Johnson v. Smith

857 S.W.2d 612, 1993 Tex. App. LEXIS 1070, 1993 WL 112515
CourtCourt of Appeals of Texas
DecidedApril 8, 1993
Docket01-92-00137-CV
StatusPublished
Cited by34 cases

This text of 857 S.W.2d 612 (Johnson v. Smith) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. Smith, 857 S.W.2d 612, 1993 Tex. App. LEXIS 1070, 1993 WL 112515 (Tex. Ct. App. 1993).

Opinions

OPINION ON MOTION FOR REHEARING

DUNN, Justice.

We withdraw this Court’s opinion of April 2, 1992, which overruled relator’s motion for leave to file petition for writ of mandamus, and substitute this opinion. The Court today considered the motion for rehearing of Arthur Johnson, relator, on his motion for leave to file petition for writ of mandamus.

Relator’s Complaints

The following is a summary of Johnson’s complaints:

1.Johnson claims he filed a motion for recusal of Judge West on November 11, 1991. Johnson claims he was denied a hearing after asking for the hearing to be recorded and for a court reporter to transcribe the hearing in the cause of Johnson v. Alamo Express, No. 89-06337. Johnson also claims he was denied his rights in three prior hearings.
2. He alleges Judge West refused to let Johnson “in” certain cases for rehearing.
3. He complains that West refused to allow him a motion for rehearing on his affidavit of inability and failed to reinstate the cause.
4. Johnson claims that on December 21, 1991, Judge West denied him of his due process rights by having his claims removed from other courts, putting cost bonds on these claims, and entering his own orders to dismiss Johnson’s claims. Johnson asserts he was denied an appeal from dismissal of these claims.
5. Johnson states that he filed a motion for a hearing in cause number 89-06337, Johnson v. Alamo Express, in the 281st District Court, on his motion to strike the answers of defendants for failure to answer his request for discovery. He alleges the clerk set a date and time for hearing, which the court cancelled. Johnson claims the court’s acts in cancel-ling the hearing were false and misleading and were without his knowledge or consent.
6. Johnson asserts he asked Judge Moore for a court reporter, but Judge Moore stated he would not allow a pro se person to record or transcribe the hearing. Johnson claims he moved to have Judge Moore recused.
7. He complains of Judge P.K. Reiter, who Johnson says was to hear a recusal motion.
8. Johnson states he became aware on December 23, 1991, of acts to defraud him of his claims. He filed a motion for rehearing and reinstatement. He claims Judge Reiter and Judge West stated they were going to see that all of Johnson’s claims were dismissed.
9. He asserts Judge West had the district clerk return all motions he filed and forbad Johnson from filing any papers or motions. Johnson claims these acts deny him access to the court system and deprive him of due process.

[614]*614First, we note that the record before us does not contain many of the exhibits that are necessary to evaluate whether Johnson is entitled to relief on his claims. Tex. R.App.P. 121(a)(2)(C). We have no certified or sworn copy of Judge Smith’s, Judge Reiter’s, or Judge Moore’s refusal to grant a hearing or to recuse. Johnson states that Judge Smith initialed his denial; however, we have not been furnished a copy of the order of which Johnson complains. Johnson does not state that any of the judges denied relief but refused to enter a written order of denial. We do not have an order transferring Johnson’s causes of action to Judge West’s court. We have only one order of dismissal from the causes of action on which Judge West imposed costs. Thus, we are unable to reach the question of whether Judge Smith or Judge West abused their discretion in regard to relator’s complaints for which no orders or transcripts of proceedings were submitted to this Court. Id.1 We, therefore, confine our review to documents that are before us for purposes of this original proceeding.

The documents before this Court include (1) Johnson’s motion for recusal of Judge West in cause numbers 88-44456, 89-06338, 89-09981, 90-00550, 91-23037, and 91-30289; (2) an order entered by Judge West refusing Johnson’s motion of recusal and referring the cause of action to the administrative judge for further resolution; (3) orders imposing costs in cause numbers 89-06338, 89-09981, 90-00550, 91-23037, and 91-30289; and (4) an order of sanctions and dismissal entered on February 6, 1992, by Judge West in cause number 91-30289. In addition, the record contains an order sustaining the district clerk’s contest to Johnson’s affidavit of inability in cause number 92-01469, which was entered by Judge West on January 21, 1992; a default judgment signed by Judge Charles Sherrill in cause number 84-46546, on December 3, 1990; a docket sheet from cause number 88-44456; notices sent to Johnson about hearings on motions for costs in cause numbers 88-44456, 89-06337, 89-06338, 89-09981, 90-00550, 91-23037, and 91-30289. We do not have an order imposing costs in cause number 88-44456.

Standard of Review

Under the standard articulated by the Texas Supreme Court in Walker v. Packer, 827 S.W.2d 833, 839-40, 840-844 (Tex.1992), we must determine whether Judge West abused his discretion in denying the motion to recuse and in entering the orders for costs and for sanctions and dismissal. In addition, we must determine whether relator demonstrated that he has no adequate remedy by way of appeal from the order imposing sanctions and for dismissal. Id.

Recusal

The record before us shows that Johnson was notified by letters dated January 7, 1992, that a rule for costs hearing would be held on motion by court regarding cause numbers 88-44456, 89-06338, 89-09981, 90-00550, 91-23037, and 91-30289, which were pending in various Harris County courts. The hearing was to be held on January 21, 1992, in the 269th District Court, of which Judge West is the presiding judge.2

Johnson filed the motion of recusal on January 16, 1992, in cause numbers 88-44456, 89-06338, 89-09981, 90-00550, 91-23037, and 91-30289. Rule 18a(a) states:

At least 10 days before the date set for trial or other hearing in any court other than the Supreme Court, the Court of Criminal Appeals or the court of appeals, any party may file with the clerk of the court a motion stating grounds why the judge before whom the case is pending should not sit in the case.

Tex.R.Civ.P. 18a(a) (emphasis added). Johnson’s motion of recusal was filed only five days before the hearing on the motions [615]*615for costs. Thus, the motion of recusal was untimely filed.

On January 21, 1992, Judge West entered orders that required Johnson to pay costs in cause numbers 89-06338, 89-09981, 90-00550, 91-23037, and 91-30289. At the time he entered the orders imposing costs, Judge West had not yet ruled on the motion for recusal. Judge West denied the motion for recusal on January 22, 1992.

Rule 18a(d) states:
(d) If the judge declines to recuse himself, he shall forward to the presiding judge of the administrative judicial district, in either original form or certified copy, an order of referral, the motion, and all opposing and concurring statements.

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Cite This Page — Counsel Stack

Bluebook (online)
857 S.W.2d 612, 1993 Tex. App. LEXIS 1070, 1993 WL 112515, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-smith-texapp-1993.