Court of Appeals of Texas, Seventh District, Amarillo
Proceeding Arising From Proceedings Before the 140th District
Court Lubbock County, Texas Trial Court No. 2011-432, 529;
Honorable Jim Bob Darnell, Presiding
QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Patrick A. Pirtle Justice
pro se and in forma pauperis, Relator,
Edrick Jamar Dunn, seeks a writ of mandamus to compel the
Honorable Jim Bob Darnell to recuse himself from presiding
over an unidentified post-conviction application for writ of
habeas corpus. Simultaneously with his request for mandamus
relief, Relator has filed an "Emergency Motion to Stay
of Plaintiffs [sic] 11.07 in District Court, Lubbock County,
Texas." For reasons expressed herein, we moot
Relator's emergency motion and deny his petition for writ
Standard of Review
relief is extraordinary. In re Braswell, 310 S.W.3d
165, 166 (Tex. App.-Amarillo 2010, orig. proceeding) (citing
In re Southwestern Bell Telephone Co.,
L.P., 235 S.W.3d 619, 623 (Tex. 2007) (orig.
proceeding)). Mandamus issues only to correct a clear abuse
of discretion or the violation of a duty imposed by law when
there is no other adequate remedy by law. Walker v.
Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig.
proceeding) (quoting Johnson v. Fourth Court of
Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig.
proceeding)). To show entitlement to mandamus relief, a
relator must satisfy three requirements: (1) a legal duty to
perform; (2) a demand for performance; and (3) a refusal to
act. Stoner v. Massey, 586 S.W.2d 843, 846 (Tex.
18a of the Texas Rules of Civil Procedure governs the
procedure for recusal of a trial judge in a case in
any trial court other than a statutory probate court or
justice court. Tex.R.Civ.P. 18a(a). (Emphasis added). Under
Rule 18a(f), regardless of whether a motion to recuse
complies with the rule, the respondent judge has only two
options regarding a pending motion. The judge must either (1)
sign and file with the clerk an order of recusal or (2) sign
and file with the clerk an order referring the motion to the
regional presiding judge. See id. at
(f)(1). See also Greenberg, Benson, Fisk &
Fielder, P.C. v. Howell, 685 S.W.2d 694, 695
(Tex. App.-Dallas 1984, orig. proceeding). The rule does not
authorize denial of a motion to recuse by the
requirements of Rule 18a are mandatory. A trial judge abuses
his discretion as a matter of law when he pursues an option
other than the two available in Rule 18a(f)(1). Lamberti
v. Tschoepe, 776 S.W.2d 651, 652 (Tex. App.-Dallas 1989,
his petition for mandamus relief, Relator included a copy of
his motion to recuse and a copy of the trial court's
order denying that motion. Tex.R.App.P. 52.3(k)(1)(A). Both
the motion to recuse and the order denying that motion bear
the cause number of Relator's original conviction, not a
post-conviction habeas corpus proceeding. Relator correctly
presents the law applicable to recusal motions and the law
applicable for entitlement to mandamus relief; however, he
has not provided a sufficient record to show he is entitled
to issuance of a writ of mandamus in this case. See
Lizcano v. Chatham, 416 S.W.3d 862, 863 (Tex. Crim. App.
2011) (orig. proceeding) (Alcala, J. concurring). See
also Walker, 827 S.W.2d at 837. Specifically, he has not
shown that his motion to recuse was filed in a pending case.
alleges the trial judge is "biased and will not make a
fair and impartial decision in his recommendation on
Relator's 11.07." As previously noted, Rule 18a(a)
applies in a case in any trial court other than a
statutory probate court or justice court. (Emphasis added).
The record before us does not indicate that Relator's
motion was filed in a pending case, to-wit: the
post-conviction application for writ of habeas corpus alluded
to in his motion. A trial judge must have "a case"
pending in his court before a party may move to have that
judge recused. In the absence of a pending case properly
invoking the jurisdiction of the trial court, the court is
without the authority to either (1) sign and file with the
clerk an order of recusal or (2) sign and file with the clerk
an order referring the motion to the regional presiding
judge. Although we are not unsympathetic to the plight of an
inmate's pro se status, it does not exempt him
from complying with all applicable rules of procedure.
See Pena v. McDowell, 201 S.W.3d 665, 667 (Tex.
2006); Mansfield State Bank v. Cohn, 573 S.W.2d 181,
184-85 (Tex. 1978).
Relator has failed to establish a "case" pending
before the trial court, the appropriate disposition would
have been to dismiss Relator's motion to recuse
for want of jurisdiction rather than to deny it.
Although not specifically designated as a dismissal
for want of jurisdiction, we hold the trial court did not