Rhett Webster Pease v. Janell Pease

• Court: Court of Appeals of Texas
• Decided: September 10, 2004
• Docket: 03-03-00644-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-03-00644-CV

Rhett Webster Pease, Appellant

v.

Janell Pease, Appellee

FROM THE DISTRICT COURT OF LEE COUNTY, 21ST JUDICIAL DISTRICT NO. 12380, HONORABLE HAROLD R. TOWSLEE, JUDGE PRESIDING

MEMORANDUM OPINION

Appellant Rhett Webster Pease appeals from the district court’s entry of a final decree

of divorce. Following the allegation in his brief that he and his ex-wife, Janell Pease, have

reconciled, appellant prays that the final decree of divorce should be rendered void and of no force

and effect because (1) the district court improperly ruled on appellant’s motion to disqualify the

district court judge, and (2) the district court improperly shortened the discovery period. We will

affirm the district court’s final decree of divorce.

Issue 1: Motion to Disqualify

On August 1, 2003, appellant filed a motion to disqualify the district court judge,

alleging the judge was biased against him. On August 4, 2003, the district court denied appellant’s motion because it was not verified. See Tex. R. Civ. P. 18a. When a motion to recuse or disqualify

is filed, the judge may either recuse himself or refer the motion to the presiding judge of the

administrative judicial district. See Tex. R. Civ. P. 18a(c); Johnson v. Pumjani, 56 S.W.3d 670, 672

(Tex. App.—Houston [14th Dist.] 2001, no pet.). The erroneous denial of a motion to disqualify

renders void all orders and judgments by a judge who is constitutionally disqualified. See In re

Union Pac. Res. Co., 969 S.W.2d 427, 428 (Tex. 1998); Buckholts Indep. Sch. Dist. v. Glaser, 632

S.W.2d 146, 148 (Tex. 1982). Appellant therefore argues that the district court judge’s failure to

either recuse himself or refer the motion to the presiding judge of the administrative judicial district

renders the final decree of divorce void as a matter of law.

We disagree. Although appellant styled his motion as a motion to “disqualify,” it is

actually a motion to “recuse.” Appellant asserted in his motion that the judge’s alleged bias,

including “gender bias,” should result in disqualification. See Tex. Const. art. V, § 11 (“No judge

shall sit in any case wherein he may be interested, or where either of the parties may be connected

with him, either by affinity or consanguinity, within such a degree as may be prescribed by law, or

when he shall have been counsel in the case.”). “While a judge’s ability to be fair is an appropriate

issue for consideration in a recusal action under the Texas Rules of Civil Procedure, ‘fairness’ is not

a consideration in constitutional disqualification.” Chandler v. Chandler, 991 S.W.2d 367, 386-87

(Tex. App.—El Paso 1999, pet. denied) (citing Gulf Maritime Warehouse Co. v. Towers, 858 S.W.2d

556, 558 (Tex. App.—Beaumont 1993, writ denied)). Because appellant asserted no grounds for

constitutional disqualification, we accordingly treat his motion as a motion to recuse.

2 The procedural requirements of Rule 18a regarding recusal are mandatory, and a party

who fails to comply with them waives the right to complain of a judge’s failure to recuse himself.

See Gill v. Texas Dep’t of Criminal Justice, 3 S.W.3d 576, 579 (Tex. App.—Houston [1st Dist.]

1999, no pet.); Jamilah v. Bass, 862 S.W.2d 201, 203 (Tex. App.—Houston [14th Dist.] 1993, no

writ); Watkins v. Pearson, 795 S.W.2d 257, 259-60 (Tex. App.—Houston [14th Dist.] 1990, writ

denied); see also Arnold v. State, 778 S.W.2d 172, 180 (Tex. App.—Austin 1989), aff’d, 853 S.W.2d

543 (Tex. Crim. App. 1993). Here, appellant’s motion was not verified, which prevents appellant

from now arguing that the district court erred in overruling his motion or that the final decree of

divorce is void. We overrule appellant’s first issue.

Issue 2: Shortened Discovery Period

Appellant alleges the district court improperly shortened the discovery period by

scheduling a hearing on a motion to compel discovery and for sanctions before the discovery period

expired. While it appears from the record that the district court may have scheduled the hearing

before the discovery period was actually over, the hearing itself on the motion to compel discovery

and for sanctions occurred after the discovery period had ended.1 Additionally, appellant has

presented no argument for why the district court’s alleged premature scheduling of a hearing on

1 At the hearing, the district court issued an order that (1) appellant answer discover requests, and (2) appellant pay attorney’s fees of $450 to appellee’s attorney as discovery sanctions. Appellant does not directly contest either component of the district court’s order, but merely “prays that after review of the record that the appellate court declare the trial court order void and of no force or effect.”

3 discovery renders the final decree of divorce “void and of no force or effect.” We therefore overrule

appellant’s second issue. See Tex. R. App. P. 38(h).

CONCLUSION

Having overruled all of appellant’s issues on appeal, we affirm the district court’s

final decree of divorce.

__________________________________________

Mack Kidd, Justice

Before Justices Kidd, B. A. Smith and Pemberton

Affirmed

Filed: September 10, 2004