In Re Todd Warren Altschul v. the State of Texas

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-24-00208-CR

IN RE TODD WARREN ALTSCHUL

Original Proceeding

From the 54th District Court McLennan County, Texas Trial Court No. 91-281-C

MEMORANDUM OPINION ON REHEARING

We deny the motion for rehearing filed by Relator Todd Warren Altschul.

However, we withdraw our opinion and judgment dated December 5, 2024 and

substitute this opinion and its associated judgment in their place.

Relator, Todd Warren Altschul, proceeding pro se, filed a petition for writ of

mandamus in this Court. See TEX. GOV'T CODE ANN. § 22.221; TEX. R. APP. P. 52. In the

petition, Relator asks this Court to direct the Honorable Susan Kelly, Judge of the 54th

District Court of McLennan County, to recuse herself from ruling on his motion for nunc pro tunc judgment in cause number 91-281-C or refer the matter to the regional presiding

judge for the Third Administrative Judicial Region.

On May 14, 1991, Relator was convicted of theft in trial court cause number 91-

281-C. Due to a late notice of appeal, his appeal was dismissed. See Altschul v. State, No.

10-97-00267-CR (Tex. App.—Waco October 22, 1997, no pet.) (mem. op., not designated

for publication) (per curiam). In 2023, he filed a motion for nunc pro tunc judgment in

the trial court to have the judgment corrected to reflect the number of days he claims to

have spent in jail before judgment was rendered. He also filed a motion for recusal of

Respondent in an effort to keep her from ruling on his motion for nunc pro tunc

judgment. See TEX. R. CIV. P. 18a. Respondent did not rule on the motion for nunc pro

tunc judgment. Respondent did not rule on his motion to recuse or refer it to the regional

presiding judge for disposition. See id. R. 18a(f). In this original proceeding, Relator

requests this Court to issue a mandamus to compel Respondent to recuse herself or refer

the matter to the regional presiding judge.

Relator has the burden to properly request and show entitlement to mandamus

relief. See TEX. R. APP. P. 52.3; Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston

[1st Dist.] 1992, orig. proceeding). To be entitled to mandamus relief, the Relator must

show that (1) he has no adequate remedy at law to redress his alleged harm, and (2) what

he seeks to compel is a ministerial act, not a discretionary act. In re Powell, 516 S.W.3d

488, 494-95 (Tex. Crim. App. 2017) (orig. proceeding). Further, Relator has the burden of

In re Altschul Page 2 providing this Court with a sufficient record to establish his right to mandamus relief.

See TEX. R. APP. P. 52.7(a); In re Gomez, 602 S.W.3d 71, 73 (Tex. App.—Houston [14th Dist.]

2020, orig. proceeding). A court has a ministerial duty to rule on a properly filed and

timely presented motion, although it generally has no ministerial duty to rule a certain

way on that motion. In re Allen, 462 S.W.3d 47, 50 (Tex. Crim. App. 2015) (orig.

proceeding). An act is ministerial if the Relator can show a clear right to the relief sought,

meaning that the merits of the relief sought are beyond dispute. In re McCann, 422 S.W.3d

701, 704 (Tex. Crim. App. 2013) (orig. proceeding).

The rules of civil procedure concerning recusal of judges apply in criminal cases.

See De Leon v. Aguilar, 127 S.W.3d 1, 5 (Tex. Crim. App. 2004) (orig. proceeding). A party

in a case in any trial court other than a statutory probate court or justice court may seek

to recuse or disqualify a judge who is sitting in the case by filing a motion with the clerk

of the court in which the case is pending. TEX. R. CIV. P. 18a(a).

A cause is no longer pending after the trial court’s plenary power has expired. See

Schwartz v. Jefferson, 520 S.W.2d 881, 885-86 (Tex. 1975) (orig. proceeding). Here, the trial

court’s plenary power expired over thirty years ago. A trial court may correct clerical

errors by use of a judgment nunc pro tunc after its plenary jurisdiction expires. See State

v. Bates, 889 S.W.2d 306, 309 (Tex. Crim. App. 1994). But neither filing a motion for a nunc

pro tunc judgment nor entry of a judgment nunc pro tunc revives or reopens the case

after expiration of the trial court’s plenary jurisdiction. See Ex parte Dickerson, 702 S.W.2d

In re Altschul Page 3 657, 658 (Tex. Crim. App. 1986) (Holding that a nunc pro tunc order does not have the

legal effect of making a new and independent order.). Relator’s 1991 theft case is no

longer pending. Therefore, he may not seek to recuse or disqualify Respondent. See TEX.

R. CIV. P. 18a(a).

Accordingly, Relator has failed to meet his burden of proof to obtain relief. See

In re Powell, 516 S.W.3d at 494-95. Therefore, we deny the July 5, 2024 petition for writ of

mandamus filed by Relator Todd Warren Altschul.1

STEVE SMITH Justice

Before Justice Smith, Justice Davis,2 and Justice Rose3 Petition denied Opinion issued and filed December 30, 2024 [OT06]

1 All pending motions are dismissed as moot.

2The Honorable Rex Davis, Senior Justice (Retired) of the Tenth Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court. See TEX. GOV’T CODE ANN. §§ 74.003, 75.002, 75.003.

3 The Honorable Jeff Rose, Former Chief Justice of the Third Court of Appeals, sitting by assignment of the

Chief Justice of the Texas Supreme Court. See TEX. GOV’T CODE ANN. §§ 74.003, 75.002, 75.003.

In re Altschul Page 4