                                      NO. 07-09-00320-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                          PANEL A

                                 SEPTEMBER 23, 2010


                       IN THE INTEREST OF D.C., JR., A CHILD


              FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY;

           NO. 2002-517,897; HONORABLE RUBEN GONZALES REYES, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                               MEMORANDUM OPINION

       This is a private termination proceeding, in which the parental rights of the father

of D.C., Jr. were terminated on the petition of the child’s mother. Appearing pro se, the

father appeals. Making the claim for the first time, 1 he contends on appeal the trial

judge who heard the termination proceeding was disqualified.          We agree, and will

reverse the trial court’s judgment.


                                         Background


       D.C., Jr. was born to appellant and the child’s mother in November 2001. The

couple divorced in December 2002, in cause number 2002-517,897 in the 72nd District

       1
           Appellant presents seven other appellate issues. Because his issue asserting
the trial judge’s disqualification is dispositive, we do not address his remaining issues.
Tex. R. App. P. 47.1. 
Court, Lubbock County. In April 2009, the mother filed an original petition to terminate

appellant’s rights to D.C., Jr. 2 The case was tried to the bench in August 2009 before

the Honorable Ruben G. Reyes, presiding judge of the 72nd District Court.


       The clerk’s record before us contains the decree from the parties’ divorce, signed

by an assigned judge on December 16, 2002. The decree recites that the mother was

represented by attorney Natalio Hernandez. 3             The decree contains attorney

Hernandez’s signature, approving the decree’s form as attorney for the mother. By his

address, attorney Hernandez is shown as practicing with the Lubbock law firm of

Hurley, Reyes & Guinn. The statement of facts in appellant’s appellate brief contains

the statement of appellant’s “understanding that judge Ruben Reyes was part of this law

firm.” The mother has not contradicted the statement, and we accept it as true. 4


       Appellant was incarcerated in the Institutional Division of the Texas Department

of Criminal Justice during the pendency of the termination proceeding, and at the time it

was tried. He acted pro se at trial, appearing by telephone.


       In September 2009, after trial of the termination proceeding, Judge Reyes signed

the order terminating appellant’s parental rights. The order contains the court’s findings

that appellant failed to support D.C., Jr. in accordance with his ability during a period of
       2
       Although not a dispositive factor, we note the termination proceeding was filed in
the same cause number, 2002-517,897.
            
       3
             The clerk’s record contains the docket sheet for cause number 2002-517,897,
also listing Natalio Hernandez as attorney for the mother.
        
       4
             See Tex. R. App. P. 38.1(g) (so providing). We also take judicial notice that
Governor Rick Perry appointed Judge Reyes as judge of the 72nd District Court on
March 9, 2006, and that he was a member of Hurley, Reyes & Guinn at that time. Tex.
Register Vol. 31, No. 13; available at http://governor.state.tx.us/news/appointment/3069. 
                                              2
one year ending within six months of the date of the filing of the petition; and knowingly

engaged in criminal conduct that resulted in his conviction of an offense and

confinement or imprisonment and inability to care for the child for not less than two

years from the date the petition was filed; and the court’s finding that termination of the

parent-child relationship was in the best interest of the child. 5


                                              Analysis


       In his brief, appellant confuses recusal of a judge with disqualification. See In re

Wilhite, 298 S.W.3d 754, 760 (Tex.App.—Houston [1st Dist.] 2009) (orig. proceeding)

(en banc) (distinguishing the two). But his argument, at least in part, clearly presents

the complaint that Judge Reyes was disqualified from hearing the termination

proceeding by virtue of the mother’s representation in the 2002 divorce by a lawyer

associated with the law firm of which Judge Reyes also then was a part. Appellant cites

and quotes from Rule 18b(1) of the Rules of Civil Procedure. That rule disqualifies

judges from proceedings in which they have served as a lawyer “in the matter in

controversy,” and disqualifies judges from those in which “a lawyer with whom they

previously practiced law served during such association as a lawyer concerning the

matter.” Tex. R. Civ. P. 18b(1)(a); see Tex. Const. art. V, § 11 (stating “[n]o judge shall

sit in any case . . . when the judge shall have been counsel in the case”). 

