      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-10-00689-CV



                                    In re R. Lowell Thompson


                      ORIGINAL PROCEEDING FROM TRAVIS COUNTY



                                            OPINION


                Relator R. Lowell Thompson, acting in his official capacity as the district attorney

of Navarro County, Texas, filed a motion to recuse Respondent, the Honorable Charlie Baird, Judge

of the 299th District Court of Travis County, Texas, in a proceeding styled In re: Cameron Todd

Willingham and given Cause No. D-1-DC-10-100069. Judge Baird declined to rule on the motion,

concluding that Thompson lacked standing to file a motion to recuse because he was not a party to

the proceeding. In this original proceeding before this Court, Thompson seeks a writ of mandamus

to compel Judge Baird to follow the recusal procedure outlined in Texas Rule of Civil Procedure 18a

by either recusing himself or referring the motion to the presiding judge of the administrative judicial

district. We will conditionally grant the writ.


                      FACTUAL AND PROCEDURAL BACKGROUND

                Real Parties in Interest Eugenia Willingham and Patricia Willingham Cox (“the

Relatives”) are some of the surviving relatives of Cameron Todd Willingham, a Navarro County man

convicted of murder in 1992 and executed by the State in 2004. Asserting that Willingham was
innocent of the crime for which he was convicted and that “officials of the State committed the

offense of official oppression” by, among other things, “endeavoring to prevent the truth from

emerging following [Willingham’s] execution,” the Relatives filed a petition requesting that the

trial court


        convene a Court of Inquiry, pursuant to Texas Code of Criminal Procedure Article
        52.01(a), to investigate whether offenses against the laws of Texas have been
        committed, and issue a declaration that Mr. Willingham was wrongfully convicted
        and that otherwise repairs the injury done to his reputation, as provided by Article 1,
        Section 13 of the Texas Constitution and Section 71.021(a) of the Texas Civil
        Practice and Remedies Code.


See generally Tex. Code Crim. Proc. Ann. art. 52.01-.09 (West 2006) (describing Court-of-Inquiry

procedure).

               Thompson, the current district attorney of the county that prosecuted Willingham,

filed a motion to recuse Judge Baird, asserting that he was biased. In response, the Relatives argued

that Thompson lacked standing to bring a recusal motion because the Court-of-Inquiry proceeding

that their petition invoked was “ex parte,”1 and, consequently, that Thompson was not a “party” as

required by Rule 18a. See Tex. R. Civ. P. 18a(a) (“[A]ny party may file . . . a motion stating grounds

why the judge . . . should not sit.” (Emphasis added.)). After considering arguments from Thompson

and the Relatives, Judge Baird concluded that Thompson was not a party and thus lacked standing

to file a motion to recuse. In light of that conclusion, Judge Baird declined to rule on the merits of




        1
         Ex parte is defined as: “Done or made at the instance and for the benefit of one party only,
and without notice to, or argument by, any person adversely interested.” Black’s Law Dictionary
657 (9th ed. 2009).

                                                  2
the motion and immediately proceeded to commence an evidentiary hearing. The exact nature of that

evidentiary hearing is not clear, but the Relatives describe it to this Court as a pre-Court-of-Inquiry

proceeding being conducted for the purpose of gathering facts to determine whether Judge Baird

would issue an affidavit requesting the commencement of a Court of Inquiry.2 See Tex. Code Crim.

Proc. Ann. art. 52.01(a) (requiring judge to make affidavit evidencing probable cause that “an

offense has been committed” before requesting that presiding judge of administrative judicial district

appoint different district judge to commence Court of Inquiry). Thompson filed a petition for writ

of mandamus and emergency motion for stay in this Court seeking to compel Judge Baird to rule on

the recusal motion and otherwise comply with the requirements of Rule 18a. See Tex. R. Civ. P. 18a

(requiring that, on filing of motion to recuse, judge must take no further action in case and either

(1) recuse himself, or (2) forward motion to presiding judge of administrative judicial district for

hearing). We temporarily stayed the proceedings below pending our decision here.


