in Re State of Texas, Ex. Rel. Todd A. Durden, County Attorney ( 2019 )

Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-19-00215-CR
IN RE STATE OF TEXAS, ex. rel. Todd A. Durden, County Attorney
Original Mandamus Proceeding 1
Opinion by: Liza A. Rodriguez, Justice
Sitting: Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice
Liza A. Rodriguez, Justice
Delivered and Filed: August 7, 2019
PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED IN PART AND
DENIED IN PART
In the 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.
1
This proceeding arises out of The State of Texas v. Mark Anthony Gonzalez; Cause No. 10041CR, and twenty-one
other cases, pending in the County Court, Kinney County, Texas. The Honorable Spencer W. Brown signed the order
at issue in this original proceeding.
04-19-00215-CR
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
The 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.
Based 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. 2 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.
STANDARD OF REVIEW
Mandamus 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
2
Judge Brown’s order states Judge Shahan’s “verbal Jeopardy Motion is Granted.” A review of the reporter’s record
reveals Judge Shahan argued Durden’s motion should be denied based on “res judicata” grounds and not “double
jeopardy.”
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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. proceeding).
“An 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).
DISQUALIFICATION/RECUSAL
The 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).
Here, 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
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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.
We 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 to Durden’s motion. See TEX. R. CIV. P. 18a(c)(2) (“The judge whose recusal
or disqualification is sought should not file a response to the motion.”).
In his prayer for relief, Durden asks this court to consider evidence attached only to his
petition for writ of mandamus, order Judge Brown to vacate his order denying his motion to
disqualify/recuse, and enter an order granting the motion. However, because Judge Brown refused
to hear any evidence, we may not consider evidence outside the trial court record. See In re Taylor,
113 S.W.3d 385, 392 (Tex. App.—Houston [1st Dist.] 2003, orig. proceeding) (“We will not
consider exhibits that were not part of the trial court record at the time of the hearing on the motion
that is the subject of this original proceeding.”). “In an original proceeding on petition for writ of
mandamus, we must focus on the record that was before the trial court.” Id. Therefore, we cannot
determine the merits of Durden’s motion to disqualify/recuse.
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04-19-00215-CR
DISMISSAL OF CRIMINAL CASES
Durden also asserts the trial court lacked jurisdiction to dismiss the criminal cases as a
sanction. Durden relies on the language in the order denying his motion wherein Judge Brown
stated, “the verbal Jeopardy Motion is GRANTED.” On July 17, 2019, this court issued opinions
in several criminal appeals filed by Durden that raised the same complaints raised in this original
proceeding. See, e.g. State v. Mark Anthony Gonzalez, 04-18-00764-CR, 2019 WL 3208822, at
*1 (Tex. App.—San Antonio July 17, 2019, no pet. h.) (mem. op., not designated for publication).
In addressing whether Judge Brown intended to dismiss the underlying criminal case, each opinion
stated: “On June 26, 2019, Judge Brown signed a clarification order stating his prior order denied
the motion to recuse Judge Tully Shahan but the underlying cause is still pending.” Id. at *2.
Based on Judge Brown’s clarification order, there is no basis to support Durden’s assertion that
the trial court dismissed any underlying criminal case.
CONCLUSION
Judge Brown did not afford Durden an evidentiary hearing on his motion to
disqualify/recuse; therefore, we conditionally grant the petition in part and direct Judge Brown to
vacate his “Order on Motion to Recuse and Jeopardy Motion for Dismissal.” The writ will issue
only in the event we are notified that Judge Brown fails to comply within fifteen days from the
date of this opinion. Because this court cannot consider any evidence not before the trial court,
we deny Durden’s request to direct Judge Brown to enter an order granting his motion to
disqualify/recuse. Finally, because Judge Brown did not dismiss any underlying criminal case, we
deny Durden any relief based on his contention that criminal cases were dismissed. We deny all
requests to take judicial notice and all other requests for further relief by any party.
Liza A. Rodriguez, Justice
Publish
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