                                   NO. 12-08-00458-CV

                          IN THE COURT OF APPEALS

            TWELFTH COURT OF APPEALS DISTRICT

                                        TYLER, TEXAS
ROBERT L. CLARK,
APPELLANT                                               '    APPEAL FROM THE 241ST

V.                                                      '    JUDICIAL DISTRICT COURT OF

THE CITY OF TYLER, GARY SWINDLE,
FRANK BREWER, DESTRY
WALSWORTH, BILL GOECKING,
MICHAEL MALONE, DARRELL          ' SMITH COUNTY, TEXAS
GARDNER, TOMMY WHITWORTH,
JOHN BROWN, JEFF RACKLIFF,
AND JOHN RAGLAND
APPELLEES
                      MEMORANDUM OPINION
        Robert L. Clark appeals the trial court’s summary judgment entered in favor of
the City of Tyler, Police Chief Gary Swindle, and Officers Frank Brewer, Destry
Walsworth, Bill Goecking, Michael Malone, Darrell Gardner, Tommy Whitworth, John
Brown, Jeff Rackliff, and John Ragland (collectively “Appellees”).1 Clark raises ten
issues on appeal. We affirm.

                                           BACKGROUND
        On May 22, 2006, Clark filed suit against Appellees alleging sixteen causes of
action arising from the revocation of his community supervision. On August 21, 2008,
Appellees filed both no evidence and traditional motions for summary judgment.
Pursuant to local rule, both motions contained notice that the submission date for the
motions was September 22, 2008.
        In response, Clark filed a motion to recuse Judge Jack Skeen as the trial judge in
the case. The sole ground alleged in Clark’s recusal motion was that Judge Skeen was
“partial and/or bias [sic] in this case” due to his “close and/or working relationship with


        1
           Clark also sued a number of other governmental entities and individuals. These defendants were
severed from the suit against Appellees prior to this appeal. We do not consider Clark’s issues to the
extent they concern these severed entities.
the defendant(s),” resulting from his former position as the district attorney of Smith
County, Texas. Judge Skeen entered an order stating the reasons why he would not
recuse himself and referred the motion to Judge John Ovard, the regional presiding judge
of the First Administrative Judicial Region of Texas. Judge Ovard, without a hearing,
signed an order dated October 1, 2008, denying Clark’s motion to recuse.
         On October 2, 2008, Clark filed his first amended petition. On October 15, 2008,
Judge Skeen entered orders granting Appellees’ no evidence and traditional motions for
summary judgment and a final judgment dismissing Clark’s suit. On October 17, 2008,
Clark filed a request for leave to respond to the two motions for summary judgment. On
October 29, 2008, Clark filed a motion for new trial, which was denied by operation of
law. Clark timely filed this appeal.

                                        SUMMARY JUDGMENT
         In his fourth issue, Clark argues that the trial court erred in granting Appellees’ no
evidence motion for summary judgment. In his fifth issue, Clark contends that the trial
court erred in granting Appellees’ traditional motion for summary judgment.2 In his
seventh issue, Clark argues that both Appellees’ traditional and no evidence motions are
insufficient as a matter of law as a result of his filing his First Amended Petition.3
Standard of Review
         Because the grant of a summary judgment is a question of law, we review the trial
court’s summary judgment decision de novo. Valence Operating Co. v. Dorsett, 164
S.W.3d 656, 661 (Tex. 2005). A no evidence motion for summary judgment must be
granted if, after an adequate time for discovery, (1) the moving party asserts that there is
no evidence of one or more essential elements of a claim or defense on which the adverse
party would have the burden of proof at trial, and (2) the respondent produces no
summary judgment evidence raising a genuine issue of material fact on those elements.
See TEX. R. CIV. P. 166(a)(i); Priddy v. Rawson, 282 S.W.3d 588, 593 (Tex. App.–
Houston [14th Dist.] 2009, pet. denied). A genuine issue of material fact exists if more
than a scintilla of evidence establishing the existence of the challenged element is
produced. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). Less than a