       We agree with the mother’s contention that appellant did nothing to make Judge

Reyes aware of the potentially disqualifying circumstance. See Tex. R. Civ. P. 18a

(providing for motion stating grounds why judge should not sit in case). But the law is

       5
         See Tex. Family Code Ann. § 161.001 (Vernon 2009) (listing grounds for
termination of parental rights). 
                                               3
clear that, unlike statutory recusal, disqualification cannot be waived, and may be raised

at any time. McElwee v. McElwee, 911 S.W.2d 182, 186 (Tex. App.--Houston [1st Dist.]

1995) (orig. proceeding); see Tesco Am., Inc. v. Strong Indus., 221 S.W.3d 550, 555

(Tex. 2006) (appellate judge disqualified); Fry v. Tucker, 146 Tex. 18, 202 S.W.2d 218,

221-22 (1947) (consanguinity disqualification). Appellant may raise the issue of the trial

judge’s disqualification for the first time on appeal.


       We note also that nothing suggests Judge Reyes actually was aware of his

associate’s former involvement in the 2002 divorce proceeding. But the judge’s actual

knowledge of disqualifying events under Rule 18b(1)(a) is irrelevant. See Tesco Am.,

221 S.W.3d at 550; In re Wilhite, 298 S.W.3d 754


       Under the language of Rule 18b(1)(a), Judge Reyes is disqualified from the

termination proceeding if it involves the same “matter in controversy” as the divorce in

which attorney Hernandez represented the mother. See In re O’Connor, 92 S.W.3d

446, 449 (Tex. 2002) (orig. proceeding) (per curiam). We conclude that it does.


       Like this case, O’Connor involved Family Code proceedings. There, the Texas

Supreme Court granted mandamus relief requiring disqualification of a trial court judge

from presiding over a modification proceeding because his law partner represented the

wife when temporary orders were entered some years before. 92 S.W.3d at 447. Even

though the terms the wife sought to modify were those contained in a later agreed

divorce decree, not those contained in the temporary orders, the Supreme Court found

that the modification proceeding raised again the matters of custody, visitation and right

to determine the child’s residence that were resolved by the temporary orders.

                                              4
Accordingly, the court concluded that the divorce action and the modification proceeding

involved the same matter in controversy, requiring the judge’s disqualification. Id. at

449.


       Here, in the part of the divorce decree dealing with the parent-child relationship,

the court named the mother as sole managing conservator and appellant as possessory

conservator.   The court found that appellant had a history or pattern of committing

family violence but found that his access to the child would not endanger the child’s

physical health or emotional welfare and would be in the best interest of the child. It

ordered supervised visitation rights for appellant, ordered appellant to pay child support

and enjoined appellant from injurious or threatening actions toward the mother.


       As noted, the termination proceeding litigated appellant’s commission of the

actions of failing to support the child in accordance with his ability and knowingly

engaging in criminal conduct causing his conviction, confinement and inability to care

for the child, as well as the issue whether termination of the parent-child relationship

with appellant was in the child’s best interest. Like in O’Connor, we find the termination

proceeding raised again, between the same parties, issues of the child’s best interest

and other aspects of the relationship between appellant and his son that were in

controversy in the 2002 divorce. See In re Wilhite, 298 S.W.3d at 760 (distinguishing

O’Connor by characterizing it as “a continuing dispute between the same plaintiff and

same defendant over a series of lawsuits concerning the exact same subject, such as

custody of the same child”).




                                            5
       One might argue that termination of parental rights and the litigation of child

custody and support provisions on divorce are fundamentally different proceedings

involving differing standards and issues.     But the Supreme Court rejected a similar

argument in O’Connor, holding that the differing standards and burdens of proof under

the chapter of the Family Code governing original custody determinations and the

chapter governing modification proceedings did not mean that the two proceedings

could not involve the same matter in controversy for purposes of disqualification. 92

S.W.3d at 449-450.


       We find the trial judge was disqualified from hearing the termination proceeding

on the ground set forth by appellant. We sustain appellant’s first issue and reverse the

judgment of the trial court. The matter is remanded to the trial court.




                                                               James T. Campbell
                                                                    Justice




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