In re Chavez

• Decision Date: 12 August 2003
• Docket Number: No. 08-03-00277-CR.,08-03-00277-CR.
• Citation: 130 S.W.3d 107
• Parties: In re Eduardo CHAVEZ.
• Court: Texas Court of Appeals

130 S.W.3d 107

In re Eduardo CHAVEZ.

No. 08-03-00277-CR.

Court of Appeals of Texas, El Paso.

August 12, 2003.

Jaime E. Esparza, El Paso, for state.

Ray Velarde, El Paso, for relator.

John P. Mobbs, El Paso, for ad litem.

BARAJAS, C.J., LARSEN, McCLURE, and CHEW, JJ., EN BANC.

OPINION ON WRIT OF MANDAMUS

DAVID WELLINGTON CHEW, Justice

Relators Eduardo Chavez and Cesar De Leon seek mandamus relief directing Respondent, the Honorable Luis Aguilar, judge of the 120th Judicial District Court of El Paso County to recuse himself from their cases, or in the alternative, relief directing Judge Aguilar to refer their respective motions to recuse to the presiding judge in this administrative judicial region for proper adjudication.¹ Relators also request a writ of prohibition to prohibit Judge Aguilar from exercising jurisdiction over their cases. The real parties in interest in each cause are their attorneys Joseph (Sib) Abraham, Jr. and Kathleen Salome Smith. We must deny mandamus relief in each cause.

FACTUAL AND PROCEDURAL BACKGROUND

Relators' complaints about Judge Aguilar's alleged personal bias arise from events which occurred in April 2002, during which Judge Aguilar was a candidate for judicial office for the 120th Judicial District Court. At that time, Mr. Joseph (Sib) Abraham and Ms. Kathleen Salome Smith, together as the Law Offices of Joseph (Sib) Abraham, Jr., were attorneys representing their client Javier Favela in a criminal matter then pending in the United States District Court in El Paso, Texas. During the course of that representation, Mr. Favela was critically injured in a traffic accident during an inmate transfer movement by the U.S. Marshal Service on April 10, 2002. The marshals immediately contacted the Law Offices of Joseph (Sib) Abraham, Jr. and informed them of the accident and requested that they notify the Favela family. In addition, the U.S. Marshal Service requested that the law office serve as liaison between the Favela family, medical personnel, and the Marshal Service since Mr. Favela was still considered a prisoner in federal custody who could not have physical contact with family members. Ms. Smith went to Thomason Hospital, where she was eventually met by Favela family members.

The next day, April 11, 2002, numerous individuals approached the Favela family at Thomason Hospital while their attorney Ms. Smith was present. These individuals included attorneys attempting to solicit representation of Mr. Favela in any personal injury litigation against those agencies involved in the traffic accident. Judge Aguilar, then a judicial candidate, was among the attorneys present at Thomason Hospital. The Favela family members advised those individuals in the presence of U.S. Marshals, that the law office of Joseph (Sib) Abraham, Jr. would be handling the representation of Javier Favela and his family. Mr. Abraham's law office continued to represent the Favela family interests until April 13, 2002, two days later, when the Favela family informed Mr Abraham and Ms. Smith that they had retained the services of another attorney, Luis Aguilar, now Judge Luis Aguilar. The conduct of Judge Luis Aguilar at the hospital, and days thereafter, is the foundation for the subsequent motions to recuse.

In each case identical recusal motions allege that prior to being hired by the Favelas, Judge Aguilar appeared at Thomason Hospital, supposedly on behalf of the Favela's church community. Relators contended that although Judge Aguilar knew that the Favelas had secured the Law Offices of Joseph (Sib) Abraham, Jr. as their counsel and had seen Ms. Smith at the hospital, his true purpose was to procure legal employment and the Favela's personal injury case. On April 15, 2002, Judge Aguilar formally informed Ms. Smith that he had been retained by all of Mr. Favela's heirs to represent their interests regarding any personal injury claim. On April 16, 2002, Ms. Smith sent a letter complaining about Judge Aguilar's solicitation of business. Ms. Smith stated that Judge Aguilar was certainly aware that she represented Mr. Favela in his federal criminal proceedings and was the individual first contacted by the U.S. Marshal Service. Ms. Smith further stated that she was present at Thomason Hospital with Mr. Favela from Wednesday, April 10, 2002, until the early hours of the following morning, Thursday, April 11, 2002, from approximately 10 a.m. to 9 p.m. on that same date, and again on Friday, April 12, 2002, from approximately 9:30 a.m. to 12:30 p.m. and from 3:15 p.m. to 5 p.m. During this time period, it was Ms. Smith's understanding, based on her communication with the Favela family that she would be handling any personal injury claim. With respect to the solicitation, Ms. Smith wrote,

I have always upheld an impeccable ethical reputation and I did not, given the very grave nature of Mr. Favela's injuries and the family's anguish, believe it appropriate or considerate to require the Favelas to sign a formal contract with me at that time. Their word was sufficient for me. I could not have anticipated that an individual newly elected for a judicial position and who I am certain embodies the utmost respect for legal ethics would appear at the hospital as a representative of the Favela's church community—and enter into a legal discussion with them when it was well-known by you that I represented them.

