NUMBER 13-07-00223-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

MARIA ELENA GARZA, Appellant,

v.

LORIE WALTERS, Appellee.

 

On appeal from the County Court at Law of Kleberg County, Texas.

 

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Vela

Memorandum Opinion by Justice Garza

Appellant, Maria Elena Garza, appeals the trial court’s dismissal of her custody and

visitation enforcement motions pertaining to minor child, J.I.G. She also appeals the denial

of her motion to recuse Judge Martin Chiuminatto, Jr. By eight issues, Garza contends

that the trial court erred in dismissing her cause of action for want of prosecution and that
 Lorie W alters, appellee, filed an appellee’s brief on May 22, 2008; however, it was deemed untimely. 1

See TEX. R. APP. P. 38.6 (providing that an appellee’s brief must be filed within thirty days after the date the

appellant’s brief was filed). On the same day, this Court notified W alters that her appellee’s brief was untimely

and requested that she filed a motion for leave. See TEX. R. APP.P. 10.5(b), 38.6(d). Walters did not respond;

therefore, her untimely appellee’s brief was not considered in this matter.

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the trial court abused its discretion in denying her motion to recuse Judge Chiuminatto.1

We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Garza became pregnant with J.I.G. while she was a resident in a Texas Department

of Criminal Justice (“TDCJ”) halfway house. Prior to delivering J.I.G., Garza agreed,

through an adoption agent, to allow Lorie Walters and her husband to have custody of

J.I.G. until she was released from TDCJ. However, after Garza entered into the

agreement, but before J.I.G. was born, Walters and her husband petitioned the San

Patricio County district court for temporary orders for custody of J.I.G., which Garza alleges

was contrary to the original custody agreement. 

J.I.G. was born on July 17, 1996. On November 24, 1998, Garza was named sole

managing conservator of J.I.G. while J.I.G.’s biological father, Ambrose Villela, Jr.,

currently incarcerated in TDCJ, was appointed possessory conservator of J.I.G. Later, on

August 30, 2005, Walters and Garza executed a rule 11 agreement providing that they

would have joint possession of J.I.G. and establishing criteria for Garza’s visitation rights.

It is unclear from the record before us exactly where J.I.G. resided at all times between

1998 and 2005. However, Garza admits to the following: “[d]uring the first ten years of the

child’s life, he alternated between appellant and Mrs. Walters . . . based on Walters
 On appeal, Garza admits that she entered substance abuse rehabilitation at “Charlie’s” in late 2004. 2

She alleges that she entered rehabilitation at the request of Child Protective Services (“CPS”) and that CPS

promised that she would get her child back once she completed her rehabilitation at “Charlie’s.”

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providing refuge when appellant was having financial/substance abuse problems.” Garza 2

and Walters executed a second rule 11 agreement on November 3, 2005. In this

agreement, the parties agreed for Garza to have custody of J.I.G. at all times mutually

agreed to in advance, among other things.

On January 25, 2006, the trial court entered an agreed order to modify the parentchild relationship. In this order, Walters and Garza agreed for Garza to be removed as the

sole managing conservator of J.I.G. and for Walters and Garza to be named joint

managing conservators. Garza filed two motions to enforce the order, first on November

27, 2006, and again on February 7, 2007. In these motions, Garza alleged that Walters

had violated her visitation rights with J.I.G. and that Walters was “actively ‘poisoning’ the

child” against her. 

The trial court scheduled a hearing on February 27, 2007, to address Garza’s

motions. However, the trial court entered an order dismissing Garza’s motions for want of

prosecution on February 27, 2007. In its order, the trial court stated the following:

On the 27TH day of FEBRUARY, 2007, at the Call of the Docket, came the

Above cause for ENFORCEMENT/MODIFICATION Hearing. The Court

having considered the matter and all parties having been notified of such

hearing, no one appeared for the call of the docket. The Court is of the

opinion that all causes of action filed and presently pending should be

dismissed for want of prosecution.

(Emphasis added.) The trial court signed its order dismissing Garza’s motions on March

2, 2007. 

On the same day, Garza filed a motion for rehearing. She filed another motion for
 The trial court did not conduct any hearings on Garza’s motions for rehearing. 3

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rehearing on March 23, 2007. Each of Garza’s motions for rehearing functionally served

as motions for reinstatement of the case. See TEX. R. CIV. P. 165a(3). Garza timely filed 3

her notice of appeal on March 30, 2007. 

On April 3, 2007, Garza filed a motion to recuse Judge Chiuminatto, alleging bias

and favoritism. Specifically, Garza alleged that Judge Chiuminatto: (1) erroneously

dismissed her motions for want of prosecution without a hearing; (2) erroneously stated

that no one had appeared for the hearing; (3) ignored Garza’s motions for a rehearing; (4)

refused to allow Garza to make up missed visitations with J.I.G.; (5) favored Kingsville

attorneys, especially opposing counsel because she was a member of his re-election

committee; (6) showed favoritism toward opposing counsel by giving her numerous ad

litem appointments while appellant’s counsel, though qualified, has received none; and

(7) endangered her appellate rights by waiting ten days to set a hearing, then determined

that no hearing would be set.

