in Re: Heidi Amos

Writ of Mandamus Granted; Opinion Filed March 6, 2013
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-01500-CV
IN RE HEIDI AMOS, Relator
Original Proceeding from the County Criminal Court No. 5
Dallas County, Texas
Trial Court Cause No. MA10-68776-F
OPINION
Before Justices Moseley, FitzGerald, and Myers
Opinion by Justice FitzGerald
Relator Heidi Amos is the defendant in a pending criminal case. She filed a motion to
recuse the trial judge presiding over her case, a former judge was assigned to decide the motion
to recuse, and that judge granted the motion. The recused judge then filed a motion for
reconsideration, and the assigned judge signed an order purporting to grant rehearing of the
motion to recuse and to set the motion for a new hearing. By a petition for writ of mandamus
and writ of prohibition, Amos asks us to prevent the assigned judge from reconsidering her
recusal order. We conclude that Amos has a clear right to the relief sought and that she has no
adequate remedy by appeal. Accordingly, we conditionally grant the writ of mandamus.
I. FACTS
Amos filed a motion to recuse the trial judge presiding in her criminal case, the
Honorable Etta Mullin, Dallas County Criminal Court No. 5. The presiding administrative judge
assigned the motion to a former judge, the Honorable Sue Pirtle, for decision. On September
28, 2012, Judge Pirtle conducted a hearing on the motion. Counsel for Amos and the State
appeared; Amos did not appear. Counsel for Amos and counsel for the State testified at the
hearing. 1 The State presented no other evidence and had no objections to the motion. Judge
Pirtle orally found “the appearance of impropriety, the appearance of prejudice . . . sufficient” to
justify recusal, and she signed an order granting the motion to recuse that same day. On October
1, the presiding administrative judge transferred the case to a new judge, the Honorable Jeffrey
Rosenfield, Dallas County Criminal Court of Appeals No. 2.
About three weeks later, Judge Mullin filed a motion for reconsideration addressed to
Judge Pirtle. Judge Mullin argued that Judge Pirtle should reconsider and deny Amos’s motion
for recusal because Judge Mullin was a necessary party to the hearing, had not received notice of
the hearing, and therefore had no opportunity to “cross-examine [the] witnesses, nor to present
any witnesses or evidence to contravene the issues addressed.” 2 She also argued that the motion
for recusal did not establish bias or prejudice sufficient to justify recusal. On October 26, Judge
Pirtle signed an order granting Judge Mullin’s motion for reconsideration and setting the motion
to recuse for a new hearing on November 1.
Amos filed a petition for writ of mandamus or writ of prohibition in this Court on
October 30, see In re Amos, No. 05-12-01463-CV, 2012 WL 5397108 (Tex. App.—Dallas Nov.
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Counsel for the State testified in part, “I don’t think that she [Judge Mullin] can be fair and impartial in your case with Ms. Amos.”
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Judge Mullin did not categorically state that she had no prior knowledge of the hearing.
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6, 2012, orig. proceeding) (mem. op.) (denying the petition for noncompliance with the Texas
Rules of Appellate Procedure), and she filed a revised petition seeking the same relief on
November 6. Thus, in this mandamus proceeding, Amos is the relator, Judge Pirtle is the
respondent, and the State is the real party in interest. See TEX. R. APP. P. 52.2. We stayed Judge
Pirtle’s order granting rehearing pending the disposition of this original proceeding.
II. ANALYSIS
A. Criminal mandamus standards
We have concurrent mandamus jurisdiction with the Texas Court of Criminal Appeals in
criminal-law matters. Padilla v. McDaniel, 122 S.W.3d 805, 807 (Tex. Crim. App. 2003) (orig.
proceeding) (per curiam). Mandamus and prohibition are available in a criminal proceeding if
the relator shows (1) that the act she seeks to compel or prohibit does not involve a discretionary
or judicial decision and (2) that she has no adequate remedy at law to redress the harm that she
alleges will ensue. Simon v. Levario, 306 S.W.3d 318, 320 (Tex. Crim. App. 2009) (orig.
proceeding); see also In re State ex rel. Weeks, No. AP-76,953, 2013 WL 163460, at *3 (Tex.
