In Re Guilbot (Tex.App.- Houston [14th Dist.] Nov. 3, 2009)(Anderson) (motion to recuse trial judge)   
(Judge Wood did not have the option of denying the motion to recuse as untimely).
MOTION OR WRIT GRANTED: Opinion by Justice Anderson  
Before Chief Justice Hedges, Justices Anderson and Boyce    
14-09-00595-CV        In Re Miguel Angel Gonzales Guilbot    
Appeal from Probate Court No 2 of Harris County
Trial Court Judge: Michael James Wood

M E M O R A N D U M   O P I N I O N

In this original proceeding, relator, Miguel Angel Guilbot, seeks a writ of mandamus ordering the respondent,
Judge Mike Wood, judge of Probate Court No. 2, to vacate orders signed April 17, 2009, June 18, 2009, and June
19, 2009.  We conditionally grant the writ.

Factual and Procedural Background

This dispute centers on a family business and the litigation that ensued among  family members after one of the
business's co-founders died.  The co-founder's will was probated in 2003, and litigation began in 2004.

The original suit was filed in Probate Court No. 2 and bore the cause number 344,157-401.  In that case, relator
filed a motion to recuse Judge Wood.  Judge Wood refused to recuse himself and forwarded relator's recusal
motion to Judge Guy Herman, presiding judge of the statutory probate courts.  Judge Herman assigned Judge
Gladys Burwell to hear the motion to recuse Judge Wood.  Relator thereafter filed motions to recuse both Judge
Herman and Judge Burwell.  Judge Herman denied all of the motions to recuse, including the motion to recuse
directed at him.  Judge Wood then held a bench trial and signed a  final judgment.

Relator and two other parties appealed Judge Wood's judgment.  Among other issues, they  asserted that Judge
Wood's judgment was void because Judge Herman erred in ruling on a  motion to recuse Judge Herman.  This
court held that Judge Herman erred when he ruled on a  motion to recuse directed at him.  Guilbot v. Estate of
Gonzalez, 267 S.W.3d 556, 561 (Tex. App.- Houston [14th Dist.] 2008, pet. filed).  Because Judge Herman
erroneously ruled on the motion to recuse directed at him, this court concluded  that Judge Herman's order
denying the motion to recuse Judge Wood was void. Because a recusal motion was  pending against Judge Wood
when he signed the final judgment, Judge Wood's judgment also was void.  Id.

While the appeal from the original suit was pending, relator filed a second suit on December 21, 2007, in the 295th
District Court of Harris County against the real parties in interest.  The second suit asserted that the will at issue
was forged and was procured through  fraud.  On March 27, 2009, the real parties in interest filed a motion to
transfer the second suit to Probate Court No. 2 on grounds that the issues were identical to those in the original
case tried in Judge Wood's court.  The motion to transfer was set for a hearing on April 17, 2009.  On April 15,
2009, relator filed a motion to recuse Judge Wood.  On April 17, 2009 Judge Wood signed an order granting the
real parties' motion to transfer the case to Probate Court No. 2.

On June 18, 2009, Judge Wood signed  an order denying relators' motion to recuse him.  On June 19, 2009,
Judge Wood signed an order referring the recusal to Judge Guy Herman, presiding judge of the statutory probate
courts.

Relator challenges Judge Wood's orders of April 17, 2009, June 18, 2009, and June 19, 2009.  Relators contend
these orders are void because Judge Wood did not recuse himself in response to the April 15, 2009 recusal
motion and did not refer that motion to the presiding judge.

Generally speaking, mandamus relief is available upon a showing that (1)  the trial court abused its discretion; and
(2)  there is no other adequate remedy in law.  See Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992).

With respect to the first prong, a trial court abuses its discretion when it clearly fails to correctly analyze or apply
the law.  In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005).

With respect to the second prong, “Texas law has long held that mandamus will issue where the trial court's order
is void and that it is unnecessary for a relator to pursue other available remedies."  South Main Bank v. Wittig, 909
S.W.2d 243, 244 (Tex. App.- Houston [14th Dist.] 1995, orig. proceeding).  

Denial of a motion to recuse is appealable upon final judgment.  Tex. R. Civ. P. 18a(f).  Thus, a relator challenging
the denial of a recusal motion ordinarily has an adequate remedy by appeal of the denial of a motion to recuse.  
However, mandamus relief is available when a judge violates a mandatory duty to recuse or refer a motion to
recuse.  In re Norman, 191 S.W.3d 858, 860 (Tex. App.- Houston [14th Dist.] 2006, orig. proceeding).

Analysis

Under Rule 18a, Judge Wood had a mandatory duty to recuse himself or to refer the recusal motion to the
presiding judge.  Tex. R. Civ. P. 18a.  The real parties in interest contend that Judge Wood properly granted the
motion to transfer and denied the recusal motion because the motion was not timely filed pursuant to section
25.00255 of the Government Code.  Under section 25.00255, a recusal motion must (1) be filed at least 10 days
before the date of a hearing or trial; (2) be verified: and (3) state with particularity the alleged grounds for recusal.  
Tex. Gov't Code Ann. § 25.00255(b) (Vernon Supp. 2009).  Real parties contend that Judge Wood was entitled to
deny relator's April 15, 2009 recusal motion because it was filed only two days before the hearing on the motion to
transfer.  

Regardless of whether a motion to recuse may be defective or untimely, the challenged judge must recuse or refer
the motion so that another judge can determine the procedural adequacy and merits of the motion.  Norman, 191
S.W.3d at 861.  Judge Wood did not have the option of denying the motion to recuse as untimely.  Jamilah v.
Bass, 862 S.W.2d 210, 203 (Tex. App.- Houston [14th Dist.] 1993, orig. proceeding) (The trial judge must recuse
himself or refer the motion to the presiding judge “regardless of the timeliness of the motion.").  Thus, we hold that
Judge Wood abused his discretion by signing (1) the April 17, 2009 order granting the motion to transfer; and (2)
the June 18, 2009 order denying the motion to recuse.  Both orders are void, and mandamus is the appropriate
remedy to address these void orders.  In re Norman, 191 S.W.3d at 860.  The June 19, 2009 order referring the
recusal motion to the presiding judge is proper, and that order stands.

Conclusion

Because the orders signed on April 17, 2009 and June 18, 2009 are void, we conditionally grant the writ of
mandamus.  The writ will issue only if the trial court fails to vacate the orders signed on April 17, 2009 and June
18, 2009.

/s/        John S. Anderson

Justice

Panel consists of Chief Justice Hedges and Justices Anderson and Boyce.