On April 12, 2007, Judge Chiuminatto referred the case to the presiding judge of the

Fifth Judicial Administrative Region, Judge J. Manuel Bañales. See TEX.R.CIV.P. 18a(d).

Judge Chiuminatto subsequently denied Garza’s motion to recuse on April 27, 2007. See

id. Judge Bañales held a hearing on Garza’s motion to recuse on May 9, 2007. Garza

filed a notice of accelerated appeal on May 23, 2007, taking issue with Judge

Chiuminatto’s denial of her motion to recuse. Judge Bañales denied Garza’s motion to

recuse on June 4, 2007. This appeal ensued.

II. ANALYSIS
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a. Dismissal for Want of Prosecution

In her first issue, Garza argues that the trial court entered an erroneous order

dismissing her claims for want of prosecution. Specifically, Garza asserts that the trial

court’s order stated that “no one appeared for the call of the docket” even though the

docket sheet reflects that the parties appeared with counsel. In her second issue, Garza

contends that the trial court erred in refusing to provide her with the reporter’s record of the

February 27, 2007 hearing despite her timely request.

1. Standard of Review

We review a trial court’s dismissal of a suit for want of prosecution under an abuse

of discretion standard. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997) (per curiam);

see Sewell Motor Co. v. Capitan Enters., Inc., No. 08-02-00454-CV, 2004 Tex. App. LEXIS

3577, at **5-6 (Tex. App.–El Paso Apr. 22, 2004, pet. denied) (mem. op.). The trial court

abuses its discretion when it acts without reference to any guiding rules or principles or if

the action is arbitrary or unreasonable. Koslow’s v. Mackie, 796 S.W.2d 700, 704 (Tex.

1990); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

A trial court may dismiss a case for want of prosecution (1) when a party fails to

appear at a hearing or trial, (2) when the case has not been disposed of within the

Supreme Court’s time standards, or (3) under the trial court’s inherent power to dismiss,

when the case has not been prosecuted with due diligence. TEX.R.CIV.P.165a; Villarreal

v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999); State v. Rotello, 671

S.W.2d 507, 509 (Tex. 1984); Bilnoski v. Pizza Inn, Inc., 858 S.W.2d 55, 57 (Tex.

App.–Houston [14th Dist.] 1993, no writ). The trial court’s authority to dismiss is derived
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both from rule 165a of the Texas Rules of Civil Procedure and from its own inherent power

to manage its own docket. Veterans’ Land Bd. v. Williams, 543 S.W.2d 89, 90 (Tex. 1976);

Burton v. Hoffman, 959 S.W.2d 351, 353 (Tex. App.–Austin 1998, no pet.). When an

unreasonable delay in the prosecution of a case occurs, it is presumed that the case has

been abandoned. Bilnoski, 858 S.W.2d at 57 (citing Hosey v. County of Victoria, 832

S.W.2d 701, 704 (Tex. App.–Corpus Christi 1992, no writ)). If that delay is not sufficiently

explained, the presumption of abandonment is conclusive and the case will be dismissed.

Id. The trial court may consider periods of activity, intervals of inactivity, reasons for lack

of attention, and the passage of time. Ozuna v. Sw. Bio-Clinical Labs., 766 S.W.2d 900,

902 (Tex. App.–San Antonio 1989, writ denied).

2. Discussion

In its order dismissing Garza’s case, the trial court noted that it was dismissing the

case because no one appeared at the February 27, 2007 hearing for the call of the docket.

Garza points to the trial court’s docket sheet, contained in the clerk’s record, which appears

to contradict the trial court’s order. However, “[a] docket sheet entry forms no part of the

record which may be considered; it is a memorandum made for the trial court and clerk’s

convenience.” Aguirre v. Phillips Props., Inc., 111 S.W.3d 328, 333 (Tex. App.–Corpus

Christi 2003, pet. denied) (citing Energo Int’l Corp. v. Moden Indus. Heating, Inc., 722

S.W.2d 149, 151 & n.2 (Tex. App.–Dallas 1986, no writ); Azopardi v. Hollebeke, 428

S.W.2d 167, 168 (Tex. Civ. App.–Waco 1968, no writ); Restelle v. Williford, 364 S.W.2d

444, 445 (Tex. Civ. App.–Beaumont 1963, writ ref’d n.r.e.)). “Docket sheets remain

inherently unreliable because they lack the formality of orders and judgments.” Id. (citing
 Despite Garza’s failure to procure the reporter’s record from the February 27, 2007 hearing, the 1

appellate record does contain the reporter’s record from the hearing conducted on Garza’s motion to recuse.