After receipt of Ms. Smith's letter, Judge Aguilar orally communicated with Mr. Abraham concerning the Favela situation. During their conversation, Judge Aguilar allegedly referred to and described Ms. Smith in a derogatory and unkind manner. Ms. Smith and Judge Aguilar had no further communication or contact until March 2003 at which time Ms. Smith appeared on behalf of Mr. Abraham as counsel for their client David Estrada in the case styled State v. Estrada before Judge Aguilar in the 120th Judicial District Court.

Relators' recusal motions also detail Judge Aguilar's actions as presiding judge in State v. Estrada during March and April 2003, prior to his recusal, which Relators assert evidenced his deep-rooted bias against the Relators. In the Estrada case, Judge Aguilar scheduled that case for trial on a date which Ms. Smith had previously and formally notified the court would conflict with a specially scheduled jury trial in the State of Texas v. Trent Eigner in the 41st Impact Court of El Paso County. At the April 2, 2003 hearing on the motion to continue filed in Estrada based on this scheduling conflict, counsel Ray Velarde appeared before Respondent on behalf of the law office of Joseph (Sib) Abraham, Jr. to urge Mr. Abraham's motion for continuance of that hearing filed April 1, 2003. Respondent denied the motion to continue.

In March 2003, Mr. Abraham with counsel Ray Velarde were scheduled for a status conference in an unrelated civil forfeiture case before Judge Aguilar. When associate Ms. Smith failed to appear precisely at 9:30 a.m., Judge Aguilar sua sponte granted a post answer default judgment in favor of the State of Texas. Ms. Smith was admittedly tardy to the conference because she was still appearing before the Hon. David Briones, a federal district judge for the Western District of Texas, El Paso Division in three cases. Prior to the status conference, the State and claimants had been involved in settlement negotiations, which they continued after the judge's action. However, upon information and belief, counsel understood that Judge Aguilar would not accept their settlement agreement or an agreed judgment. On April 4, 2003, Mr. Abraham, Ms. Smith, and Mr. Velarde filed a motion for new trial in the civil case, and attached to their April 11 amended motion a letter from Judge Briones to Judge Aguilar, confirming that Ms. Smith was in his court for mandatory docket call, which lasted longer than he had anticipated. Though the State did not oppose the motion for new trial, Judge Aguilar denied the motion at the April 25 hearing on the matter.

On May 2, 2003, Mr. Abraham and Ms. Smith filed a motion to recuse based on the allegations described above on behalf of their client in State of Texas v. David Estrada. This motion is identical to the recusal motions the attorneys would later file in Relator Chavez's case on May 28, 2003 and Relator De Leon's case on June 5, 2003. In the Estrada case, Judge Aguilar properly referred the motion to the administrative judge of the Sixth Administrative Judicial Region. The Honorable Kathleen Cardone conducted a hearing on the Estrada recusal motion on May 30, 2003. At the Estrada hearing, Judge Aguilar was represented by attorney ad litem Stuart Leeds. On June 2, 2003, Judge Cardone granted the motion to recuse in State v. Estrada, finding that grounds existed to justify recusal of Judge Aguilar based on his alleged bias against Mr. Abraham and Ms. Smith. Judge Cardone ordered Judge Aguilar to recuse himself from further proceedings in the Estrada case. On June 3, 2003, Judge Aguilar filed a motion for reconsideration in the Estrada case, to which Mr. Abraham and Ms. Smith as Estrada's counsel filed a response. On June 5, 2003, Judge Aguilar filed a reply to the response, alleging for the first time that the motion to recuse in Estrada did not state adequate grounds for recusal and was not "prima facie adequated [sic]."

On the same date, in Relator Chavez's case, Stuart Leeds, acting as "Attorney ad Litem for Judge Aguilar," filed a "Motion to Strike/Quash Motion to Recuse." In the motion, Judge Aguilar through his ad litem counsel requested that he, Judge Aguilar, strike the motion to recuse filed on May 28, 2003, because it failed to state with "particularity" the grounds for recusal, was based on "unidentified hearsay," was not "facially sufficient and prima facie adequated [sic]," and "[did] not even allege proper grounds for recusal." On June 6, 2003, Judge Aguilar granted his own motion to quash Relator Chavez's recusal motion, finding...