                                     NO. 12-12-00080-CV

                        IN THE COURT OF APPEALS

                TWELFTH COURT OF APPEALS DISTRICT

                                        TYLER, TEXAS

KYLE EDWIN BARNHILL,                                   §         APPEAL FROM THE 145TH
APPELLANT

V.                                                  §           JUDICIAL DISTRICT COURT

WILLIAM A. AGNEW, JR.
AND DEAN WATTS,
APPELLEES                                          §           NACOGDOCHES COUNTY, TEXAS



                                    MEMORANDUM OPINION
                                        PER CURIAM
        Kyle Edwin Barnhill appeals the trial court‟s denial of his motion to recuse the district
court judge and the orders granting summary judgment rendered in favor of Appellees William
A. Agnew, Jr. and Dean Watts. Barnhill raises seven issues on appeal. We reverse and remand.


                                             BACKGROUND
        A Nacogdoches County jury found Barnhill “guilty” of murder and assessed his
punishment at imprisonment for life. Barnhill appealed. On appeal, his counsel filed a brief in
compliance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967),
and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). Thereafter, Barnhill filed a pro
se brief in which he argued that (1) the trial court abused its discretion in denying his motion for
change of venue and (2) the State‟s attorney engaged in prosecutorial misconduct by not recusing
herself. This court reviewed the record for reversible error and, finding none, dismissed the
appeal.1

        1
           See Barnhill v. State, No. 12-09-00406-CR, 2011 WL 1199124, at *1 (Tex. App–Tyler Mar. 31, 2011,
pet. denied) (mem. op., not designated for publication).
         Thereafter, Barnhill filed the instant lawsuit against Agnew, his trial counsel, and Watts,
his appellate counsel, in which he alleged that they are liable to him for legal malpractice.
Agnew and Watts each filed motions for summary judgment, to which Barnhill responded.
Barnhill also filed a “Motion to Disqualify” the trial judge because “[t]he Honorable Judge
Cox[„s] close professional working proximity to Judge Edwin Klein, places him in a most
difficult position of offending Judge Klein, with a ruling in favor of Barnhill.” 2 The trial judge
signed an order denying Barnhill‟s motion because it was not timely filed under Texas Rule of
Civil Procedure 18a. Subsequently, the trial court granted Agnew‟s and Watts‟s motions for
summary judgment. This appeal followed.


                                              MOTION TO RECUSE
         In his first issue, Barnhill argues that the trial court abused its discretion in denying his
motion to recuse and, as a result, the summary judgments rendered in favor of Agnew and Watts
are void. We review the trial court‟s denial of a motion to recuse for abuse of discretion. See
TEX. R. CIV. P. 18a(j)(1)(A). A trial court abuses its discretion when it acts in an unreasonable or
arbitrary manner or when it acts without reference to any guiding principles.                            Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985); Hart v. Kozik, 242 S.W.3d
102, 106 (Tex. App.–Eastland 2007, no pet.).
         When a party files a motion to recuse a trial judge, the responding judge, regardless of
whether the motion complies with the requisites of Texas Rule of Civil Procedure 18a, must,
within three business days after the motion is filed (1) sign and file with the clerk an order of
recusal or (2) sign and file with the clerk an order referring the motion to the regional presiding
judge. See TEX. R. CIV. P. 18a(f)(1). Failure to comply with the rule renders void any actions
taken subsequent to the violation. In re A.R., 236 S.W.3d 460, 477 (Tex. App.–Dallas 2007, no
pet.).
         In the case at hand, the trial judge did not refer the motion to the regional presiding judge
or recuse himself, but rather, denied Barnhill‟s motion to recuse because it was not timely filed
under Texas Rule of Civil Procedure 18a. However, Rule 18a(f) specifically states that a trial



         2
           Although Barnhill styled his motion as a motion to disqualify the trial judge, the stated ground for the
motion, if true, is a ground for recusal. See TEX. R. CIV. P. 18b(a), (b). Accordingly, we treat Barnhill‟s motion as a
motion to recuse. See TEX. R. CIV. P. 71.


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judge must adhere to its mandates regardless of whether the motion complies with the requisites
of Rule 18a. See TEX. R. CIV. P. 18a(f)(1). Therefore, we hold that because the trial judge failed
to comply with Rule 18a(f), the court‟s order denying Barnhill‟s motion to recuse and its orders
granting summary judgment in favor of Agnew and Watts are void. See In re A.R., 236 S.W.3d
at 477. Barnhill‟s first issue is sustained.3


                                                    DISPOSITION
         Having sustained Barnhill‟s first issue,4 we reverse the trial court‟s judgment and remand
the cause for further proceedings consistent with this opinion.
Opinion delivered October 16, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                    (PUBLISH)



         3
          We have not considered the substance of the motions underlying these orders, and our holding should not
be construed as a comment on the strength or validity of the motions.
         4
          Because our resolution of Barnhill‟s first issue is dispositive of this appeal, we do not consider his
remaining issues. See TEX. R. APP. P. 47.1.




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                               COURT OF APPEALS
           TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                         JUDGMENT

                                        OCTOBER 16, 2013


                                      NO. 12-12-00080-CV

                                   KYLE EDWIN BARNHILL,
                                          Appellant
                                             V.
                                    THE STATE OF TEXAS,
                                          Appellee

_____________________________________________________________________________
                     Appeal from the 145th Judicial District Court
                 of Nacogdoches County, Texas. (Tr.Ct.No. C1127731)
_____________________________________________________________________________

                      THIS CAUSE came to be heard on the appellate record and the briefs filed
herein, and the same being considered, because it is the opinion of this court that there was error
in the judgment of the court below, it is ORDERED, ADJUDGED and DECREED by this court
that the judgment be reversed and the cause remanded to the trial court for further
proceedings; and that this decision be certified to the court below for observance.
                      By per curiam opinion.
                      Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




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