State ex rel. Millsap v. Lozano

• Citation: 692 S.W.2d 470
• Decision Date: 19 June 1985
• Docket Number: No. 69451,B,No. 6,6,69451
• Parties: STATE of Texas ex rel. Sam D. MILLSAP, Jr., Criminal District Attorney, Bexar County, Petitioner, v. R. Robert LOZANO, Judge County Court at Lawexar County, Respondent.
• Court: Texas Court of Criminal Appeals

Page 470

692 S.W.2d 470

STATE of Texas ex rel. Sam D. MILLSAP, Jr., Criminal District Attorney, Bexar County, Petitioner, v. R. Robert LOZANO, Judge County Court at Law No. 6, Bexar County, Respondent.

No. 69451.

Court of Criminal Appeals of Texas En Banc.

June 19, 1985.

Sam D. Millsap, Jr., Dist. Atty., Kirk Sherman and Charles Estee, Asst. Dist. Attys., San Antonio, for petitioner.

Robert A. Valdez, Gary M. Burton, Leo Dougherty, San Antonio, for respondent.

Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION

ONION, Presiding Judge.

We granted leave to file petitioner's original application for writ of mandamus, pursuant to Article V, § 5, Texas Constitution, to order a trial judge to vacate his orders recusing another county court at law judge from the trial of a criminal case after the completion of the guilt and penalty stages of the trial in the second judge's court.

The issue is involved in a highly unusual fact situation--a multi court situation--a real believe it or not with due apologies to Ripley. Collier v. State, 297 S.W.2d 160, 162 (Tex.Cr.App.1957) (Davidson, J., Dissenting Opinion).

The record shows Joe D. Neaves, III was charged with the penal offense of driving while intoxicated in County Court at Law No. 4 of Bexar County in Cause No. 311990. His first ¹ jury trial in said court on said charge commenced on January 15, 1985. During the trial the court granted Neaves' motion for mistrial. ² The case was reset for March 4, 1985. On February 27, 1985, Neaves, less than 10 days before the new trial date, filed a motion to recuse Judge Jay Miller, the duly acting and elected judge of County Court at Law No. 4. Said motion referred to the basis for the earlier mistrial, see footnote No. 1, and asserted Judge Miller was guilty at the first trial of "neglect of duty" under Article 2.03, V.A.C.C.P., in permitting the prosecutor to refer to the defendant's presumption of innocence as "fiction," alleged "insubstantial grounding of Judge Miller in basic tenets of rudimentary law," and made reference to the complaint pending before the State Judicial Conduct Commission regarding Judge Miller's conduct at the first trial filed by counsel for the defendant Neaves.

The recusal motion prayed "the Trial Judge request the Presiding Judge in Bexar County, Texas, to assign a judge of one of the County Courts at Law of Bexar County, Texas, to hear this motion to recuse said Trial Judge from this case, and, upon a hearing grant the defendant's Motion to Recuse and Disqualify the Trial Judge."

Judge Miller declined to recuse himself, and on the same date, February 27, 1985, a "Case Setting Form" for a hearing on the motion to recuse was filled out setting a hearing on said motion in County Court at Law No. 1 of Bexar County on March 1, 1985. The form was not signed by any judge. It was signed by the prosecutor. The bailiff in County Court at Law No. 4 signed for the defendant adding after his signature "Leo refused to sign" apparently referring to Leo Dougherty, counsel for Neaves.

On February 28, 1985, counsel for Neaves presented a "Motion and Order for Assignment of Defendant's Motion to Recuse or Disqualify Judge" to R. Robert Lozano, Judge of the County Court at Law No. 6 of Bexar County and "acting as Criminal Presiding Court of Bexar County."

Said motion informed Judge Lozano of the filing of the recusal motion and assignment of the motion to another court and claimed the "Case Setting Form" was a nullity. Judge Lozano as "Judge of the Criminal Presiding Court" was requested to hear the motion to recuse Judge Miller or assign the motion to another county court at law. Judge Lozano set the motion for a hearing in his court on March 12, 1985, and ordered all proceedings in Cause No. 311990 in the County Court of Law No. 4 suspended until disposition of the recusal motion.

The next day, March 1, 1985, Judge Anthony Ferro of County Court at Law No. 1 of Bexar County conducted a hearing on the motion to recuse. The defendant Neaves was not present nor was his lead counsel, Leo Dougherty. It appears co-counsel, Robert Valdez, was asked to step into the courtroom from the hallway as he passed by. Judge Ferro overruled the motion, finding Judge Miller qualified.

