Frankie Wayne Nealy v. Robin Michelle Nealy

Opinion

NUMBER 13-14-00689-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

FRANKIE WAYNE NEALY, Appellant,

v.

ROBIN MICHELLE NEALY, Appellee.

On appeal from the 36th District Court of San Patricio County, Texas.

ORDER Before the Court En Banc Order Per Curiam

This cause is before this Court on appellant’s “Unsworn Declaration in Support of

Motion to Recuse.” Appellant’s motion requests that Justice Gina M. Benavides and

Justice Gregory T. Perkes be recused on the basis appellant cannot receive a fair and impartial appeal because the justices “participated in my criminal conviction appeal,

adversely ruling against me and upholding the trial court’s judgment revoking my

community supervision that resulted in a[n] aggravated life sentence plus 20 years.” 1

Rule 16 of the Texas Rules of Appellate Procedure states that the grounds for

recusal of an appellate court justice are the same as those provided in the rules of Civil

Procedure. TEX. R. APP. P. 16.2;See also TEX. R. CIV. P. 18a, 18b. Rule 18b(2) of the

Texas Rules of Civil Procedure identifies the grounds for recusal. See TEX. R. CIV. P.

18b(2); McCullough v. Kitzman, 50 S.W.3d 87, 88 (Tex. App.BWaco 2001, pet. denied)

(order). It provides that a judge shall recuse himself or herself in a proceeding in which

the judge’s impartiality might reasonably be questioned, as asserted by appellant in this

case. See TEX. R. CIV. P. 18b(2)(a).

Rule 16.3 of the Texas Rules of Appellate Procedure prescribes the procedure to

be followed for recusal of an appellate justice or judge before whom the case is pending.

The Rule provides that before any further proceeding in the case, the challenged justice

or judge must either remove himself or herself from all participation in the case or certify

the matter to the entire court, which will decide the motion by a majority of the remaining

judges sitting en banc. See TEX. R. APP. P. 16.3(b). The challenged justice or judge

1 On March 14, 2013, this Court issued a memorandum opinion before Justices Benavides, Vela, and Perkes with Justice Vela not participating because her term of office expired on December 31, 2012. The opinion affirmed the judgment of the trial court. See Nealy v. State, No. 13-11-00288-CR, 2013 WL 1092417 (Tex. App. Corpus Christi March 14, 2013, pet. ref’d).

2 must not sit with the remainder of the court to consider the motion as to him or her. See

id.

Pursuant to the procedure outlined in Rule 16.3(b), upon the filing of the recusal

motion and prior to any further proceedings in this appeal, each of the challenged justices

of this Court considered the motion in chambers. See TEX. R. APP. P. 16.3(b). Justices

Gina M. Benavides and Justice Gregory T. Perkes each found no reason to recuse

themselves and certified the matter in writing to the remaining members of the court en

banc. See id.; McCullough v. Kitzman, 50 S.W.3d at 88. The six justices met to

deliberate and decide the motion to recuse with respect to each challenged justice by a

vote of the remaining justices en banc. No challenged justice sat with the other members

of the Court when his or her challenge was considered. See TEX. R. APP. P. 16.3(b).

The Court, having examined and fully considered the pleadings and the record as

to the allegations pertaining to each challenged justice, and finding the allegations to be

unsubstantiated, each motion to recuse is denied with respect to each challenged justice.

This Court finds no reason to recuse Justice Gina M. Benavides or Justice Gregory T.

Perkes. Accordingly, appellant’s motion to recuse Justice Gina M. Benavides and

Justice Gregory T. Perkes is DENIED.

It is so ORDERED.

Delivered and filed the 12th day of July, 2016.