Crim. App. Jan. 16, 2013) (orig. proceeding); De Leon v. Aguilar, 127 S.W.3d 1, 5 (Tex. Crim.
App. 2004) (orig. proceeding). The first prong requires the relator to show that she has a clear
right to the relief sought, meaning that the facts and circumstances dictate only one rational
decision under unequivocal, well-settled, and clearly controlling legal principles. Simon, 306
S.W.3d at 320. When a relator seeks extraordinary relief that amounts to the undoing of
an accomplished judicial act, that relief is more in the nature of mandamus than prohibition. Id.
at 320 n.2.
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B. Clear right to relief
1. Impropriety of the motion for reconsideration
We conclude that Judge Mullin’s motion for reconsideration was improper, and thus that
Judge Pirtle clearly erred by signing the order granting reconsideration and setting
Amos’s motion to recuse for a new hearing.
“Recuse” means both to remove oneself as a judge in a particular case and to challenge or
object to a judge as being disqualified from hearing a particular case, such as because of
prejudice. BLACK’S LAW DICTIONARY 1303 (8th ed. 2004). Texas Rule of Civil Procedure 18a,
which governs motions to recuse, applies in criminal cases. Arnold v. State, 853 S.W.2d 543,
544 (Tex. Crim. App. 1993). Under that rule, the challenged judge must either recuse or refer
the motion for another judge to decide. De Leon, 127 S.W.3d at 5. The purpose of the recuse-
or-refer rule is to preserve public confidence in the impartiality of the judiciary “by minimizing a
judge’s involvement in recusal proceedings.” Carmody v. State Farm Lloyds, 184 S.W.3d 419,
422 (Tex. App.—Dallas 2006, no pet.).
If a judge recuses himself or herself, the judge thereby voluntarily steps out of the case
for all purposes and another judge is immediately assigned to hear and dispose of the case. If a
judge refers the motion to recuse to the presiding administrative judge, the rules require the
challenged judge to step aside and another judge to be assigned to resolve the motion. Once the
challenged judge refers the motion for another judge to decide, the challenged judge must take
no further action in the case until the motion is decided, except for good cause stated in writing
or on the record. TEX. R. CIV. P. 18a(f)(2)(A) (concerning motions to recuse filed before
evidence has been offered at trial). The rules even provide that the challenged judge “should not
file a response to the motion.” TEX. R. CIV. P. 18a(c)(2).
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The “refer rule” requires a challenged judge to refer the recusal motion to the presiding
judge in the first instance, and allows only the newly assigned judge, a judge other than the
challenged judge, to hear and rule upon the motion to recuse. This process affords the parties—
the State and the defendant—a fair and impartial forum in which each may litigate the merits of
the motion. Further, this process contemplates the resolution of the motion through the exercise
of the independent judgment of the assigned judge absent any outside pressure. It would defeat
the purpose of the “refer rule” to permit the challenged judge to insert herself in her official
capacity as judge in order to exert pressure upon and influence the assigned judge’s judgment. It
is not just inappropriate but blatantly improper for a challenged judge to take action designed to
influence the outcome of the matter at issue. To hold otherwise would seriously compromise the
independence of the assigned judge and undermine the integrity of the judicial recusal process.
We make no distinction between that period during which the motion is pending and the
period immediately following the ruling by the assigned judge. Once a judge has been recused,
the prudent approach is for the recused judge and the assigned judge to have no further
communications with each other concerning any aspect of that case. See Mosley v. State, 141
S.W.3d 816, 833 (Tex. App.—Texarkana 2004, pet. ref’d). Judicial action prohibited during the
pendency of the recusal motion should not be tolerated after the assigned judge rules on the
motion. In both instances, the rules plainly discourage any attempt by the challenged judge to
influence the judgment of the assigned judge.