Although the record is not as clear as it could be, it appears that on March 4, 1985, the defendant Neaves failed to appear for trial in County Court at Law No. 4. Judge Miller ordered the bond forfeited and Neaves arrested. It appears Neaves was located in his attorney's office and brought to the courtroom. About this time Neaves' attorney presented an order to Judge Miller from the Fourth Court of Appeals granting Neaves' motion for leave to file a petition for writ of prohibition and issuing a Temporary Restraining Order to Judge Miller requiring he take no further judicial action in the cause which might affect the subject matter of the action pending an inquiry into the propriety of the issuance of a writ of prohibition. Neaves was ordered to county jail by Judge Miller and was taken to the Sheriff's office. It then appears Neaves' counsel obtained a writ of habeas corpus from the 187th District Court ordering Neaves' release on bond pending a hearing in that court. ³ Neaves was released. Later in the day on March 4, 1985, the Court of Appeals issued an order withdrawing its former action for the want of jurisdiction. It appears that subsequently Judge Miller and Judge Priest of the 187th District Court conferred, and Neaves and his counsel were advised by Judge Priest to be in Judge Miller's court the next day, March 5, 1985. On that date, the second trial of Neaves commenced in County Court at Law No. 4. Neaves was found guilty by a jury and punishment was assessed by Judge Miller, who presided at the second trial, at 45 days in county jail and a fine of $500.00. Formal sentencing was then deferred to April 19, 1985.

On March 12, 1985, after the completion of the second trial, Judge Lozano of County Court at Law No. 6, conducted a hearing on the motion to recuse Judge Miller which he had previously set. At the hearing Neaves called witnesses as to news stories published during the second trial and attributed by reporters to interviews with Judge Miller. There was also testimony as to a television interview of Judge Miller while in his robes and in view of the jurors in the second trial, the judge's conduct prior to holding defense counsel Dougherty in contempt, his conduct with co-counsel Valdez after the adjournment of court on one day during the trial, and his placing certain individuals under the Rule who were not fact witnesses. A transcription of the court reporter's notes from the first trial indicating the prosecutor's remark during voir dire examination about the presumption of innocence and the court's ruling thereon was offered.

Throughout the hearing the State argued Judge Lozano was without jurisdiction to entertain the motion.

At the conclusion of the hearing Judge Lozano made the following oral ruling:

"THE COURT: On this motion, which is cause or case No. 311,990, the Motion and Order For Assignment of Defendant's Motion To Recuse or Disqualify Judge, I'm going to at this time grant the motion. And I want to state that I'm doing this because it puts me in one hell of a spot to recuse a judge that is on the same level and has the same jurisdiction that I do.

"As to the jurisdiction for the hearing itself, I am going to quote 18a, which says 'in any court.' And as to the opening and the mootness of this, I'm going to follow 3712, the first sentence. And that's going to be the ruling of the Court.

"Now, let me state further, for the record, that there's no way in the world that I can find in the law books that allows me, as a county judge, to enforce this recusal order, and I'm not going to make any statements about this matter, because I feel sure it's not through, and that--whatever way, I would have ruled it would be going up, anyway.

"So if that's it that's it, but I'm not going to make any statements, because I think this thing has more ramifications than you can shake a stick at. Okay, sir.

"MR. DOUGHERTY: We've prepared an order, Your Honor.

"THE COURT: Okay. Somebody better.

"MR. DOUGHERTY: Yes, sir."

Thereafter the relator filed his original application for writ of mandamus in this Court. Leave to file such application was granted on April 11, 1985, and this Court ordered all further proceedings in Neaves' criminal case stayed pending final resolution of the said application.

We turn now to the law of disqualification and recusal.

"The common law of disqualification of judges was clear and simple: a judge was disqualified for direct pecuniary interest and for nothing else * * * Blackstone rejected absolutely the possibility that a judge might be disqualified for bias as distinguished from interest * * *.

"In short, English common law practice at the time of the establishment of the American court system was simple in the extreme. Judges disqualified for financial interest. No other qualifications were permitted."

Interpretive Commentary, Article V, § 11, Texas Constitution. See also 1 R. McDonald, Tex.Civil Practice, § 1.22.1 (1965).

All Texas state constitutions since 1845 have expressly limited the grounds for the disqualification of judges. See Tex. Const., Art. IV, § 14 (1845); Tex. Const., Art. IV, § IV (1861); Tex. Const., Art. IV, § 12 (1866); Tex. Const., Art. V, § 11 of the present Constitution (1876), specifically enumerates the only grounds for disqualification.

Article V, § 11 of the Texas Constitution provides in part:

"No judge shall set in any case wherein he may be interested, or where either of the parties may be connected with him, either by affinity or consanguinity, within such a degree as may be prescribed by law, or when he shall have been counsel in the case."

There are also statutory grounds for disqualification. Article 30.01,...