         2
           Clark’s fourth and fifth issues partially concern his lack of opportunity to conduct discovery in
this suit. To the extent necessary, we will consider this portion of Clark’s fourth and fifth issues in
conjunction with our consideration of his tenth issue.
         3
          We have construed Appellant=s statement of issues liberally in the interest of justice. See, e.g.,
Harris v. Tex. Dep’t Crim. Justice-Institutional Div., No. 12-03-00363-CV, 2004 WL 1192541, at *2 n.2
(Tex. App.–Tyler May 28, 2004, no pet.) (mem. op.).
scintilla of evidence exists when the evidence is so weak as to do no more than create a
mere surmise or suspicion of a fact. King Ranch, Inc. v. Chapman, 118 S.W.3d 742,
751 (Tex. 2003). More than a scintilla of evidence exists when the evidence rises to a
level that would enable reasonable and fair minded people to differ in their conclusions.
Id.
       To be entitled to a traditional summary judgment, a defendant must conclusively
negate at least one essential element of each of the plaintiff’s causes of action or
conclusively establish each element of an affirmative defense. Priddy, 282 S.W.3d at
592. When reviewing a summary judgment, we “must examine the entire record in the
light most favorable to the nonmovant, indulging every reasonable inference and
resolving any doubts against the motion.” City of Keller v. Wilson, 168 S.W.3d 802,
824–25 (Tex. 2005). When a trial court’s order granting summary judgment does not
specify the ground or grounds relied on for the ruling, summary judgment will be
affirmed on appeal if any of the theories advanced are meritorious. State Farm Fire &
Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993). When, as here, the trial court grants
both the no evidence and traditional motions for summary judgment, we first review the
grant of the no evidence summary judgment. Ridgway, 135 S.W.3d at 600.
Failure to Respond to No Evidence Motion for Summary Judgment
       In their no evidence motion for summary judgment, Appellees alleged that Clark
(1) failed to state a claim for which the City’s governmental immunity had been waived
and (2) failed to assert a state claim against the officers. Clark did not file a response to
Appellees’ no evidence motion until October 17, two days after the court entered the
order granting their no evidence motion and entering a final judgment dismissing Clark’s
claims against Appellees.4
       Texas Rule of Civil Procedure 166a(c) provides as follows:

       The motion for summary judgment shall state the specific grounds therefor. Except on
       leave of court with notice to opposing counsel, the motion and any supporting affidavits
       shall be filed and served at least twenty-one days before the time specified for hearing.
       Except on leave of court, the adverse party, not later than seven days prior to the date of
       hearing may file and serve opposing affidavits or other written response.


TEX. R. CIV. P. 166a(c). “Summary judgment evidence may be filed late, but only with
leave of court.” Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996). The
date of submission has the same meaning as the day of hearing under Texas Rule of Civil
Procedure 166a(c). Rorie v. Goodwin, 171 S.W.3d 579, 583 (Tex. App.–Tyler 2005, no

       4
           No summary judgment evidence accompanied Clark’s response.
pet.) (citing Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex.
1998)). We do not consider an amended pleading filed without the court’s permission
after the summary judgment hearing. Mensa-Wilmot v. Smith Intern., Inc., 312 S.W.3d
771, 779 (Tex. App.–Houston [1st Dist.] 2009, no pet.).
        As a result, we cannot consider Clark’s response to Appellees’ no evidence
motion. With regard to the first amended petition filed on October 2 that is the basis for
Clark’s seventh issue, we note that an amendment that is not timely and not allowed by
the trial court does not supersede the prior petition. See id. at 779–80. Thus, Appellees
were not required to amend or supplement their motions to address this claim. See id.
Because Clark did not timely produce summary judgment evidence raising a genuine
issue of material fact, we hold that the trial court properly granted Appellees’ no evidence
motion for summary judgment. See TEX. R. CIV. P. 166a(i) (trial court must grant no
evidence motion for summary judgment unless respondent produces summary judgment
evidence raising a genuine issue of material fact). Clark’s fourth issue is overruled in
part. Clark’s seventh issue is overruled with regard to his no evidence motion for
summary judgment.5


