                                            COURT OF APPEALS
                                         EIGHTH DISTRICT OF TEXAS
                                              EL PASO, TEXAS

                                                             §
 DANIEL RANDOLPH, JR.,                                                           No. 08-08-00157-CV
                                                             §
                              Appellant,                                              Appeal from
                                                             §
 v.                                                                               112th District Court
                                                             §
 TEXACO EXPLORATION AND                                                       of Crockett County, Texas
 PRODUCTION, INC., CIGNA                                     §
 PROPERTY AND CASUALTY OF                                                      (TC # 99-01-06153-CV)
 DALLAS, and DAVID K. LINE,                                  §
 ATTORNEY AT LAW,
                                                             §
                              Appellees.
                                                             §

                                                     OPINION

         Daniel Randolph, Jr., pro se, appeals from no evidence summary judgments granted in favor

of Texaco Exploration and Production, Inc.,1 Cigna Property and Casualty of Dallas, and David K.

Line. We affirm.

                                             FACTUAL SUMMARY

         On January 4, 1999, Randolph filed suit against several defendants, including TEPI, Cigna

Property and Casualty, and his former attorney, David K. Line, alleging numerous claims, including

negligence, gross negligence, fraud, conspiracy, employment discrimination, and violations of the

Deceptive Trade Practices Act and the Americans with Disabilities Act. On October 31, 2001, the

trial court granted summary judgment in favor of all the defendants, except for Line, and Randolph



         1
           In the clerk’s record, the suit is styled Daniel Randolph, Jr. v. Texaco Inc., U.S.A., but Randolph’s brief states
that he incorrectly identified the defendant as Texaco Inc., U.S.A. and the correct name is Texaco Exploration and
Production, Inc. Accordingly, we will refer to this Appellee as Texaco Exploration and Production, Inc. or TEPI.
appealed. We dismissed the appeal for want of jurisdiction because the judgment was not final given

that Randolph’s claims against Line were still pending. Daniel Randolph, Jr. v. Texaco Exploration

& Production, Inc., Sandy Khalilinia, Jack E. Weber, and Bob Mayo, No. 08-01-00513-CV, 2003

WL 1949388 (Tex.App.--El Paso, April 24, 2003, no pet.). On November 2, 2006, five years after

the trial court granted summary judgment, Randolph filed a motion to recuse the Honorable Brock

Jones, Judge of the 112th District Court. Judge Jones voluntarily recused himself stating in the

recusal order that he did so “[t]o avoid the appearance of impropriety,” and the Honorable Joseph

Connally was assigned to the case. Judge Connally subsequently granted Line’s no evidence

summary judgment motion and Randolph filed notice of appeal.

                                                        TEPI

         In Issue One, Randolph raises three separate arguments related to the judgment granted in

favor of TEPI.2

                                        No Evidence Summary Judgment

         First, Randolph argues the trial court erred in granting the no-evidence summary judgment.

Randolph fails to discuss the standard of review applicable to this issue, provide any analysis, or cite

any relevant authority. Rule 38.1(i) of the Texas Rules of Appellate Procedure requires that the brief

contain a clear and concise argument for the contentions made, with appropriate citations to the

authorities and to the record. TEX .R.APP .P. 38.1(i). Randolph has waived this argument because

this portion of his brief does not comply with Rule 38.1(i). Torres v. GSC Enterprises, Inc., 242

S.W.3d 553, 556 (Tex.App.--El Paso 2007, no pet.).

                                             Recusal/Disqualification


         2
            The table of contents in Randolph’s brief contains a section for each of the three appellees and each section
contains one or more issues but the issues are not numbered. W e will refer to the section relating to TEPI as Issue One,
the section relating to Cigna as Issue Two, and the section relating to Line as Issue Three.
       Second, Randolph contends that the summary judgment is void because the trial judge who

heard that portion of the case, Judge Brock Jones, was partial and biased in favor of TEPI because

he engaged in written ex parte communications with counsel about the case. He also asserts that

Judge Jones was constitutionally disqualified. Judges may be removed from a particular case either

because they are constitutionally disqualified,3 because they are subject to a statutory strike,4 or

because they are recused under rules promulgated by the Texas Supreme Court.5 In re Union Pacific

Resources Company, 969 S.W.2d 427, 428 (Tex. 1998); Esquivel v. El Paso Healthcare Systems,

Ltd., 225 S.W.3d 83, 87 (Tex.App.--El Paso 2005, no pet.). The grounds and procedures for each

type of removal are fundamentally different.                       Esquivel, 225 S.W.3d at 87.   If a judge is

constitutionally disqualified or subject to disqualification under Texas Government Code § 74.053,

any orders or judgment rendered by him are void. Id. Thus, a constitutional disqualification may

be raised at any stage of the proceedings and cannot be waived. Id. at 87-88. In contrast, the

existence of grounds for recusal of a judge does not void or nullify subsequent proceedings before

that judge and can be waived if not raised by proper motion. Id. at 87-88.

       In 2006, Randolph filed a motion to recuse the trial judge long after this court had dismissed

Randolph’s appeal for want of jurisdiction because the summary judgment granted in favor of TEPI

and Cigna was not final. The only basis for recusal stated in Randolph’s motion was that Judge

Jones had failed to rule with respect to the remaining defendant, Line. Judge Jones voluntarily

recused himself “[t]o avoid the appearance of impropriety.” After Judge Jones’ voluntary recusal,

Randolph filed a motion to modify the judgment because the judge had allegedly engaged in an ex


       3
           T EX .C O N ST . art. 5, § 11.

       4
           T EX .G O V ’T C OD E A N N . § 74.053 (Vernon 2005).

       5
           T EX .R.C IV .P. 18b; T EX .R.A PP .P. 16.
parte written communication with counsel for TEPI. The record does not reflect that Randolph

obtained a ruling on his motion and there is no evidence in the record to support Randolph’s

assertions that Judge Jones was subject to recusal on grounds of partiality or bias or that he was

constitutionally disqualified. Randolph’s second argument is without merit.

