Court of Appeals of Texas, Fourth District, San Antonio
IN RE STATE OF TEXAS, ex. rel. Todd A. Durden, County Attorney
Original Mandamus Proceeding 
Sitting: Rebeca C. Martinez, Justice Patricia O. Alvarez,
Justice Liza A. Rodriguez, Justice
A. Rodriguez, Justice
underlying criminal cases, Todd A. Durden, County Attorney
for Kinney County, Texas, filed a "Verified Motion
Requesting Voluntary Recusal [of Judge James Tullis Shahan,
II, ] And Alternative Motions to Disqualify or Recuse"
Judge Shahan. After Judge Shahan refused to voluntarily
recuse himself, the motion to disqualify/recuse was assigned
to Judge Spencer W. Brown. After Judge Brown denied the
motion to recuse/disqualify, the State of Texas, acting by
and through the County Attorney for Kinney County, Texas
(hereinafter, "Durden"), filed a petition for writ
of mandamus. Durden asserts Judge Brown abused his discretion
by denying the motion to disqualify/recuse Judge Shahan and
by dismissing the underlying criminal cases. Because we
conclude Judge Brown erred by not conducting an evidentiary
hearing on Durden's motion to disqualify/recuse, we
conditionally grant the petition in part.
background to this dispute is based on a so-called
"pay-to-plea" policy that allegedly required a
criminal defendant to fully pay all court costs and fines
before the defendant is allowed to enter a plea and begin
serving community supervision. Durden contends this policy is
maintained by Judge Shahan, Judge Shahan benefits from the
policy, and the policy "requires involvement by [Judge
Shahan] in the prosecution of cases in his Court."
Durden alleges Judge Shahan considers himself and Durden to
be "prosecutorial allies in the handling of the Criminal
Cases in Kinney County, Texas." Durden contends that
because he opposed the policy, Judge Shahan caused
Durden's salary to be reduced by twenty percent in the
county's 2017-2018 budget and fifteen percent in the
county's 2018-2019 budget.
on the above contentions, Durden filed his motion to
disqualify/recuse. Judge Brown conducted a hearing on the
motion, after which he denied Durden's motion on
"res judicata" grounds. Durden filed his petition
for writ of mandamus asserting his motion should have been
granted and the trial court improperly dismissed several
criminal cases as sanctions. Both parties asked this court to
take judicial notice of certain documents.
is an extraordinary remedy that will issue only to correct a
clear abuse of discretion when there is no other adequate
remedy at law. In re Sw. Bell Tel. Co., L.P., 235
S.W.3d 619, 623 (Tex. 2007) (orig. proceeding). "A trial
court has no 'discretion' in determining what the law
is or applying the law to the facts. Thus, a clear failure by
the trial court to analyze or apply the law correctly will
constitute an abuse of discretion, and may result in
appellate reversal by extraordinary writ." Walker v.
Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig.
order denying a motion to recuse may be reviewed only for
abuse of discretion on appeal from the final judgment."
Tex.R.Civ.P. 18a(j)(1)(A). However, mandamus review of an
order denying a motion to recuse is available if the grounds
for recusal are established as a matter of law. See De
Leon v. Aguilar, 127 S.W.3d 1, 6-7 (Tex. Crim. App.
2004) (orig. proceeding) (holding general rule that party has
adequate remedy by appeal from recusal order does not apply
when respondent's bias is established as a matter of
law). "An order granting or denying a motion to
disqualify may be reviewed by mandamus and may be appealed in
accordance with other law." Tex.R.Civ.P. 18a(j)(2).
Texas Rules of Civil Procedure provide the procedures for the
recusal or disqualification of a judge. See Tex. R.
Civ. P. 18a, 18b. These procedures apply in criminal cases.
De Leon, 127 S.W.3d at 5. Under Rule 18a, the motion
to recuse or disqualify "must be heard as soon as
practicable . . . ." Tex.R.Civ.P. 18a(g)(6)(A).
"The judge whose recusal or disqualification is sought
should not file a response to the motion." Tex.R.Civ.P.
18a(c)(2). "The language of Rule 18a is mandatory . . .
." Sanchez v. State, 926 S.W.2d 391, 394 (Tex.
App.-El Paso 1996, pet. ref'd).
Judge Shahan did not file a written response to Durden's
motion, but at the beginning of the hearing-before Durden had
the opportunity to put on his case-Judge Shahan stated he
wanted to "address the Court on some pretrial
motions." Judge Shahan argued the issue of his
disqualification/recusal had already been decided; therefore,
the doctrine of res judicata required dismissal of
Durden's present motion. Durden argued that the facts
underlying the past recusal motion, which had been denied,
were different from the facts underlying his present motion.
When Durden asked to present evidence in support of his
motion, Judge Brown refused and stated he was granting Judge
Shahan's oral res judicata motion. Durden objected to not
having the opportunity to present evidence or have a hearing
on his motion.
believe Judge Brown erred by not allowing Durden to put on
evidence in support of his motion to disqualify/recuse.
See In re Lopez, 286 S.W.3d 408, 412 (Tex.
App.-Corpus Christi 2008, orig. proceeding) (holding
respondent abused his discretion in disqualifying attorney
without notice and an evidentiary hearing); Sanchez,
926 S.W.2d at 396 (trial court erred in refusing to hold
evidentiary hearing on allegations urged in motion to recuse
trial judge; appellate court "not persuaded that these
motions may be summarily decided as a matter of law without
the taking of evidence."). Judge Brown also erred by
allowing Judge Shahan to present and argue an "oral
motion" in response ...