                                           DISCUSSION

Mandamus Jurisdiction

               As a threshold issue, the Relatives argue that we lack jurisdiction to issue a writ of

mandamus because, they assert, Judge Baird “is not acting in his capacity as a judge of a district

court, but rather in his capacity as a magistrate.” Section 22.221 of the government code defines and

limits our mandamus jurisdiction. It provides, in pertinent part:




       2
         In light of our analysis below, we need not decide whether such a procedure would be
proper under Texas law.

                                                  3
       (b)     Each court of appeals for a court of appeals district may issue all writs of
               mandamus, agreeable to the principles of law regulating those writs, against
               a:

               (1)     judge of a district or county court in the court of appeals district; or

               (2)     judge of a district court who is acting as a magistrate at a court of
                       inquiry under Chapter 52, Code of Criminal Procedure, in the court
                       of appeals district.


Tex. Gov’t Code Ann. § 22.221(b) (West 2004). The Relatives argue that


       although section 22.221(b)(2) authorizes the Court to exercise mandamus jurisdiction
       against a judge acting as a magistrate, that mandamus jurisdiction is explicitly limited
       to a judge acting as a magistrate “at a court of inquiry.” Here, no court of inquiry has
       been convened . . . .


The Relatives argue that article 52.01(a) of the code of criminal procedure contemplates a two-step

procedure in Court-of-Inquiry proceedings. See Tex. Code Crim. Proc. Ann. art. 52.01. They assert

that the proceedings below were merely part of the first step, in which Judge Baird was acting as a

magistrate in a proceeding that was not itself a “Court of Inquiry” as that term is defined by the code

of criminal procedure and used in subsection 22.221(b)(2) of the government code. Accordingly,

they contend that section 22.221(b) of the government code does not authorize this Court to issue

a writ of mandamus in the present circumstances because Judge Baird was neither acting in his

capacity as a district judge nor acting as a magistrate at a Court of Inquiry.

               We need not decide whether the Relatives are correct in asserting that the

proceedings below, as they depict them, are not a “Court of Inquiry,” because the record establishes

our mandamus authority over the case pursuant to subsection 22.221(b)(1), without regard to



                                                  4
subsection (b)(2). The Relatives’ original petition, labeled “Petition to Convene a Court of Inquiry

and for a Declaration to Remedy Injury to Mr. Willingham’s Reputation Under the Texas

Constitution,” asked for the following specific relief:


        A.      Find, pursuant to Texas Code of Criminal Procedure Article 52.01(a), that
                there is probable cause to believe that offenses against the laws of Texas have
                been committed;

        B.      Enter into the minutes of the Court, pursuant to Article 52.01(b)(1), a sworn
                affidavit stating the substantial facts establishing probable cause that one or
                more offenses against the laws of Texas were committed;

        C.      File, pursuant to Article 52.01(b)(2), a copy of the affidavit with the
                District Clerk;

        D.      Declare that Mr. Willingham was wrongfully convicted, and that all legal
                disabilities attaching to him or his survivors as a result of that conviction are
                forever removed;

        E.      Request, pursuant to Article 52.01(b)(2), the Presiding Judge of the
                Administrative Judicial District to appoint a judge to commence a Court of
                Inquiry to investigate these matters further . . . .


                Thus, the petition sought two different forms of relief. Under subparagraphs A, B,

C, and E, the Relatives sought to initiate the process set forth in article 52.01. In subparagraph D,

however, the Relatives sought a declaration that “Mr. Willingham was wrongfully convicted.” This

second type of request is in the nature of a declaratory-judgment claim, which is necessarily

addressed to the court in its judicial, rather than magisterial, capacity. In other words, the claim

sought relief that Judge Baird could only have granted while acting in his capacity as a district judge,

not while acting in his capacity as a magistrate. Thompson’s motion to recuse sought to have

Judge Baird recuse himself from the entire case, which necessarily included the request for

                                                   5
declaratory relief. Accordingly, the Relatives’ prayer for declaratory relief brings this case within

our mandamus jurisdiction over a judge of a district court in our appellate district. See Tex. Gov’t