Additionally, there is some authority holding that the parties to a criminal case are the
State and the accused, and that no third party may intervene in a criminal case. See Bell v. State,
No. 01-05-01180-CR, 2006 WL 3628916, at *5 (Tex. App.—Houston [1st Dist.] Dec. 14, 2006,
no pet.) (mem. op., not designated for publication) (trial judge was not required to refer motion
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to recuse filed by third-party “public interest organization”); In re Wingfield, 171 S.W.3d 374,
381 (Tex. App.—Tyler 2005, orig. proceeding) (“Unlike the Rules of Civil Procedure, the Code
of Criminal Procedure makes no provision for a third party to intervene in a ‘criminal action.’”).
In Wingfield, the court went so far as to state that the trial judge “had no discretion to consider
the issues raised” by purported intervenors in a criminal case. 171 S.W.3d at 381. By analogy,
Judge Pirtle had no discretion to consider the issues raised by Judge Mullin in her motion for
reconsideration.
Based on the foregoing authorities, we conclude that Judge Mullin’s motion for
reconsideration was wholly improper and without authority. Under the circumstances of this
case, after Amos filed the motion to recuse and Judge Mullin declined to recuse herself, Rule
18a(f)(2)(A) obliged Judge Mullin to take no further action in the case until the issue of her
recusal was decided. Once Judge Pirtle granted the motion to recuse, Judge Mullin should not
have involved herself in the case further. Cf. Dunn v. Cnty. of Dallas, 794 S.W.2d 560, 562
(Tex. App.—Dallas 1990, no writ) (once judge recused himself, he could take no further action
in the case except for good cause stated in the order). Rule 18a(c)(2) states expressly that a
challenged judge should not file a response to the motion; it follows that a judge who has
actually been recused should not file a motion for reconsideration of that decision. See Mosley,
141 S.W.3d at 833 (stating that a recused judge generally should have no communications with
the judge ultimately assigned to the case). Any involvement by the recused judge after recusal
can only disserve the public policy of preserving public confidence in the impartiality of the
judiciary. See Carmody, 184 S.W.3d at 422. We conclude that Judge Mullin should not
have filed the motion for reconsideration, and that Judge Pirtle acted contrary to settled law
when she granted the motion for reconsideration.
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2. The termination of Judge Pirtle’s authority
In addition to the foregoing, we conclude that Judge Pirtle exceeded her authority when
she attempted to entertain Judge Mullin’s motion for reconsideration after Judge Pirtle had
decided the motion to recuse and the presiding administrative judge had transferred and
reassigned the case to a new judge in a new court.
“The terms of the assignment order control the extent of the visiting judge’s authority and
when it terminates.” Mangone v. State, 156 S.W.3d 137, 139–40 (Tex. App.—Fort Worth 2005,
pet. ref’d) (footnote omitted). 3 Thus, an otherwise qualified assigned judge’s action outside the
scope of his or her assignment presents a “procedural irregularity.” Wilson v. State, 977 S.W.2d
379, 380 (Tex. Crim. App. 1998). In Wilson, a former judge was assigned to a particular trial
court for a specific five-week period, and he presided over the appellant’s trial in that court even
though his assignment had expired three days before the trial started. Id. at 379. The appellant
complained about the judge’s lack of authority for the first time on appeal. Id. at 379–80. The
court of criminal appeals held that a defendant may challenge an otherwise qualified judge’s
authority to preside in a particular case by means of a pretrial objection (rather than a quo
warranto proceeding, as had been the rule previously), but the challenge cannot be raised for the
first time on appeal. Id. at 380; accord Jackson v. State, No. 05-10-01190-CR, 2012 WL
955361, at *2 (Tex. App.—Dallas Mar. 22, 2012, no pet.) (not designated for publication) (“An
appellant may not object, for the first time on appeal, to a procedural irregularity in the
assignment of a former judge who is otherwise qualified.”). We conclude, based on Wilson, that
when an otherwise qualified assigned judge renders an order in a criminal case that exceeds the
authority conferred by his or her order of assignment, the order is erroneous, although not void.