Cf. TEX. R. APP. P. 37.3(a)(1) (governing appeals where no record—clerk’s or reporter’s—is filed). 

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Energo, 722 S.W.2d at 151 n.2). Therefore, Garza may not use the docket sheet to

contradict the trial court’s dismissal order. See Aguirre, 111 S.W.3d at 333. 

Nevertheless, Garza argues that the trial court improvidently denied her request for

the reporter’s record of the February 27, 2007 hearing, which would have demonstrated

that the trial court’s dismissal order was incorrect. In her appellate brief, Garza alleges that

“she paid $10.00 to receive a copy of a tape that was alleged to have contained all court

proceedings from February 27, 2007, but after intense scrutiny[,] has been unable to find

any mention of the Garza case being called on the docket.” Later, Garza stated that “she

had a duty to timely file her request for the court reporter’s record, which she did, but it was

not her fault that the tapes were not produced . . . .” This statement appears to undermine

Garza’s earlier contention that she intensely scrutinized the tapes that were provided by

the trial court. 

Garza further alleges that “there has been no production of any court reporter’s

record, either by the district clerk or the trial court . . . .” Garza has not produced any

evidence beyond her bald allegations that she paid $10.00 for a copy of the tape recording

of the February 27, 2007 hearing. Moreover, Garza has not demonstrated that she made

a proper request and paid the appropriate fee to obtain a copy of the reporter’s record for

the February 27, 2007 hearing. Garza has not provided any support for her contention 1

that her failure to timely file a complete appellate record was not her fault. See TEX. R.

APP. P. 38.1(h); see also Palmer v. Espey Huston & Assocs., 84 S.W.3d 345, 351 (Tex.

App.–Corpus Christi 2002, pet. denied) (noting that “a party asserting error on appeal
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bears the burden of showing that the record supports the contention raised, and of

specifying the place or places in the record where matters upon which they rely or of which

they complain are shown. . . . We will not do the job of the advocate”); Happy Harbor

Methodist Home, Inc. v. Cowins, 903 S.W.2d 884, 886 (Tex. App.–Houston [1st Dist.]

1995, no writ). Without the reporter’s record, we cannot say that the trial court entered an

erroneous dismissal order or that it abused its discretion. See MacGregor, 941 S.W.2d at

75; see also Palmer, 84 S.W.3d at 351; Cowins, 903 S.W.2d at 886. Accordingly, we

overrule Garza’s first and second issues on appeal. 

b. Garza’s Motion to Recuse

In her remaining issues, Garza asserts that Judge Bañales erred in conducting “an

impartial and procedurally correct hearing on appellant’s motion for recusal of [the] trial

court [judge].” Garza further argues that Judge Bañales erred in restricting her to one

basis for recusal when she had “at least ten bases” for recusing Judge Chiuminatto. In

support of her contention that the trial court was biased, Garza asserts that the trial court

erred in: (1) allowing testimony about her criminal history; (2) allowing counsel for Walters

to file pleadings just before a hearing; (3) refusing to allow her to make up visitation with

J.I.G.; (4) ignoring repeated misconduct by Walters towards her relationship with J.I.G.;

and (5) allowing or ratifying Walters’s “self-help” activity designed to destroy her

relationship with J.I.G. We construe these arguments as an attack on the impartiality of

the trial court.

1. Standard of Review

We review the denial of a motion to recuse for abuse of discretion. Vickery v.
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Vickery, 999 S.W.2d 342, 349 (Tex. 1999); see also TEX. R. CIV. P. 18a(f) (“If the motion

[to recuse] is denied, it may be reviewed for abuse of discretion on appeal from the final

judgment.”).

Rule 18b(2) of the Texas Rules of Civil Procedure provides that a judge shall recuse

himself in any proceeding in which "his impartiality might reasonably be questioned," or "he

has a personal bias or prejudice concerning the subject matter or a party, or personal

knowledge of disputed evidentiary facts concerning the proceeding.” TEX.R.CIV.P.18b(2).

The recusal rules do not require the trial judge to state a reason for denying a motion to

recuse. See TEX. R. CIV. P. 18a, 18b.

2. Discussion

Garza filed her motion to recuse Judge Chiuminatto on April 3, 2007, which was

after Judge Chiuminatto had dismissed the matter on February 27, 2007. Rule 18a(a) of

the Texas Rules of Civil Procedure provides that a party must file their motion to recuse

“[a]t least ten 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.” TEX. R. CIV. P.

18a(a). Therefore, Garza did not timely file her motion to recuse because the matter had

been dismissed by the time the motion was filed. Because Garza failed to timely file her

motion to recuse, we conclude that Judge Bañales did not abuse his discretion in denying

her motion. See id. Accordingly, we overrule all of Garza’s remaining issues.

III. CONCLUSION

We affirm the judgment of the trial court.

DORI CONTRERAS GARZA, 
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Justice

Memorandum Opinion delivered and 

filed this the 28th day of August, 2008.