REVERSE and RE’IAND; Opinion issued January 29, 2013




                                                         in The
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                                                   No. 05-l0-01592-CV


                                     VICTOR ENTERPRISES, INC., Appellant

                                                           V.

                                           CLIFFORD HOLLAND, Appellee


                                 On Appeal from the County Court at Law No. I
                                             Dallas County, Texas
                                     Trial Court Cause No. CC-09-07625.A


                                         MEMORANDUM OPINION
                                       Before Justices Bridges. Richter, and Lang
                                              Opinion By Justice Bridges

        In eleven issues, appellant Victor Enterprises, Inc. (“VEI”) appeals from a final judgment

entered in favor olappellee Clifford Holland. Because we conclude the trial judge erred in failing

to either recuse herself or refer appellant’s first motion to recuse, we reverse and remand.

                                                      Background

        Trial of the underlying lawsuit commenced on October 29, 2009, and then progressively

continued on May 6, 2010, September 9, 2010, and September 20, 2010. Nearly 9 months after the

October 2009 commencement oftrial, Holland filed his first supplement to second amended answer’



    This supplement   is   tiled on ink 14. 2010
and, for the first time, asserted a counterclaim br “all damaees Iursuant to TEx. R. Civ. P. 752.

including. but not limited to. attorney s tees, costs, lost time. and mental anguish damages.”

            VEI flied its initial motion to recuse Judge Benson (“First Recusal Motion”) on September

1, 2010. The First Recusal Motion. including its certificate of service. was dated August 30, 2010.

On September 9, 2010, the parties appeared before the trial court, and Judge Benson denied the

motion to recuse as follows:

            On September 1st. by file mark. [VEIl filed a motion to recuse. It was mailed on
            August 30th. which is less than the necessary time for filing a motion for recusah
            therefore, the Court is denying the recusal as untimely, and this case will proceed
            to trial on September 20th. 2010.

            According to its certificate of service, VEI then filed and served a second motion to recuse

(“Second Recusal Motion”) on September 9. 2010. The Second Recusal Motion is file-marked

September 13, 2010. On September 20, 2010, Judge Benson denied the Second Recusal Motion as

follows:

            TI-IF COURT:        The continuation of the trial in this case was set for today.
                                   .   .   .




            which is September 20th. Your second motion to recuse was not filed until
            September 1 3th. which was less than 1 0 clays before the trial setting. 1-lowever. I
            believe it was untimely to begin with because it was not filed 1 0 days before the
            initial trial date.

            [COUNSEL FOR VEIl: So you’re overruling the second motion for recusal?

            THE COURT: The second motion for recusal is untimely.

            Subsequently, Judge Benson entered a final judgment in favor of holland. On October 4,

2010. VEI filed its request for findings of fact and conclusions of law.
                                                                    2 VE1 then filed its notice

of past due findings of fact and conclusions of law on October 28. 2010. VEI has represented to

this Court that Judge Benson has failed to file findings of fact and conclusions of law in the


   2
       The certificate of service on the request is dated September 30. 2010
underlying matter. and we do not find any in the record before us.

                                               Analysis

        In its first issue, VEI alleges the County Court at Law No. 1. with Judge Benson presiding.

erred in failing to either recuse herself, or to refer its motion to recuse filed on August 30, 2010. If

a motion to recuse is denied as here, it may be reviewed for abuse of discretion on appeal from the

final judgment. TEx. R. Civ. P. l8a(f.

        The version of Rule 1 8a in effect at the time of filing the First Recusal Motion provided, in

pertinent part, as follows:

        (a) At least ten days before the date set for trial any party may file with the clerk
        of the court a motion stating grounds why the judge before whom the case is pending
        should not sit in the case.



       (c) Prior to any further proceedings in the case, the judge shall either recuse himself
       or request the presiding judge of the administrative judicial district to assign ajudge
       to hear such motion.



       (d) lithe judge declines to recuse himself, he shall forward to the presiding judge of
       the administrative judicial district, in either original form or certified copy, an order
       of referral, the motion, and all opposing and concurring statements.


TEx. R. Civ. P. 18a. Thus, in the event a recusal motion is filed, a trial judge must promptly enter

one of the two orders which are permitted: recusal or referral. See Id.; Bourgeois v. Collier, 959

S.W.2d 241. 246 (Tex. App.—Dallas 1997. no writ); Lainberti v. Ts’choepe. 776 S.W.2d 651, 652

(Tex. App—Dallas 1989, writ denied); Greenberg, Benson, Fisk & Fielder v. Howell, 685 S.W.2d

694, 695 (Tex. App.—Dallas 1984, no writ). Instead of recusing herself or referring the motion as

required by rule 1 8a. Judge Benson denied the First Recusal Motion as untimely. However, we have




                                                 —3—
already held that, regardless of the procedura1 sufficiency” of the motion, the trial judge has the

option only to act in one ol two specified ways: recuse herself or refer the case to the presiding judge.

See Bourgeois, 959 S.W.2d at 246; Lamberti, 776 S.W.2d at 652; Greenberg, 685 S.W.2d at 695.

By pursuing an option unavailable through any rule or statute, the trial court abused its discretion

as a matter ollaw. Lamberli, 776 S.W.2d at 652: Grecnheig. 685 S.W.2d at 695.

        We. therefore. conclude: (1) Judge Benson was not authorized to rule on the First Recusal

Motion, and (2) Judge Benson was required to comply with the mandates of rule I 8a and, after the

First Recusal Motion was filed, was not authorized to take any action except for those actions

specifically authorized by rule I 8a. See Bourgeois. 959 S.W.2d at 246. Accordingly. the denial of

the First Recusal Motion is vacated. Because we have determined Judge Benson was without power

to continue to hear this case, any orders or judgment made subsequent to the denial of the First

Recusal Motion are void. See Lamberti, 776 S.W.2d at 652.

       We sustain VET’s first issue and reverse and remand the case to the trial court for proceedings

consistent with this opinion.




                                                        DAVID L. BRIDGES
                                                        JUSTICE

101 592F.P05
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                        fiftI! iitrirt uf Itxai at a11a
                                        JUDGMENT
VICTOR ENTERPRISES. iNC.. Appellant                  Appeal from the County Court at Law No. I
                                                     of’ Dallas County, Texas. (Tr.Ct.No. CC-09-
No. 05-10-01592-CV            V                      07625-A).
                                                     Opinion delivered by Justice Bridges,
CLIFFORD HOLLAND, Appellee                           Justices Richter and Lang.


        In accordance with this Court’s opinion of this date, all orders made subsequent to, and
including, the denial of the First Recusal Motion are vacated as void and the judgment of the trial
court is REVERSED and this cause is RENIANI)EI) to the trial court I’or proceedings consistent
with this Court’s opinion. It is ORDERFI) that appellant ictor Enterprises. Inc. recover its
costs of this appeal from appellee Clifford 1-lolland.


Judgment entered January 29. 201 3.


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                                                     [)AV1D L. BR1I)G
                                                     JUSTICE
