Milton Fagin v. Duke-Keller Outdoor Advertising, Inc. ( 1999 )

No. 04-97-01020-CV

Milton FAGIN, Appellant

v.

DUKE-KELLER OUTDOOR ADVERTISING, INC., Appellee

From County Court at Law No. 7, Bexar County, Texas Trial Court No. 227,669 Honorable Timothy F. Johnson, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Tom Rickhoff, Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: July 30, 1999

REVERSED AND REMANDED

This appeal arises from a turnover order. Because the trial court erred in finding that a motion to recuse was untimely filed, we reverse and remand.

In July 1997, the trial court rendered judgment in favor of the appellee, Duke-Keller Outdoor Advertising, Inc., against the appellant, Milton Fagin. In August, Duke-Keller filed an application for turnover relief and appointment of receiver. On December 1, the trial court held a hearing on the application, and the parties agreed to provide the court with an order. On December 3, Fagin became the political opponent of the trial court.

As of December 8, the trial court had not received the agreed order, and it set an additional hearing for December 10. The following day, Fagin filed a motion to recuse based on his candidacy for judge. At the hearing on December 10, the trial court found the motion to recuse untimely and orally granted the requested turnover relief. On December 18, the trial court signed an order granting turnover relief and appointing a receiver. Fagin appealed.

In his second point of error, Fagin contends the trial court erred by denying his motion to recuse. We agree in part.

Rule 18a(a) requires a motion to recuse to be filed "[a]t least ten days before the date set for trial or other hearing." Tex. R. Civ. P. 18a(a); Petitt v. Laware, 715 S.W.2d 688, 692 (Tex. App.--Houston [1st Dist.] 1986, writ ref'd n.r.e.). This time limit, however, does not apply if the movant does not receive ten days notice of the hearing from which he seeks to recuse the judge. Metzger v. Sebek, 892 S.W.2d 20, 49 (Tex. App.--Houston [1st Dist.] 1994, writ denied); see also Kirby v. Chapman, 917 S.W.2d 902, 910 (Tex. App.--Fort Worth 1996, no writ). If the motion to recuse is timely filed, the judge has only two options: either recuse himself or refer the motion to the presiding judge of the administrative judicial district. Brousseau v. Ranzau, 911 S.W.2d 890, 892 (Tex. App.--Beaumont 1995, no writ). If the judge takes any action other than an order of recusal or referral, the action is void. Crawford v. State, 807 S.W.2d 597, 598 (Tex. App.--Dallas 1991, no writ).

In this case, Fagin received two days notice of the hearing, and he filed his motion to recuse one day before the hearing. Because Fagin's motion to recuse was timely, the trial court should have either recused himself or referred the motion to the presiding judge of the administrative judicial district. See Tex. R. Civ. P. 18a(c); Metzger, 892 S.W.2d at 49. Because the court did neither, its order granting turnover relief is void. Accordingly, we sustain Fagin's second point of error.⁽¹⁾

In light of our holding, we decline to address Fagin's remaining points of error. We reverse the turnover order and remand the cause to the trial court for proceedings consistent with this opinion.

PAUL W. GREEN

JUSTICE

DO NOT PUBLISH

1. Our holding should not be construed as condoning Fagin's attack on the integrity of the trial court. See In re Maloney, 949 S.W.2d 385 (Tex. App.--San Antonio 1997, orig. proceeding).