Greenberg, Benson, Fisk and Fielder, P.C. v. Howell

• Decision Date: 25 October 1984
• Docket Number: No. 05-84-01036-CV,05-84-01036-CV
• Parties: GREENBERG, BENSON, FISK AND FIELDER, P.C., Relator, v. Charles Ben HOWELL, Respondent.
• Court: Texas Court of Appeals

Page 694

685 S.W.2d 694

GREENBERG, BENSON, FISK AND FIELDER, P.C., Relator, v. Charles Ben HOWELL, Respondent.

No. 05-84-01036-CV.

Court of Appeals of Texas Dallas.

Oct. 25, 1984.

Robert M. Greenberg, Alvin R. Granoff, Ray HeLal, Donald G. Stanford, Edwin E. Wright, III, Ron Wren, Dallas, for relator.

Tom McCorkle, Jr., Dallas, for respondent.

Before CARVER, ROWE and SHUMPERT, JJ.

CARVER, Justice.

Relator, as attorneys of record in two unrelated cases pending in the 191st Judicial District Court, filed separate motions on June 18, 1984, and July 5, 1984, respectively, seeking recusal of the trial judge. No action thereon had been taken by the trial judge, Charles Ben Howell, the respondent herein, prior to the commencement of this mandamus action against him on September 26, 1984. Judge Howell, by letter of September 13, 1984, had advised the parties in both lawsuits that he had decided to withhold action on the motions pending the outcome of his election for a higher office, his reason being that if he were successful the motions would become moot and delay would be avoided. Relator contends Judge Howell's inaction is not legally justifiable. Judge Howell offers no response in this proceeding. For reasons stated below, we sustain relator's contentions. Mandamus is granted, but the writ is withheld, unless respondent Howell shall fail, by not later than October 29, 1984, to either recuse himself or enter an order of referral of both recusal motions to the presiding judge of the administrative district, and to file with the clerk of this court a certified copy of the order entered.

We start with the basic premise that although our appellate court lacks power to compel a trial judge to do a particular act involving or requiring discretion on his part, our court does have power to order a trial judge to exercise his discretion in some manner. Boswell, O'Toole, Davis and Pickering v. Stewart, 531 S.W.2d 380, 382 (Tex.Civ.App.-Houston [14th Dist.] 1975), Jones v. Smith, 470 S.W.2d 305, 307 (Tex.Civ.App.-Houston [1st Dist.] 1971). Because a trial judge may not arbitrarily halt trial proceedings, mandamus will lie to compel a trial judge to proceed to trial and judgment in a case pending in his court. For many years the statute granting our mandamus jurisdiction expressly so provided, TEX.REV.CIV.STAT.ANN. art. 1824 (Vernon 1964), and the recent amendment to that article expands rather than restricts this authority. TEX.REV.CIV.STAT.ANN. art. 1824 (Vernon Supp.1984).

We construe Judge Howell's letter of September 13, 1984, as a refusal to proceed to trial. His letter reads in pertinent part as follows: "... I have decided to withhold action on the recusal motion until after the election. There will be no other proceedings in the case during that period." We take judicial notice that the election...