General Motors Corp. v. Evins 830 S.W.2d 355

OPINION

DORSEY, Justice.

In this original proceeding, relator, General Motors (GM) complains that the Honorable Joe B. Evins has abused his discretion in either failing to recuse himself from further proceedings in the underlying suit or to refer GM’s motion to recuse to the presiding judge of the administrative district in accordance with Tex.R.Civ.P. 18a. We believe that the mandamus action is premature because relator has presented us with a record which shows neither a clear abuse of discretion nor the failure to perform a ministerial act. We deny the writ of mandamus with instructions.

The plaintiffs in the underlying lawsuit sued GM for injuries allegedly suffered when a GM automobile, which they claim was in “park,” moved rearward because the transmission shifted into reverse unassisted. Prior to trial, GM filed a motion to recuse Judge Evins.1 The recusal motion alleged that Judge Evins’ impartiality was in serious question because the plaintiff’s attorney, Ramon Garcia, and the trial judge had an ongoing attorney-client relationship. GM also asserted that the trial judge and Garcia had formerly been associated in the practice of law.

Judge Evins neither recused himself nor referred the case to the presiding judge of the administrative district. The case was tried on the merits, resulting in a jury verdict in GM’s favor. No motion for judg*357ment or judgment have been presented to the court in the case to date.2

After the verdict was announced by the jury, GM again sought to recuse Judge Evins from hearing any post-verdict motions in the case. This motion was filed on March 4, 1992. The second recusal motion reiterated as grounds the existence of the attorney-client relationship and the former association of Garcia and the judge. The motion stated as an additional ground an allegation that Judge Evins had not filed or made public the jury verdict even though two months had elapsed since the verdict. GM alleged also that Judge Evins had refused to permit GM’s counsel to view the verdict. GM also raised additional claims which it alleges are proof that Judge Evins was not impartial in the handling of the ease, including: insinuations by the judge that GM’s counsel had acted dishonorably, partiality in evidentiary rulings and overall partiality in his post-trial dealings with GM.

After the recusal motion was filed, the plaintiffs filed a motion for mistrial. On April 17, 1992, GM notified the trial court that it had not received word on what action the trial court intended to take on the recusal motion. Judge Mancias signed an order setting both the motion to recuse and the motion for mistrial for April 30, 1992, in the 206th District Court.3 This hearing never took place because, in the interim, we granted GM’s motion for leave to file petition of writ of mandamus and request for a temporary stay.

Tex.R.Civ.P. 18a provides:

(a) At least ten days before the date set for trial or other hearing ... any party may file with the clerk of the court a motion stating grounds why the judge before whom the case is pending should not sit in the case....

(c) Prior to any further proceedings in the case, the judge shall either recuse himself or request the presiding judge of the administrative judicial district to assign a judge to hear such motion. If a judge decides to recuse himself, he shall enter an order of recusal and request the presiding judge 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,

d) If the judge declines to recuse himself, he shall forward to the presiding judge of the administrative judicial district — an order of referral, the motion, and all opposing and concurring statements.

We agree with GM that a trial judge, when presented with a proper recu-sal motion, has the option of either recus-ing himself or referring the case to the administrative judge. Greenberg, Benson, Fisk & Fielder v. Howell, 685 S.W.2d 694, 695 (Tex.App.—Dallas 1984, orig. proceeding). The cases vary concerning whether a trial court may make the initial procedural inquiries concerning such matters as timeliness of the motion or sufficiency of the grounds for disqualification, etc.4 We need not reach that issue in order to dispose of the case before us.

Mandamus may issue only to correct a clear abuse of discretion or a trial court’s failure to perform a ministerial duty. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917-18 (Tex.1985). *358In a sense, the limited discretion allowed a trial judge in a recusal case is nearly ministerial in nature.

Our review of the record here shows that a motion to recuse was filed after verdict but before judgment. The trial judge has not recused himself, referred the case, or refused to rule. Although the trial court has not acted promptly on the recusal motion, we find that not so much time has passed that he has clearly refused to act. Further, the record does reflect that the court set a hearing on the recusal motion. We believe that when a trial judge is faced with a recusal motion, he may hold a hearing to determine if he will recuse himself from the case or refer the case to the administrative judge and enter an order. See Crawford v. State, 807 S.W.2d 597 (Tex.App.— Dallas 1991, no pet.). We prematurely granted leave before the hearing scheduled for April 30, 1992. We note that there was also a setting on the same date to determine plaintiffs’ motion for a mistrial. It clearly would have been improper for the trial court to have considered any other motion before it until the recusal motion was resolved.