3
The rule is the same in civil cases. See, e.g., Davis v. Crist Indus., Inc., 98 S.W.3d 338, 341 (Tex. App.—Fort Worth 2003, pet.
denied) (“The terms of the assignment order control[] the extent of the visiting judge’s authority and when it terminates.”).
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In this case, the order of assignment by the presiding administrative judge provided as
follows:
Pursuant to Rule 18a, Texas Rules of Civil Procedure, I [hereby] assign
the:
Honorable Sue Pirtle
Former Judge of The 382nd District Court
to the
County Criminal Court #5 of Dallas County, Texas
This assignment is for the purpose of the assigned judge hearing a Motion
to Recuse as stated in the Conditions of Assignment. This assignment is effective
immediately and shall continue for such time as may be necessary for the
assigned judge to hear and pass on such motion.
CONDITION(S) OF ASSIGNMENT:
Cause No. MA-10-6876: The State of Texas vs. Heidi Amos.
Based on the language of this order, Judge Pirtle’s authority in the case arguably expired on
September 28, 2012, when she ruled on Amos’s motion to recuse. But we need not decide this
issue because in our view Judge Pirtle definitely lost any authority she had on October 1, 2012,
when the presiding administrative judge transferred and reassigned Amos’s criminal case to a
new court, Dallas County Criminal Court of Appeals No. 2. The transfer order does not
recognize or mention any continuing power in Judge Pirtle to exercise any judicial authority in
the case. Judge Pirtle’s attempt to continue acting in the case after the case had been transferred
in its entirety to a new judge and court was improper and without authority.
3. The State’s response
At our request, the State filed a response to Amos’s petition. The State suggests that
Judge Pirtle’s order granting reconsideration may have been proper as a way of vindicating
Judge Mullin’s due-process rights. In her motion for reconsideration, Judge Mullin averred that
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she had not been given notice of the recusal hearing before Judge Pirtle, and she argued, among
other things, that the lack of notice violated her rights under the Due Course of Law Clause of
the Texas Constitution. See TEX. CONST. art. I, § 19. One element of a claim under this clause is
the existence of a constitutionally protected interest. See In re J.W.T., 872 S.W.2d 189, 194
(Tex. 1994). Although the Texas Supreme Court has said that a public officer’s interest in his
or her elected position is a protected interest, Tarrant Cnty. v. Ashmore, 635 S.W.2d 417,
422 (Tex. 1982), we have found no authority that a trial judge’s interest in presiding over a
particular case is constitutionally protected such that she must be given notice of a hearing
of a motion to recuse. In cases decided under the federal Due Process Clause, courts have held
that possession of a constitutionally protected interest in public employment generally does not
give the holder a protected interest in any particular job duties or responsibilities. See Richards
v. City of Weatherford, 145 F. Supp. 2d 786, 790–91 (N.D. Tex. 2001), aff’d, No. 01-10422,
2001 WL 1268724 (5th Cir. Oct. 16, 2001). We generally construe the Due Course of Law
Clause in the same way as its federal counterpart. Tex. Workers Comp. Comm’n v. Patient
Advocates of Tex., 136 S.W.3d 643, 658 (Tex. 2004). By analogy, Judge Mullin had no
protected interest in presiding over Amos’s particular criminal case. We conclude that the order
recusing Judge Mullin in a single case did not infringe any interest protected by the Due
Course of Law Clause, and therefore any failure to notify Judge Mullin of the recusal hearing did
not violate Judge Mullin’s constitutional rights.
We conclude Amos has shown a clear right to relief from Judge Pirtle’s order granting
reconsideration of Amos’s motion to recuse.