Code Ann. § 22.221(b)(1); see also Tex. Civ. Prac. & Rem. Code Ann. §§ 37.001-.011 (West 2008)

(declaratory-judgment statute). We disagree with the Relatives’ attempt to characterize their request

for declaratory relief as part of or incident to a Court-of-Inquiry proceeding, because such relief is

not available from a Court of Inquiry. See Tex. Code Crim. Proc. Ann. arts. 52.01, .08 (sole end of

Court of Inquiry is to determine whether “an offense has been committed” and, if so, to “issue a

warrant for the arrest of the offender as if complaint had been made and filed”). Accordingly,

we conclude that we have jurisdiction to issue a writ of mandamus in the present case under

subsection 22.221(b)(1) of the government code. We now turn to the question of whether mandamus

relief is warranted under the present circumstances.


Thompson’s Party Status Under Rule 18a

               The Relatives argue that Thompson is not a party to the case below and thus does

not have “standing” under Rule 18a to file a motion to recuse. Rule 18a states in pertinent part:


       At least ten days before the date set for trial or other hearing in any court other
       than the Supreme Court, the Court of Criminal Appeals or the court of appeals,
       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.


Tex. R. Civ. P. 18a(a) (emphasis added). Thompson argues that he is, or should be deemed, a party

because Judge Baird invited him to participate in the proceedings and because the State has a

justiciable interest in the case sufficient to establish standing. The Relatives respond that Thompson



                                                  6
“is not a party to the proceeding before [Judge Baird], which is an ex parte, non-adversarial,

preliminary hearing to determine whether there is probable cause to convene a court-of-inquiry.”

               As discussed above, we find the Relatives’ “ex-parte” argument unconvincing in light

of their request for declaratory relief from the trial court. Any authority the trial court would have

to grant declaratory relief would stem from the Uniform Declaratory Judgments Act, see Tex. Civ.

Prac. & Rem. Code Ann. §§ 37.001-.011, which does not contemplate ex parte proceedings. To the

contrary, the Act requires that all interested persons must be made parties and states that a

declaration does not prejudice the rights of a non-party:


       When declaratory relief is sought, all persons who have or claim any interest that
       would be affected by the declaration must be made parties. A declaration does not
       prejudice the rights of a person not a party to the proceeding.


Tex. Civ. Prac. & Rem. Code Ann. § 37.006.

               The State of Texas prosecuted Willingham and obtained a judgment of conviction

against him. The Relatives seek a judicial declaration that would be inconsistent with that judgment.

It goes without saying that the State has an “interest that would be affected” by such a declaration.

Thompson, the district attorney of the county that prosecuted Willingham on behalf of the State, is

a logical person to represent the State’s interest in that inquiry. Accordingly, we hold that

Thompson, on behalf of the State, has met the “party” requirement of Rule 18a.




                                                  7
Is Mandamus Relief Available?

               The Relatives argue that mandamus relief is not available here because Thompson

has an adequate remedy by appeal. Mandamus is available when there is (1) a clear abuse of

discretion by the trial court, and (2) no adequate remedy by appeal. In re Prudential Ins. Co. of Am.,

148 S.W.3d 124, 135-36 (Tex. 2004).

               A trial court abuses its discretion when it reaches a decision so arbitrary or

unreasonable as to amount to a clear and prejudicial error of law. BMC Software Belg., N.V.

v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002). When it comes to deciding what law applies—even

if that law is unsettled—or in applying that law to the facts of the case, the trial court has no

discretion. In re Prudential, 148 S.W.3d at 135.

               “An appellate remedy is ‘adequate’ when any benefits to mandamus review are

outweighed by the detriments.” Id. Thus, the word “adequate” is really a proxy for the careful

balancing test appellate courts apply in determining whether the benefits outweigh the detriments.