We understand that filing recusal motions at a time other than prior to a trial is fraught with problems. However, the rule allows for sanctions if the presiding judge determines that the motion was sought for purposes of delay or without just cause. Tex.R.Civ.P. 18a(h). The purpose of the rule is to insure that all litigants may know that they have received a fair trial because the judge who presides over their case is impartial. The safeguards of the rule surely outweigh any delay tactic problems the rule may create.

In sum, we hold that the trial court did not clearly abuse his discretion. He should be given the opportunity to determine if he chooses to recuse himself or to refer the case to the administrative judge. If at the initial hearing, the trial court refuses to comply with Rule 18a, GM may then seek relief before this Court. At this point, the relief GM seeks is premature.

We deny the petition for writ of mandamus.

NYE, Chief Justice,

dissenting.

In this original proceeding, relator, General Motors Corporation, a defendant in the underlying suit, seeks the issuance of a writ of mandamus, compelling the Hon. Joe B. Evins to either recuse himself from post-trial proceedings in the underlying suit, or to request the Presiding Judge of the Administrative District to assign a judge to hear its Motion to Recuse Judge Evins. I would conditionally grant the Petition for Writ of Mandamus.

This Petition for Writ of Mandamus stems from a wrongful death and survival action filed in Judge Evins’ 206th District Court. The Plaintiffs in the underlying suit alleged that about January .20, 1990, Ausencio Perez was trying to clean the windshield of a 1984 Chevrolet Monte Carlo. At that time, the Monte Carlo was stopped with the engine running. Suddenly, the car shifted unassisted into reverse and began moving backward. Mr. Perez tried to stop the car, but he was knocked down and injured. Juan Ramon Zavala tried to assist Mr. Perez, but Mr. Zavala was struck and killed by the vehicle. The Plaintiffs sued GM, the Monte Carlo’s manufacturer, and Simpson Auto Sales, the dealership which sold the Monte Carlo, alleging strict liability, breach of warranty, negligence, and gross negligence in the design, manufacture, marketing, and sale of the Monte Carlo.

Before trial of the case, GM filed its “MOTION FOR RECUSAL AND/OR DISQUALIFICATION,” requesting that Judge Evins not sit in the case. GM alleged an existing attorney-client relationship between the Plaintiffs’ attorney-in-charge, Ramon Garcia, and Judge Evins. GM also alleged that Ramon Garcia and Judge Ev-ins were associated in the practice of law from 1972 to 1973. Judge Evins neither recused himself nor referred the case to the Presiding Judge of the Administrative District.

After a trial on the merits, the case was submitted to the jury on special questions. *359On December 17, 1991, the jury returned its verdict. In response to the liability questions, the jury found that Ausencio Perez (90%) and Juan Ramon Zavala (10%) were the only parties whose negligence proximately caused the occurrence.

GM now alleges that after receipt of the jury’s verdict, Judge Evins took custody of the verdict form. Without having the verdict filed, Judge Evins has continued to maintain exclusive possession of the verdict subsequent to its rendition. GM, through its attorney, Jose E. Garcia, had repeatedly sought to obtain a copy of the verdict from Judge Evins. However, all requests have been denied.1 According to GM, the verdict form has not been filed in the court records.

On March 4, 1992, GM filed its “DEFENDANT’S MOTION TO RECUSE JUDGE JOE B. EVINS FROM POST-TRIAL PROCEEDINGS.” GM based its post-trial re-cusal motion on three bases: an existing attorney-client relationship between the Plaintiffs’ primary attorney, Ramon Garcia, and Judge Evins;2 Judge Evins’ impounding of the official jury verdict; and Judge Evins’ conduct concerning the suit.3 GM requested that Judge Evins not sit in the remaining stages of the litigation.

