William Bruce Hollabaugh v. State

Hollabaugh v. State

 

IN THE

TENTH COURT OF APPEALS

No. 10-93-269-CR

     WILLIAM BRUCE HOLLABAUGH,

                                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                                              Appellee

From the 40th District Court

Ellis County, Texas

Trial Court # 16989

                                                                                                    

O P I N I O N

                                                                                                    

      On August 22, 1989, a jury found William Hollabaugh guilty of bribery and assessed punishment at three years probation and a $700 probated fine. On August 24, 1993, Hollabaugh filed a motion to recuse Judge Gene Knize along with a letter to the Senior District Judge requesting the appointment of a visiting judge to "approve an Order Discharging Defendant from Probation." The motion to recuse was heard and denied by visiting Judge Kenneth Douglas, who was assigned to hear the motion.

      All of Hollabaugh's points relate to the denial of the recusal motion. The recusal of judges in criminal cases is governed by Rule 18a of the Texas Rule of Civil Procedure. DeBlanc v. State, 799 S.W.2d 701, 705 (Tex. Crim. App. 1990); McDuffie v. State, 854 S.W.2d 195, 201 (Tex. App.—Beaumont 1993, no pet.). Rule 18a provides that the motion "shall be verified and must state with particularity the grounds why the judge before whom the case is pending should not sit." Tex. R. Civ. P. 18a(a). The language of the rule makes the verification mandatory. Id. The standard of review on the denial of a recusal motion is an abuse of discretion. Id. 18a(f).

      Hollabaugh did not verify his motion to recuse; therefore, Judge Douglas did not abuse his discretion when he denied the unverified motion. Accordingly, we overrule all points of error. However, even if we considered the motion on the merits, upon examination of the record, we fail to find any abuse of discretion.

      In his first point, Hollabaugh contends that Judge Douglas did not have the authority to hear the recusal motion because Judge Douglas did not have an oath of office on file. That complaint was never raised in the trial court. Moreover, the record does not reflect that Judge Douglas did not have the requisite oath. We overrule the first point.

      Hollabaugh argues in his second point that the evidence is "sufficient to support his motion of recusal on the grounds of prejudice." As previously noted, the standard for reviewing the denial of a motion to recuse is abuse of discretion. Id. The record does not reflect an abuse of discretion. We overrule point two.

      Rule 18b(2)(e) provides that a judge is recused if "he knows that he, individually or as a fiduciary . . . has a financial interest in the subject matter in controversy . . . or any other interest that could be substantially affected by the outcome of the proceeding." Id. 18b(2)(e). In his third point, Hollabaugh is apparently arguing that Judge Knize should be recused because he has a "fiduciary/financial interest" in a civil suit Hollabaugh filed against Ellis County concerning the Constable's salary. Evidently, the suit is still pending. As best we can determine, Hollabaugh is contending that Judge Knize, as district judge in Ellis County, has a fiduciary or financial interest in the civil suit by virtue of the district court's general supervisory control over the commissioners' court. See Tex. Const. art. V, §18(b). However, Judge Douglas apparently found that the relationship between the District Court and the Commissioners Court was too remote to support any contention of interest by the district judge in a suit against the Commissioners Court. We find no abuse of discretion and overrule the third point.

       We affirm the judgment.

 

                                                                                 BOB L. THOMAS

                                                                                 Chief Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Affirmed

Opinion delivered and filed April 20, 1994

Do not publish

ily:"Palatino","serif"'>   Therefore, we abate this appeal to the trial court for a hearing to determine:

(1)  why Currie has failed to file the reporter’s records for these appeals;

 

(2)  Currie’s current contact information, so the Clerk of this Court will have an address and a telephone number by which she can communicate with Currie;

 

(3)  a date certain[3] within a reasonable period of time when the reporter’s record will be filed in each appeal; and

 

(4)  whether any sanctions should be imposed on Currie.

 

            The trial court shall: (1) conduct the hearing within twenty-one (21) days after the date of this Order; (2) prepare any necessary findings of fact and conclusions of law; and (3) sign a written order consistent with the requirements of this Order.

            The district clerk shall file a supplemental clerk’s record containing a copy of (1) the trial court’s findings of fact and conclusions of law and (2) the trial court’s order with the Clerk of this Court within thirty-five (35) days after the date of this Order.

            Unless the parties waive the making of a reporter’s record in the abatement hearing, the trial court’s current official court reporter is ordered to prepare and file a supplemental reporter’s record of the abatement hearing with the Clerk of this Court within thirty-five (35) days after the date of this Order.

                                                                                                PER CURIAM

 

           

Before Chief Justice Gray,

            Justice Reyna, and

            Justice Davis

Order issued and filed June 2, 2010

Do not publish        

 

 

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[1]               The Clerk mailed this notice to Currie by regular mail and by certified mail, return receipt requested.  Currie failed to claim the letter sent to her by certified mail.

[2]               These are the only reporters’ records which Currie is presently responsible for filing in this Court.

 

[3]               These dates should be set sequentially so that the oldest record (Cooks) is filed first.