Id. This test considers “both public and private interests.” Id. In general, we avoid mandamus

review of “incidental, interlocutory rulings” because such review is often unproductive, expensive,

and distracts courts from important issues in the disposition of the case and the uniform development

of the law. Id. But we employ mandamus review of important or novel situations in exceptional

cases because such review may preserve a party’s substantial rights from impairment, allow the

appellate court to give “needed and helpful direction to the law that would otherwise prove elusive

in appeals from finals judgments,” and reduce the waste of time and money resulting from the

eventual reversal of improperly conducted proceedings.          Id.   We remain mindful that our



                                                  8
contemplation of whether there is an adequate remedy on appeal “is not an abstract or formulaic one;

it is practical and prudential.” Id.


        (i) Abuse of Discretion

                   Rule 18a imposes certain mandatory requirements on a judge once a motion to

recuse is filed:


        (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 a judge to hear such motion. If the judge recuses himself, he shall
                   enter an order of recusal and request the presiding judge of the administrative
                   judicial district to assign another judge to sit, and shall make no further orders
                   and shall take no further action in the case except for good cause stated in the
                   order in which such action is taken.

        (d)        If the 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.
                   Except for good cause stated in the order in which further action is taken, the
                   judge shall make no further orders and shall take no further action in the case
                   after filing of the motion and prior to a hearing on the motion. The presiding
                   judge of the administrative judicial district shall immediately set a hearing
                   before himself or some other judge designated by him, shall cause notice of
                   such hearing to be given to all parties or their counsel, and shall make such
                   other orders including orders on interim or ancillary relief in the pending
                   cause as justice may require.


Tex. R. Civ. P. 18a; see also Tex. Gov’t Code Ann. § 74.059(c)(3) (West 2005) (judge must “request

the presiding judge to assign another judge to hear a motion relating to the recusal of the judge from

a case pending in his court”).

                   Other courts of appeals have concluded that Rule 18a’s recusal-or-referral

requirement is mandatory and that mandamus relief is appropriate to compel compliance with the

                                                       9
rule. See, e.g., In re Kiefer, No. 05-10-00452-CV, 2010 WL 2220588, at *1-2 (Tex. App.—Dallas

June 4, 2010, orig. proceeding) (mem. op.) (recusal or referral “mandatory”); In re Norman,

191 S.W.3d 858, 860 (Tex. App.—Houston [14th Dist.] 2006, orig. proceeding) (Rule 18a states that

judge has “mandatory duty either to recuse himself or refer the motion to the presiding judge”);

In re Healthmark Partners, L.L.C., No. 14-04-00743-CV, 2004 WL 1899953, at *1 (Tex.

App.—Houston [14th Dist.] Aug. 26, 2004, orig. proceeding) (mem. op) (same); In re Rio Grande

Valley Gas Co., 987 S.W.2d 167, 179-80 (Tex. App.—Corpus Christi 1999, orig. proceeding)

(same); see also Arnold v. State, 853 S.W.3d 543, 544 (Tex. Crim. App. 1993) (rule 18a applies in

criminal cases); see also Ex parte Sinegar, No. AP-76340, 2010 WL 4320399, at *2-3 (Tex. Crim.

App. Nov. 3, 2010) (rule 18a also applies in habeas proceedings). Likewise, construing a

substantially similar statutory predecessor to Rule 18a, the Texas Supreme Court has held that (1) a

judge has “the mandatory duty” to recuse himself or refer the matter to the presiding judge to hear

a properly filed motion to recuse, and (2) mandamus relief is proper to compel compliance. See

McLeod v. Harris, 582 S.W.2d 772, 775 (Tex. 1979). We agree that the provisions of Rule 18a are

mandatory; they cannot be reasonably read otherwise. Consequently, Judge Baird abused his

discretion by failing to either recuse himself or refer the motion to the presiding judge of the

administrative judicial district. See In re Prudential, 148 S.W.3d at 135 (judge has no discretion in

applying facts to law).