*360On March 30, 1992, Ramon Garcia filed his “NOTICE OF WITHDRAWAL OF COUNSEL” in which he gave notice that Gayle Caldorola would be the Plaintiffs’ new counsel. That same day, Gayle Caldo-rola filed a Response to the Motion to Re-cuse and a Motion for Mistrial. On April 22, 1992, the Hon. Fernando Mancias, Judge of the 93rd District Court of Hidalgo County (Judge Mancias is not the Presiding Judge of the Administrative District), signed an Order setting an April 30, 1992, hearing date on the Motion to Recuse and on the Motion for Mistrial in the 206th District Court. That hearing did not occur because this Court granted GM’s “MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF MANDAMUS AND REQUEST FOR TEMPORARY RELIEF.” No motion for judgment or judgment have been presented to the court in the case to date.4

The Texas Rules of Civil Procedure are explicit with regard to motions to recuse. Rule 18a provides (emphasis added):

(a) At least ten days before the date set for trial or other hearing ... any party may file with the clerk of the court a motion stating grounds why the judge before whom the case is pending should not sit in the case ...

(c) Prior to any further proceedings in the case, the judge shall either recuse himself or request the presiding judge of the administrative judicial district to assign a judge to hear such motion. If the judge recuses himself, he shall enter an order of recusal and request the presiding judge 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,

d) If the judge declines to recuse himself, he shall forward to the presiding judge of the administrative judicial district ... an order of referral, the motion, and all opposing and concurring statements ....

Rule 18b provides, in relevant part:

*361(2) Recusal

A judge shall recuse himself in any proceeding in which:

(a) his impartiality might reasonably be questioned;

(4) In this rule:

(a) “proceeding” includes pretrial, trial, or other stages of litigation;

Rule 18a(c) is mandatory. McLeod v. Harris, 582 S.W.2d 772, 774 (Tex.1979) (orig. proceeding); Lamberti v. Tschoepe, 776 S.W.2d 651, 652 (Tex.App.—Dallas 1989, writ denied); Petitt v. Laware, 715 S.W.2d 688, 692 (Tex.App.—Houston [1st Dist.] 1986, writ ref'd n.r.e.); Greenberg, Benson, Fisk & Fielder, P.C. v. Howell, 685 S.W.2d 694, 695 (Tex.App.—Dallas 1984, no writ) (orig. proceeding); Gonzalez v. Gonzalez, 659 S.W.2d 900, 901 (Tex.App.—El Paso 1983, no writ). A trial judge, when presented with a recusal motion, regardless of the “procedural sufficiency” of that motion, has only two options, i.e., to recuse himself, or refer the case to the Presiding Judge of the Administrative District. Lamberti, 776 S.W.2d at 652; Greenberg, 685 S.W.2d at 695; Tex. R.Civ.P. 18a(c).5

Mandamus may issue only to correct a clear abuse of discretion or in a trial court’s failure to perform a ministerial duty. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917-18 (Tex.1985). Although appellate courts lack power to compel a trial judge to do a particular act involving or requiring discretion on his or her part, appellate courts do have power to order a trial judge to exercise discretion in some manner. Greenberg, 685 S.W.2d at 694-695; Boswell, O’Toole, Davis & Pickering v. Stewart, 531 S.W.2d 380, 382 (Tex. Civ.App.—Houston [14th Dist.] 1975, no writ); Jones v. Smith, 470 S.W.2d 305, 307 (Tex.Civ.App.—Houston [1st Dist.] 1971, no writ).

In the instant case, Judge Evins has not recused himself or referred the case to the Presiding Judge of the Administrative District. Instead, Judge Mancias has set the Motion to Recuse and the Motion for Mistrial to be heard at the same hearing. By pursuing an option unavailable through any rule or statute, Judge Evins abused his discretion as a matter of law. Lamberti, 776 S.W.2d at 652; Greenberg, 685 S.W.2d at 695. Since Judge Evins neither granted the motion to recuse nor referred the matter to the Presiding Judge of the Administrative District, Judge Mancias’ Order was void. Crawford v. State, 807 S.W.2d 597, 598 (Tex.App.—Dallas 1991, no pet.).

The purpose of Rule 18a is to insure that all litigants may know that they have received a fair trial because the judge who presides over their case is impartial. The safeguards of the rule surely outweigh any delay tactic problems the rule may create. Judge Evins, by allowing Judge Mancias to set the Motion to Recuse and the Motion for Mistrial to be heard at one hearing, has clearly taken an option not available to him and by doing so has abused his discretion as a matter of law. I would correct this abuse by conditionally granting the writ of mandamus on the terms above stated.