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In re A.E.

Court of Appeals of Texas, Twelfth District, Tyler

November 8, 2017



          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.



         Relator R.R., acting pro se, filed this petition for writ of mandamus, contending that the trial court erred by failing to take appropriate action after the Relator filed a motion to disqualify and by failing to sign an order after the adversary hearing. Relator also argues that the trial court misapplied or violated various laws and constitutional protections. We deny the petition.[1]


         R.R. and M.E.[2] are the parents of G.R. On January 9, 2017, the Department of Family and Protective Services (the Department) filed an original petition for protection of A. E.[3] and G.R., for conservatorship, and for termination of R.R.'s and M.E.'s parental rights. After the adversary hearing, the trial court appointed the Department as temporary managing conservator of the child. Both parents were appointed possessory conservators and granted supervised visitation. On March 3, 2017, R.R. filed an objection to the phase plan and a motion to dismiss the Department's suit, alleging that his caseworker told him that he was required to attend Co-Dependents Anonymous (CoDa) meetings. He stated that the trial court and the Department were "flagrantly violating state and federal law" by requiring that he attend CoDa because it is a twelve step program based on a religious concept of a "Higher Power." Six days later, R.R. filed an objection to the Department's phase plan requiring him to attend counseling, psychological evaluation, and anger management. There is no record of the trial court's ruling on these objections.

         On March 20, R.R. filed a counterclaim and third party joinder, requesting that Respondent, among others, be joined to the suit and requesting declaratory relief, injunctive relief, and monetary damages. The Department filed a motion to dismiss. On May 2, 2017, two days before the hearing on R.R.'s counterclaim and third party joinder, he filed an objection to the pauper's oath hearing and a motion to disqualify Respondent. R.R.'s counterclaim and motion were set for hearing, but he did not appear. Respondent dismissed R.R.'s counterclaim and third party joinder, and dismissed R.R.'s motion to disqualify for want of prosecution. Later, however, Respondent declined to recuse herself and requested the Presiding Judge of the First Administrative Judicial Region to assign a judge to hear R.R.'s motion to recuse. That presiding judge assigned a judge to hear the motion to recuse and to hear any matters relating to the motion to dismiss third party joinder of Respondent. This original proceeding followed.

         Availability of Mandamus

         Mandamus relief is available when, under the circumstances of the case, the facts and law permit the trial court to make but one decision-and the trial court has refused to make that decision-and remedy by appeal to correct the ruling is inadequate. Proffer v. Yates, 734 S.W.2d 671, 673 (Tex. 1987). Mandamus is allowed under the Texas Family Code under these circumstances. See In re Knotts, 62 S.W.3d 922, 923 n.1 (Tex. App.-Texarkana 2001, orig. proceeding).

         To be entitled to mandamus relief, R.R. must establish a trial court clearly abused its discretion and he lacks an adequate remedy by appeal. In re Green, 385 S.W.3d 665, 668 (Tex. App.-San Antonio 2012, orig. proceeding) (citing In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding)). An abuse of discretion with respect to factual matters occurs if the record establishes the trial court could reasonably have reached only one decision. Id. at 668-69 (citing Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding)).

         Motion to Disqualify

         In his first issue, R.R. argues that after he filed a motion to disqualify the Respondent, the Respondent's only options were to sign an order of recusal or refer the motion to the regional presiding judge. He complains that Respondent failed to do so.

         Applicable Law

         A judge must recuse in any proceeding in which the judge or the judge's spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person is a party to the proceeding or an officer, director, or trustee of a party; is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding; or is to the judge's knowledge likely to be a material witness in the proceeding. See Tex. R. Civ. P. 18b(b)(7). An order denying a motion to recuse may be reviewed only for abuse of discretion on appeal from the final ...

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