                               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.
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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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                              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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