C. Error preservation and adequate remedy at law
We next consider whether we should deny Amos’s petition because she did not present
any of her arguments to Judge Pirtle before filing this original proceeding. See In re Watkins,
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369 S.W.3d 702, 706 (Tex. App.—Dallas 2012, orig. proceeding). Under the particular facts of
this case, we conclude that Amos’s failure to oppose or object to Judge Pirtle’s reconsideration
order is excusable. The record indicates that Judge Mullin served her motion for reconsideration
by first-class mail on October 23, 2012, and Judge Pirtle granted reconsideration, apparently
without a hearing, by order signed on Friday, October 26. Thus, depending on when Amos
received the motion for reconsideration, she had little or no time to respond to the motion for
reconsideration before Judge Pirtle granted it. Moreover, Judge Pirtle’s October 26 order set the
new hearing on Amos’s motion to recuse at 10:00 a.m. on Thursday, November 1, again giving
Amos little time to react. Amos’s decision to seek emergency and mandamus relief from this
Court, which she did on October 30, was understandable under the circumstances. Although she
could have presented her argument at the November 1 hearing, her contention is that Judge Pirtle
could not properly set or conduct such a hearing in the first place. Under these circumstances,
we conclude it is proper for us to address the merits in this proceeding instead of directing Amos
to make her objections before Judge Pirtle, possibly resulting in yet another original proceeding
afterwards.
The court of criminal appeals has said that appeal is ordinarily an adequate remedy for an
erroneous ruling on a motion to recuse. De Leon, 127 S.W.3d at 6. But Amos is not challenging
an order granting or denying a motion to recuse; she is challenging an assigned judge’s
consideration of an improper motion for reconsideration filed by a recused judge. “‘If a district
judge enters an order for which he has no authority, mandamus will issue.’” State ex rel. Cobb v.
Godfrey, 739 S.W.2d 47, 48 (Tex. Crim. App. 1987) (orig. proceeding) (quoting State ex rel.
Holmes v. Denson, 671 S.W.2d 896, 899 (Tex. Crim. App. 1984) (orig. proceeding)). In
Godfrey, the trial judge attempted to grant a new trial after the defendant’s motion for new trial
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had been overruled by operation of law. See id. at 47–48. The court of criminal appeals granted
mandamus relief, concluding that the judge lacked authority to take that action. Id. at 50.
We conclude that mandamus is appropriate on the facts of this case. Judge Mullin acted
without authority when she filed the motion for reconsideration, and Judge Pirtle acted contrary
to settled law when she granted the motion for reconsideration. If we withhold mandamus relief,
any further proceedings by Judge Pirtle will be improper, and any orders or judgments resulting
from those proceedings will be erroneous and subject to reversal, resulting in a waste of judicial
resources. Cf. De Leon, 127 S.W.3d at 7 (indicating that mandamus may be appropriate where
reversal is so certain that a trial would be a waste of judicial resources). Moreover, Judge
Pirtle’s attempt to continue taking judicial action conflicts with the order of the presiding
administrative judge transferring Amos’s case to Judge Rosenfield and interferes with his
authority over the case. In the civil context, mandamus will lie when a court issues an order that
actively interferes with the jurisdiction of another court possessing dominant jurisdiction. See
In re Puig, 351 S.W.3d 301, 306 (Tex. 2011) (orig. proceeding) (per curiam). We conclude that
mandamus should issue to forestall any interference with Judge Rosenfield’s authority over this
criminal case.
III. CONCLUSION
For the foregoing reasons, we conditionally grant Amos’s petition for writ of mandamus.
The writ will issue only if Judge Pirtle fails to vacate her October 26, 2012 Order Granting
Motion for Reconsideration of Order of Recusal and Setting Hearing Date. We deny
Amos’s petition to the extent she requests a writ of prohibition.
/Kerry P. FitzGerald/
KERRY P. FITZGERALD
JUSTICE
121500F.P05
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