in Re Lonnie Kade Welsh

• Court: Court of Appeals of Texas
• Decided: December 3, 2020
• Docket: 09-20-00251-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-20-00251-CV __________________

IN RE LONNIE KADE WELSH

__________________________________________________________________

Original Proceeding 435th District Court of Montgomery County, Texas Trial Cause No. 15-01-659-CV __________________________________________________________________

MEMORANDUM OPINION

In a mandamus petition, Lonnie Kade Welsh complains that Patricia

Maginnis, the judge of the 435th District Court of Montgomery County, Texas,

abused her authority: (1) by issuing a biennial review order in Welsh’s sexually

violent predator (SVP) commitment proceeding while a written motion to recuse

was pending; (2) by deciding the biennial review without Welsh being present; and

(3) by failing to perform her duty to either recuse from the case or refer the motion

to recuse to the regional presiding judge. As relief, Welsh asks this Court to either

1 void or reverse the biennial review order, or to compel Judge Maginnis to comply

with her duty to respond to the motion to recuse.

Welsh was finally committed as a sexually violent predator in 2015. SVP

commitment orders remain in effect until the committed person is no longer likely

to engage in a predatory act of sexual violence. See Tex. Health & Safety Code Ann.

§ 841.081(a). The 435th District Court retains jurisdiction over the commitment and

any biennial reviews of the commitment order. See In re Welsh, No. 09-18-00126-

CV, 2018 WL 1864729, at *1 (Tex. App.—Beaumont Apr. 19, 2018, orig.

proceeding [mand. denied]) (mem. op.). The trial court conducts a biennial review

of the SVP commitment order to determine whether the requirements imposed on

the committed person should be modified or whether probable cause exists to believe

the person’s behavioral abnormality has changed to the extent that he is no longer

likely to engage in a predatory act of sexual violence. See Tex. Health & Safety Code

Ann. § 841.102. He is entitled to representation by counsel in a biennial review, but

he is not entitled to be personally present. Id. § 841.102(b).

Welsh claims he began representing himself in the SVP case on April 28,

2020. On August 25, 2020, Welsh filed an unverified motion to recuse the judge of

the 435th District Court. The motion alleged that Judge Maginnis’s impartiality

might reasonably be questioned because she had failed to (1) sign a biennial review

2 order in a timely fashion, (2) rule on Welsh’s petition for unauthorized release from

SVP commitment, and (3) rule on Welsh’s objections to biennial review.

Judge Maginnis signed a biennial review order on October 7, 2020. The order

includes a finding that there is no evidence submitted to the trial court to suggest that

sex offender treatment has resulted in Welsh’s behavioral abnormality changing to

the extent that he is no longer likely to engage in a predatory act of sexual violence.

The order does not mention Welsh’s motion to recuse.

Welsh attached to his mandamus petition an unsworn declaration in which he

states under penalty of perjury that an unnamed deputy district clerk on August 28

or 31, 2020, informed Welsh in a telephone call that she would notify the presiding

judge that Welsh had filed a motion to recuse. Welsh argues the biennial review

order is void because it was signed while an unresolved motion to recuse was then

pending. He argues mandamus relief is available to compel the trial court to vacate

a void order.

Rule 18a of the Texas Rules of Civil Procedure establishes the procedure for

filing and resolving a motion to recuse a trial court judge. See Tex. R. Civ. P. 18a.

A motion to recuse: (1) must be verified; (2) must assert a ground listed in Rule 18b;

(3) must not be based solely on the judge’s rulings in the case; and (4) must state

with particularity facts that would be admissible in evidence and sufficient to justify

recusal. Tex. R. Civ. P. 18a(a). When a motion is filed, the clerk of the court has a

3 duty to deliver a copy to the respondent judge and to the regional administrative

presiding judge. Tex. R. Civ. P. 18a(e). Regardless of whether the motion complies

with Rule 18a, the respondent judge, within three business days after the motion is

filed, must either recuse or refer the motion to the regional presiding judge. Tex. R.

Civ. P. 18a(f)(1). Whether the respondent judge may proceed depends upon whether

the motion is filed before evidence has been offered at trial: the respondent judge

must take no further action in the case until a pre-trial motion has been decided, but

a judge may proceed if a motion is filed after evidence has been offered at trial,

subject to a stay by the regional presiding judge. Tex. R. Civ. P. 18a(f)(2). The

movant may notify the regional presiding judge if the respondent judge fails to

comply with a duty imposed by Rule 18a. Id. Rule 18a(f)(3).

When a trial judge is presented with a motion to recuse, she must either recuse

herself or refer the motion to the regional presiding judge. Brousseau v. Ranzau, 911

S.W.2d 890, 892 (Tex. App.—Beaumont 1995, no writ). But the mandamus record

in this case fails to establish that Judge Maginnis refused to recuse or refer the motion

to recuse to the regional presiding judge. To the contrary, the record shows that the

trial court clerk failed to deliver the motion to recuse to Judge Maginnis. See Tex.

R. Civ. P. 18a(e)(1). Under the circumstances, the appropriate action is for the trial

court clerk to deliver the motion to recuse to Judge Maginnis so that the judge may

perform her duties under Rule 18a(f). Absent evidence that Judge Maginnis was

4 aware of the motion to recuse, we cannot say that she failed to perform a ministerial

duty, since no such duty arises without the trial court’s knowledge that the motion

was filed. The petition for a writ of mandamus is denied without prejudice.

PETITION DENIED.

PER CURIAM

Submitted on November 12, 2020 Opinion Delivered December 3, 2020

Before McKeithen, C.J., Kreger and Johnson, JJ.