                                       MOTION TO RECUSE
        In his first and third issues, Clark contends that the trial judge took actions that
were improper because there had been no hearing on his motion to recuse. In his second
issue, Clark argues that the presiding judge abused his discretion by denying his motion
to recuse without holding a hearing. In his ninth issue, Clark contends that the presiding
judge did not have his trial court’s file before him when making his ruling on his motion
to recuse.
        The Texas Rules of Civil Procedure provide that a judge shall recuse himself in
any proceeding in which “his impartiality might reasonably be questioned.” TEX. R. CIV.
P. 18b(2)(a); Woodruff v. Wright, 51 S.W.3d 727, 735–36 (Tex. App.–Texarkana 2001,
pet. denied). We review the denial of a motion to recuse for abuse of discretion. See
TEX. R. CIV. P. 18a(f); Vickery v. Vickery, 999 S.W.2d 342, 349 (Tex. 1999) (op. on
reh’g); Woodruff, 51 S.W.3d at 736. The test for abuse of discretion is not whether in
the opinion of the reviewing court the facts present an appropriate case for the trial

        5
          Because we have held that the trial court properly granted Appellees’ no evidence motion for
summary judgment, we need not reach Clark’s fifth issue concerning whether the trial court properly
granted Appellees’ traditional motion for summary judgment on the issue of limitations.
court’s action; rather, it is a question of whether the court acted without reference to any
guiding rules or principles. Id. The mere fact that a trial court may decide a matter
within its discretionary authority in a different manner than an appellate judge does not
demonstrate such an abuse. Id.
        In Clark’s motion to recuse, he contended that the trial judge had developed a
close working relationship with Appellees during the time he was the District Attorney
for Smith County. Rule 18b(2)(a) states that “[a] judge shall recuse himself in any
proceeding in which his impartiality might reasonably be questioned.” TEX. R. CIV. P.
18b(2)(a). Clark’s basis for recusal is not valid. Cf. Keene Corp. v. Rogers, 863 S.W.2d
168, 172 (Tex. App.–Texarkana 1993, no writ) (trial judge not required to recuse self
when his son-in-law was a salaried associate of firm representing party to suit and who
had neither financial interest in firm or direct financial interest in outcome of case); cf.
also Liteky v. U.S., 510 U.S. 540, 542, 554–56, 114 S. Ct. 1147, 1151, 1157, 127 L. Ed.
2d 474 (1994); Hathorne v. State, 459 S.W.2d 826, 829 (Tex. Crim. App. 1970) (fact
that trial judge personally prosecuted appellant in past cases does not disqualify him from
presiding over trial where new offense is charged).6 Therefore, even assuming the trial
judge in the instant case had worked with Appellees on previous criminal cases, this
working relationship alone is not a ground for recusal.
        Rule 18a’s mandate that a hearing be held on a motion to recuse is not triggered
unless the recusal motion states valid grounds for disqualification. See Texaco, Inc. v.
Pennzoil, Co., 729 S.W.2d 768, 855 (Tex. App.–Houston [1st Dist.] 1987, writ ref’d,
n.r.e.). As set forth above, Clark’s grounds for recusal are not valid. Consequently, the
presiding judge was not required to hold a hearing on Clark’s motion to recuse.
        With regard to Clark’s contention that the presiding judge did not have the trial
court’s file before him when he issued his order denying the motion to recuse, we note
that we are required to indulge every reasonable presumption in favor of the judgment or
order of the trial court. See Rich v. Olah, 274 S.W.3d 878, 883 (Tex. App.–Dallas 2008,
no pet.). We will indulge no presumption against the validity of a court’s order. Id.; see
also Yorkshire Ins. Co. Ltd. v. Seger, 279 S.W.3d 755, 774 (Tex. App.–Amarillo 2007,
no pet.).    “We will not find recusal appropriate solely on the basis of speculation
regarding facts that may or may not have been known by the presiding judge.” Id. There
is no evidence in the record before us that can serve to overcome the presumption that the


