Jamilah v. Bass

• Decision Date: 30 September 1993
• Docket Number: No. A14-93-00751-CV,A14-93-00751-CV
• Citation: 862 S.W.2d 201
• Parties: Maryam JAMILAH, Relator, v. Judge Ogden BASS, Respondent. (14th Dist.)
• Court: Texas Court of Appeals

Page 201

862 S.W.2d 201

Maryam JAMILAH, Relator, v. Judge Ogden BASS, Respondent.

No. A14-93-00751-CV.

Court of Appeals of Texas Houston (14th Dist.).

Sept. 30, 1993.

Maryam Jamilah, Rosharon, for appellant.

Jerri Mills, Lake Jackson, George W. Vie, III, Galveston, for appellee.

Before J. CURTISS BROWN, C.J., and ELLIS and LEE, JJ.

OPINION

LEE, Justice.

In this original proceeding, relator seeks a writ of mandamus directing respondent to set aside his orders holding relator in contempt and his order denying her motion for recusal. We conditionally grant the relief sought.

To avoid confusion, only a brief recitation of the facts will be given. Our record reflects that relator was the attorney of record for John Esquivel, petitioner in a divorce action in the lower court. The present case emerged out of that initial representation. On June 30, 1993, the underlying divorce action came to be heard before Judge Ogden Bass, of the 300th District Court of Brazoria County. Both parties to the divorce appeared, as well as the attorney for Mrs. Esquivel. Relator, who was attorney of record for Mr. Esquivel, failed to appear because of her belief that her presence was unnecessary due to an agreement between the parties. ¹ As a result of not appearing, Judge Bass ordered relator to appear in court on July 9, 1993, to show cause for her failure to appear in court on June 30, 1993. On July 9th, relator again failed to appear for the scheduled show cause hearing. The record reveals the second absence was due to the influence of medication taken by relator, and that the absence was not intentional.

On July 13, 1993, Judge Bass once again ordered relator to appear to show cause for her failure to appear in court on July 9th. The hearing was set for July 19th. Relator was notified of the July 19th show cause hearing on July 14, 1993. The following day relator filed a motion for recusal, requesting that Judge Bass recuse himself from the case. On July 19, 1993, Judge Bass tried relator on the motions for contempt for failure to appear in his court on June 30th, and July 9, 1993. ² After extensive argument by relator, Judge Bass found that relator offered no explanation on her failure to appear, and as a result, found relator in contempt on both counts and fined her $750.00 plus court costs.

Relator now seeks relief by mandamus on the allegations that respondent had a duty to act and failed to act pursuant to the provisions of § 21.002(d) of the TEX.GOV'T CODE. Mandamus may issue only to correct a clear abuse of discretion or a trial court's failure to perform a ministerial duty. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917-18 (Tex.1985). Section 21.002 of the TEX.GOV'T CODE provides the court with contempt powers. Subsection (d) specifically speaks to an officer of the court being held in contempt. This subsection reads as follows:

An officer of a court who is held in contempt by a trial court shall, on proper motion filed in the offended court, be released on his own personal recognizance pending a determination of his guilt or innocence. The presiding judge of the administrative judicial region in which the alleged contempt occurred shall assign a judge who is subject to assignment by the presiding judge other than the judge of the offended court to determine the guilt or innocence of the officer of the court.

TEX.GOV'T CODE ANN. § 21.002(d) (Vernon Supp.1993).

Relator contends that Judge Bass was without authority to hear the motions for contempt because he was relator's accuser. Relator maintains that once Judge Bass cited her for contempt, the judge was then required to transfer the contempt proceeding to the presiding judge of the administrative judicial region for a determination of her guilt.

The statute is clear that there must first be a finding of contempt and second, a proper motion filed in the offended court before any duty of the judge becomes effective. See TEX.GOV'T CODE ANN. § 21.002(d) (Vernon Supp.1993). A review of the record reveals that relator has not filed a proper motion in the offended court. Relator, having failed thus far to fulfill the requirements of § 21.002(d), is no position to complain of the judge's failure to act. ³ However, this is not dispositive of this proceeding. Our review of the record shows that Judge Bass was without authority to hear the motions for contempt due to relator's filing of a motion for recusal prior to the contempt hearing.

TEX.R.CIV.P. 18a provides:

(a) At least ten days before the date set for trial or other hearing ... any party may file with the clerk of the court a motion stating grounds why the judge before whom the case is pending should not sit in the case....

(c) Prior to any further proceedings in the case, the judge shall either recuse himself or request the presiding judge of the administrative judicial district to assign a judge to hear such motion. If a judge decides to recuse himself, he shall enter an order of recusal and request the presiding judge of the administrative judicial district to assign another judge to sit, and shall make no further orders and shall take no further action in the case except for good cause stated in the order in which such action is taken.

(d) If the judge...