       (ii) Adequate Remedy by Appeal

               Having concluded that Judge Baird abused his discretion, we must determine if

Thompson has an adequate remedy by appeal. The “[d]enial of a motion to recuse is appealable



                                                 10
upon final judgment. Thus, a relator challenging the denial of a recusal motion ordinarily has an

adequate remedy by appeal of the denial of a motion to recuse.” In re Norman, 191 S.W.3d at 860;

see also Tex. R. Civ. P. 18a(f) (providing that denial of motion is appealable from final judgment).

Here, however, the trial judge has not denied the motion to recuse, but has refused to rule on it. As

noted above, in such circumstances, courts have concluded that no adequate remedy by appeal exists

and have granted mandamus relief. See McLeod, 582 S.W.2d at 775; In re Norman, 191 S.W.3d at

860 (“[The trial judge] had a mandatory duty either to recuse himself or refer the motion to the

presiding judge . . . . We conditionally grant the petition for writ of mandamus.”); In re Healthmark

Partners, L.L.C., 2004 WL 1899953, at *2 (“In the circumstances of this case, [the trial judge] had

only two options, recusal or referral. Because she took neither, we grant . . . the petition for writ

of mandamus.”).

               We agree that, under the circumstances presented here, Thompson has no adequate

remedy by appeal. First, this is a novel and important case with wide public interest, which provides

an opportunity for this Court to give “needed and helpful direction to the law that would otherwise

prove elusive.” In re Prudential, 148 S.W.3d at 136. Second, the parties’ right to an impartial judge

is at risk by the judge’s failure to consider and rule on the motion to recuse. Id. Although we

acknowledge that the rule’s provision for appeal after the denial of a motion to recuse may provide

an adequate remedy in that situation, that remedy is inadequate, where, as here, a judge refuses to

rule. Allowing a judge accused of bias to improperly decline to refer the matter to a neutral judge

and to conduct potentially biased proceedings injects an unacceptable risk of actual bias

and—importantly for interests of the judicial system at large—the potential appearance of bias. See



                                                 11
Aetna Life Ins. v. Lavoie, 475 U.S. 813, 825 (1986) (“[T]o perform its high function in the best way,

justice must satisfy the appearance of justice.” (Internal quotation marks omitted.)). Waiting until

final judgment to appeal the judge’s failure to rule on a recusal motion—if such an appeal is even

available—would not be an adequate remedy because it could not sufficiently correct the perception

of bias engendered by the judge’s failure to allow the merits of the recusal motion to be timely

addressed by a neutral judge. Third, granting mandamus relief here will not cause appreciable delay

or cost to the parties or the judicial system, while mitigating the risk of harm caused by the

appearance of bias. See In re Prudential, 148 S.W.3d at 136.


The Relatives’ Arguments Regarding the Merits of the Motion to Recuse

               Finally, the Relatives assert that the grounds of Thompson’s motion to recuse lack

merit. Thus, they invite us to consider the merits of the motion and, based on that review, refrain

from exercising our discretionary mandamus authority. Reviewing the merits of the motion to

recuse, however, is beyond the limited scope of our inquiry here. See In re Healthmark Partners,

L.L.C., 2004 WL 1899953, at *2 n.3. Moreover, contrary to the Relatives’ arguments, failure to

review the merits will not cause unremediable delay or hardship to the Relatives should the merits

prove groundless, because Rule 18a(h) allows the judge assigned to hear the recusal motion to issue

sanctions if he concludes that the motion was brought for delay and without sufficient cause.

See Tex. R. Civ. P. 18a(h).

                                         CONCLUSION

               We hold that, upon the filing of Thompson’s motion to recuse, Judge Baird was

required to either recuse himself or refer the motion to the presiding judge of the administrative

                                                 12
judicial district and that he abused his discretion by failing to do so. Concluding that mandamus

relief is authorized and warranted, we conditionally grant Thompson’s petition. The writ will issue

only if the trial court fails to comply with this opinion. The stay of proceedings issued by this Court

on October 14, 2010 will remain in effect until Judge Baird complies with this opinion.




                                               J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Puryear and Pemberton;
  Dissenting Opinion by Justice Puryear

Filed: December 21, 2010




                                                  13