                                        The Assigned Judge

        In the third sub-part of Issue One, Randolph alleges that the judge assigned to hear the case,

Judge Connally, acted in an arbitrary and unreasonable manner and denied him a full and fair

hearing. The precise nature of Randolph’s complaint about Judge Connally is unclear from the brief

as he does not identify how the trial judge acted arbitrarily or at what point the judge denied him a

hearing. At any rate, Randolph has waived these arguments because he does not discuss the

applicable standard of review, does not provide any analysis of the issues, and does not cite any

relevant authority. TEX .R.APP .P. 38.1(i); Torres, 242 S.W.3d at 556. Issue One is overruled.

                                               CIGNA

        In the brief’s table of contents, Randolph purports to raise an issue pertaining to the summary

judgment granted in favor of Cigna but we have been unable to find any corresponding issue or

argument in the body of the brief. Because Randolph has waived any claim of error by failing to

brief it, we overrule Issue Two. See TEX .R.APP .P. 38.1(i); Torres, 242 S.W.3d at 556. We affirm

the judgment granted in favor of Cigna.

                                          DAVID K. LINE

        In Issue Three, Randolph raises multiple grounds related to the judgment granted in favor of

Line.

                                 No-Evidence Summary Judgment

        First, Randolph challenges the no-evidence summary judgment granted in favor of Line.
Randolph did not file a timely response to the summary judgment motion. After the trial court

signed the order granting summary judgment, Randolph filed a motion for new trial asserting that

his original response had been lost in the mail. He also filed a summary judgment response. The

trial court denied the motion for new trial.

       Rule 166a(i) provides:

       After adequate time for discovery, a party without presenting summary judgment
       evidence may move for summary judgment on the ground that there is no evidence
       of one or more essential elements of a claim or defense on which an adverse party
       would have the burden of proof at trial. The motion must state the elements as to
       which there is no evidence. The court must grant the motion unless the respondent
       produces summary judgment evidence raising a genuine issue of material fact.

TEX .R.CIV .P. 166a(i). A trial court is required to grant a no-evidence motion for summary judgment

that meets the requirements of Rule 166a(i) if the respondent fails to produce summary judgment

evidence raising a genuine issue of material fact. See TEX .R.CIV .P. 166a(i). Generally, the

non-movant who fails to file a response and produce evidence is restricted to arguing on appeal that

the no-evidence summary judgment is insufficient as a matter of law. Viasana v. Ward County, 296

S.W.3d 652, 654 (Tex.App.--El Paso 2009, no pet.); see Roventini v. Ocular Sciences, Inc., 111

S.W.3d 719, 723 (Tex.App.--Houston [1st Dist.] 2003, no pet.)(when the respondent does not file

a response, the controlling issue is whether the summary judgment motion was sufficient to warrant

the no-evidence summary judgment and thus shifted the burden to the respondent to produce

evidence that raised a genuine issue of material fact). Rather than challenge the sufficiency of Line’s

summary judgment motion, Randolph points to evidence included in his late-filed response and

argues it creates a fact issue. We are unable to consider Randolph’s untimely response in passing

on this issue because the trial court did not grant leave for the late-filed response. See Fertic v.

Spencer, 247 S.W.3d 242, 250-51 (Tex.App.--El Paso 2007, pet. denied).
                                     Ex Parte Communication

       Randolph next alleges that Judge Connally engaged in an ex parte communication with Line

on April 9, 2008. Randolph filed a written objection based on a statement in a letter from Line to

the court administrator, Cathy Carson, where counsel stated that Judge Connally had asked him to

respond to Randolph’s request for findings of fact and conclusions of law. Under Canon 3(B)(8) of

the Texas Code of Judicial Conduct, a judge is prohibited from initiating, permitting, or considering

ex parte communications concerning the merits of a pending case. TEX .CODE JUD .CONDUCT , Canon

3(B)(8), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. B (Vernon 2005). An ex parte

communication is one that involves fewer than all parties who are legally entitled to be present

during the discussion of any matter. Erskine v. Baker, 22 S.W.3d 537, 539 (Tex.App.--El Paso 2000,

pet. denied). The purpose behind prohibiting ex parte communications is to ensure that all legally

interested parties are given their full right to be heard under the law. In re Thoma, 873 S.W.2d 477,

496 (Tex.Rev.Trib. 1994, on appeal).

       The record does not reflect that the trial court ruled on Randolph’s objection. Therefore, his

complaint is waived. TEX .R.APP .P. 33.1. Even if the issue had been preserved, the trial court’s

request that Line file a response to Randolph’s request for findings of fact and conclusions of law

does not constitute an ex parte communication about the merits of the case. This argument is

without merit.

                                        Frivolous Pleadings

       Finally, Randolph contends that Line’s original answer and motion for summary judgment

are frivolous pleadings filed in violation of Rule 13 of the Texas Rules of Civil Procedure. Rule 13

authorizes the imposition of sanctions if an attorney files an instrument that is groundless and is

brought in bad faith or for the purposes of harassment. TEX .R.CIV .P. 13. The record does not reflect
that Randolph filed a motion for sanctions pursuant to Rule 13. Consequently, nothing is presented

for our review. TEX .R.APP.P. 33.1. Issue Three is overruled. Having overruled each of the issues

presented on appeal, we affirm the judgment of the trial court.


March 17, 2010
                                                     ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Rivera, JJ.
