in Re Jose Alfredo Garcia

• Court: Court of Appeals of Texas
• Decided: July 10, 2012
• Docket: 13-12-00432-CV
• Status: Published

Opinion

NUMBERS 13-12-00432-CV & 13-12-00433-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE JOSE ALFREDO GARCIA

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Justices Rodriguez, Benavides, and Perkes Memorandum Opinion Per Curiam1

Relator, Jose Alfredo Garcia, pro se, filed a “Motion to Recuse Judge Lopez of

the 404th District Court[,] Cameron County” referencing trial court causes of action

2011-DCL-04511, resulting in our cause number 13-12-00432-CV, and 2011-DCL-

04788, resulting in our cause number 13-12-00433-CV. The pleading filed by relator is

unclear regarding the procedural history of these two cases. Relator does not urge that

he is appealing an adverse ruling or rulings, and the materials filed do not include a final

judgment in either matter. The documents provided by relator do not meet the 1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not required to do so.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions). requirements for a notice of appeal. See generally TEX. R. APP. P. 25.1(a), (d).

Accordingly, we construe relator’s pleadings as petitions for writ of mandamus. As

stated herein, we deny the petitions.

I. STANDARD OF REVIEW

To be entitled to the extraordinary relief of a writ of mandamus, the relator must

show that the trial court abused its discretion and that there is no adequate remedy by

appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig.

proceeding). The relator has the burden of establishing both prerequisites to

mandamus relief, and this burden is a heavy one. In re CSX Corp., 124 S.W.3d 149,

151 (Tex. 2003) (orig. proceeding); see also Barnes v. State, 832 S.W.2d 424, 426

(Tex. App.—Houston [1st Dist.] 1992, orig. proceeding) (“Even a pro se applicant for a

writ of mandamus must show himself entitled to the extraordinary relief he seeks.”).

In addition to other requirements, relator must include a statement of facts

supported by citations to “competent evidence included in the appendix or record,” and

must also provide “a clear and concise argument for the contentions made, with

appropriate citations to authorities and to the appendix or record.” See generally TEX.

R. APP. P. 52.3. In this regard, it is clear that relator must furnish an appendix or record

sufficient to support the claim for mandamus relief. See id. R. 52.3(k) (specifying the

required contents for the appendix); R. 52.7(a) (specifying the required contents for the

record).

II. APPLICABLE LAW

Under Texas Rule of Civil Procedure 18a, “[a]n order denying a motion to recuse

may be reviewed only for abuse of discretion on appeal from the final judgment,”

2 whereas an order denying a motion to disqualify may be reviewed by mandamus and

may be appealed in accordance with other law.” See TEX. R. CIV. P. 18a(j)(1)(A), (2).

Although the documents filed by relator reference both recusal and disqualification, the

substance of the motion and the argument in the pleadings are directed at bias and

impartiality, neither of which is a ground for constitutional disqualification. See id.

18b(a). Instead, impartiality, personal bias, and prejudice are grounds for recusal. See

id. 18b(b). Accordingly, relator has an adequate remedy by appeal.

III. CONCLUSION

The Court, having examined and fully considered the petitions for writ of

mandamus and the applicable law, is of the opinion that relator has not met his burden

to obtain mandamus relief. See In re Prudential Ins. Co. of Am., 148 S.W.3d at 135–36.

Accordingly, the petitions for writ of mandamus are DENIED. See TEX. R. APP. P.

52.8(a).

PER CURIAM

Delivered and filed the 10th day of July, 2012.