Rose L. McCullough v. Devon Energy Production, Company, LP ( 2008 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-08-00005-CV

Rose L. McCullough,

                                                                                    Appellant

 v.

Devon Energy Production Company, LP,

                                                                                    Appellee

From the 413th District Court

Johnson County, Texas

Trial Court No. C2007000683

ORDER

            Before the Court is Appellant Rose McCullough’s “Motion for Disqualification and/or Recusal of Rex D. Davis,[1] Bill Vance, and Tom Gray as Judges in this Cause.”[2]

            Disqualification and recusal of appellate judges is controlled by Rule 16 of the appellate rules.  Tex. R. App. P. 16.  A motion to disqualify may be raised at any time.  McCullough v. Kitzman, 50 S.W.3d 87, 88 (Tex. App.—Waco 2001, order).  Grounds for disqualification are set forth in the Constitution.  Tex. Const. art. V, § 11; see generally In re Union Pac. Res. Co., 969 S.W.2d 427 (Tex. 1998) (citing Kilgarlin & Bruch, Disqualification and Recusal of Judges, 17 St. Mary’s L.J. 599 (1986)).  Texas Rule of Civil Procedure 18b also lists the instances in which a justice is disqualified to hear a matter.  Tex. R. Civ. P. 18b(1).  The appellate rules do not currently provide a procedure for filing a motion for disqualification, so we have followed the recusal procedure to address the disqualification motion.  Tex. R. App. P. 16.3; McCullough, 50 S.W.3d at 88.

            We have also utilized the procedure set forth in the rule to address the merits of the motion to recuse.  Tex. R. App. P. 16.  Rule 18b lists the reasons why a justice should recuse himself or herself in a pending matter.  Tex. R. Civ. P. 18b(2).

            Under Rule 16.3, after receipt of the motions and prior to any further proceeding in this case, Chief Justice Gray and Justice Vance both considered the motion in chambers.  Tex. R. App. P. 16.3(b).  Neither of them found a reason to disqualify or recuse himself and, under Rule 16.3(b), certified the issue to the panel assigned to this case.  Id.; McCullough, 50 S.W.3d at 88.  The panel then decided each motion with respect to the challenged justice by a vote of the remaining members.[3] See id.  No challenged justice sat with the remainder of the panel when his challenge was considered.  See Tex. R. App. P. 16.3; McCullough, 50 S.W.3d at 88.

            In each instance, the other members of the panel found that the justice under consideration is not disqualified under article V, section 11 of the Texas Constitution, i.e., does not have an interest in the subject matter of the controversy, is not related to a party by affinity or consanguinity within the third degree, and has not been counsel in the case.  Tex. Const. art. V, § 11; Tex. R. App. P. 16.1; Tex. R. Civ. P. 18b(1).  Therefore, the motion to disqualify is denied with respect to each justice.

            The determination of whether recusal is necessary must be made on a case‑by‑case, fact‑intensive basis.  McCullough, 50 S.W.3d at 89.  In each instance, the remaining members of the panel found the motion without merit and found no reason to recuse the justice under consideration.  Tex. R. App. P. 16.2, 16.3(b); Tex. R. Civ. P. 18b(2).  Therefore, the motion to recuse is denied with respect to each justice.

                                                                                                PER CURIAM

Before Chief Justice Gray,

            Justice Vance, and

            Justice Reyna

            (Chief Justice Gray not participating)

Motion denied

Order issued and filed June 18, 2008

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[1]               Rex D. Davis is not a justice of this Court.  Thus, we disregard that portion of McCullough’s motion purportedly seeking to recuse Davis.

[2] Although McCullough has failed to provide proper proof of service despite being directed to do so by notice from the Clerk of this Court, we will suspend the service requirement and address McCullough’s motion so that we can proceed to a determination of the merits of the appeal.  See Tex. R. App. P. 2 (“on its own initiative an appellate court may—to expedite a decision or for other good cause—suspend a rule’s operation in a particular case”).

[3]               Chief Justice Gray declined to vote on the motion with respect to Justice Vance.

60;   Parker contends that he cannot afford even the reduced bail, has no criminal record, has ties to the community, and is not a flight risk. Although testimony was presented concerning his ability to make bail, the trial court’s findings, which were supported by the record, were contrary to Parker’s remaining contentions. Parker is accused of the first degree felony offense of aggravated sexual assault. Tex. Pen. Code Ann. §22.021 (Vernon Supp. 2000). The alleged victim is 13 years of age while Parker is 19 years of age. Parker fled to Louisiana when he became aware of the allegations against him and after he agreed to take a polygraph examination. Parker’s mother declined to help investigators locate him. He has a DWI charge pending against him and a juvenile history in Louisiana. He has family and job prospects in Louisiana. His mother and step-grandmother have only lived in Navarro County, Texas, for less than one year. There is no evidence in the record of how long Parker has resided in Navarro County.

      The trial court concluded that the nature of the offense, the possible consequences of a conviction, and Parker’s history of absenting himself from the State and avoiding contact with investigators required a substantial bail amount. The trial court also concluded that bail in the amount of $50,000 was not unreasonable under the circumstances.

  Conclusion

      After considering the record and the necessary factors, the trial court did not abuse its discretion in refusing to reduce Parker’s bail to $15,000 as he requested. The order of the trial court is affirmed.

                                                                         TOM GRAY

                                                                         Justice

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

      (Chief Justice Davis concurring and Justice Vance dissenting)

Affirmed

Opinion delivered and filed August 9, 2000

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