley, 987 S.W.2d at 178 ("We reject Real Parties' argument that transfer `moots' any pending 18a challenges. . . . To allow transfer of a case in circumstances where a rule 18a motion pending would nullify the mandatory provisions of the rule."). The challenged judge must recuse herself or refer the motion. In re Norman, 191 S.W.3d at 861. Thus, the trial judge abused her discretion by signing the order transferring the case to County Court at Law No. 1. Consequently, that order is void. Id. at 860.
IV. CONCLUSION
The trial court abused its discretion when it signed the March 17, 2010 "Order Transferring Case." Relators' petition for a writ of mandamus is conditionally GRANTED.
The Court ORDERS the Honorable Carol Siebman, Judge of the County Court at law No. 2, to vacate the "Order Transferring Case" for Cause Number 2004-2-25P and to issue an order pursuant to Rule 18a of the Texas Rules of Civil Procedure that either agrees to recusal or denies recusal and refers the motion to presiding judge of the administrative judicial district to hear the motion. The writ will only issue if the trial court fails to comply.