tommy-leon-jones-v-brazos-county-sheriffs-department-sargeant-wright ( 2012 )

IN THE
TENTH COURT OF APPEALS
No. 10-11-00273-CV
TOMMY LEON JONES,
Appellant
v.
BRAZOS COUNTY SHERIFF'S DEPARTMENT,
SARGEANT WRIGHT, SERGEANT CURRIE,
SARGEANT MITCHELL, OFFICER PRESTWOOD,
AND DR. FRANCES CHERIYAN,
Appellees
From the 85th District Court
Brazos County, Texas
Trial Court No. 11-001243-CV-85
MEMORANDUM OPINION
Tommy Leon Jones, a prison inmate, appeals the trial court’s dismissal of his
civil lawsuit for failure to comply with certain requirements for indigent inmate
litigation. See TEX. CIV. PRAC. & REM. CODE ANN. Ch. 14 (West 2002 & Supp. 2011).
Because the trial court did not abuse its discretion in dismissing the suit, we affirm the
trial court’s judgment.
In the first of two issues, Jones complains that because the order of dismissal did
not indicate that his suit was dismissed without prejudice, it was dismissed with
prejudice, and the trial court abused its discretion. We review a dismissal pursuant to
Chapter 14 under an abuse-of-discretion standard. Allen v. Tex. Dep't Crim. Just., 80
S.W.3d 681, 682 (Tex. App.—Houston [1st Dist.] 2002, pet. denied); Hickson v. Moya, 926
S.W.2d 397, 398 (Tex. App.—Waco 1996, no writ).
Jones filed his suit on May 16, 2011. The trial court dismissed the suit on May 24,
2011 for failure to include an affidavit of previous filings and a certified copy of his
inmate account statement with his petition. TEX. CIV. PRAC & REM. CODE ANN. §§
14.004(b), (c); 14.006(f) (West Supp. 2011; West 2001). The trial court is allowed to do
this. Amir-Sharif v. Mason, 243 S.W.3d 854, 856-57 (Tex. App.—Dallas 2008, no pet.).
Jones’ complaint, however, is that the trial court dismissed his suit with prejudice.
There is no designation of whether the dismissal was with or without prejudice, at all,
on the trial court’s order. Accordingly, Jones’s first issue is overruled.
In his second issue, Jones contends the trial court judge should have been
disqualified. After the trial court dismissed Jones’ suit, Jones submitted a “Plaintiff’s
Motion for Fact Hearing” asserting that the trial court judge should disqualify himself
because the judge had a “vested interest” in the case. Treating this motion as a motion
for new trial on the basis of disqualification, the trial court declined to disqualify
himself and referred the issue to the Presiding Judge of the Second Administrative
Jones v. Brazos County Sheriff’s Dept. Page 2
Judicial Region for consideration and action, if appropriate. The Presiding Judge
denied Jones’ motion.
A judge may be removed from a particular case either because he is
constitutionally disqualified, subject to a statutory strike, or recused under rules
promulgated by the Texas Supreme Court. See TEX. CONST. art. V, § 11; TEX. GOV'T CODE
ANN. § 74.053(d) (West 2005); TEX. R. CIV. P. 18a, 18b; TEX. R. APP. P. 16. The grounds
and procedures for each type of removal are fundamentally different. In re Union Pacific
Res. Co., 969 S.W.2d 427, 428 (Tex. 1998). Jones argues only that the trial court judge
should have recognized that he was disqualified.
There are three Constitutional grounds for disqualification in a civil case. See
TEX. CONST. art. V, § 11; TEX. R. CIV. P. 18b(1). Jones relies upon the ground which
prohibits a judge from sitting in a case in which he may have an "interest." Id. The
interest Jones alleges is that the reason for Jones being at the Brazos County Jail, and
thus sustaining the injuries complained about in the underlying suit in this appeal, was
due to a motion to recuse filed by Jones against the same trial court judge in another
proceeding.
Jones asserts in his brief
No Judge shall sit in any case wherein the Judge may be interested,
or where either of the parties may be connected with the Judge!! This
Judge’s public admittance of his long term political and personal Friend
Christopher Kirk, Sheriff of Brazos County removes all possibilities of his
being neutral and detached in a civil proceeding whereas Appellant is
Jones v. Brazos County Sheriff’s Dept. Page 3
alleging “unauthorized use of Force” was used on him as retaliation For
stances taken against this Judge.
Jones also alleges the judge may become a party in the trial or at least a hostile witness.
The current pleading, however, asserts a claim only against the Brazos County Sheriff’s
Department and some of its employees.
For a judge to be disqualified, however, the interest he has must be a direct
pecuniary or property interest in the subject matter of the litigation. McKenna v. State,
209 S.W.3d 233, 235 (Tex. App.—Waco 2006), rev’d on other grounds, 747 S.W.3d 716 (Tex.
Crim. App. 2008); Gulf Maritime Warehouse Co. v. Towers, 858 S.W.2d 556, 558 (Tex.
App.—Beaumont 1993, writ denied). The grounds alleged by Jones do not rise to this
type of interest and do not require the trial court judge’s disqualification. Jones’ second
issue is overruled.
Having overruled each of Jones’ issues on appeal, we affirm the judgment of the
trial court.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed March 21, 2012
[CV06]
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