        6
          The procedures for recusal of judges set out in the Texas Rules of Civil Procedure are the same
procedures applied in criminal cases. See De Leon v. Aguilar, 127 S.W.3d 1, 5 (Tex. Crim. App. 2004).
presiding judge had the complete record before him when he signed the order denying
Clark’s motion to recuse. Accordingly, we hold that Clark has not demonstrated an abuse
of discretion by either Judge Skeen or Judge Ovard related to his recusal motion. Clark’s
first, second, third, and ninth issues are overruled.


                                 CONSTITUTIONAL CLAIMS
       In his sixth issue, Clark contends that the trial court deprived him of his
constitutional protections of procedural due process and substantive due process when it
entered the summary judgments against him. We disagree. The failure of a trial court to
adhere to a state statutory procedure, such as the Texas Rules of Civil Procedure, is a
violation of the statute, not a violation of constitutional rights. See Chavez v. State, 91
S.W.3d 797, 800 (Tex. Crim. App. 2002); see also Whatley v. Philo, 817 F.2d 19, 21 (5th
Cir. 1987) (state official’s violation of state law is matter of state law, not federal
constitutional law). As such, the trial court did not deprive Clark of the aforementioned
constitutional protections by its ruling pursuant to rule 166a(i). Moreover, the trial
court’s ruling did not violate state law. As set forth in our disposition of Clark’s issues
four, five, and seven, the trial court properly granted Appellees’ no evidence motion for
summary judgment. Clark’s sixth issue is overruled.


              REQUEST FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW
       In his eighth issue, Clark contends that the trial court erred in failing to make
findings of fact and conclusions of law following the entry of its summary judgments.
Findings of fact and conclusions of law have no place in a summary judgment
proceeding. Tarrant Restoration v. Tarrant Arlington Oaks, 225 S.W.3d 721, 729 (Tex.
App.–Dallas 2007, pet. dism’d w.o.j.) (citing Linwood v. NCNB Texas, 885 S.W.2d 102,
103 (Tex. 1994)). Therefore, we hold that the trial court did not err in declining to make
findings of fact and conclusions of law. Clark’s eighth issue is overruled.




                                         DISCOVERY
       In his tenth issue, Clark contends that the trial court erred by not scheduling
discovery prior to the entry of its orders on Appellees’ motions for summary judgment.
When a party contends that it has not had an adequate opportunity for discovery before a
summary judgment hearing, it must file either an affidavit explaining the need for further
discovery or a verified motion for continuance. See Mackey v. Great Lakes Invs., Inc.,
255 S.W.3d 243, 252 (Tex. App.–San Antonio 2008, pet. denied). Here, by his failure to
file the required affidavit or a verified motion, Clark has waived his argument regarding
the adequacy of time allotted for discovery. See Flores v. Flores, 225 S.W.3d 651, 655
(Tex. App.–El Paso 2006, pet. denied). Clark’s tenth issue is overruled. To the extent
that it relates to his lack of opportunity to conduct discovery, Clark’s fourth issue is
overruled.


                                               DISPOSITION
         Having overruled Clark’s first, second, third, fourth, sixth, seventh, eighth, ninth,
and tenth issues, and having not reached Clark’s fifth issue, we affirm the trial court’s
judgment.

                                                                JAMES T. WORTHEN
                                                                    Chief Justice
Opinion delivered September 1, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.



                                                (PUBLISH)
