NO. 07-06-0173-CV NO. 07-06-0174-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL A JULY 18, 2006

______________________________ IN RE ANN NELSON PARKER VALLADOLID, R ELATOR

_______________________________ Before REAVIS and CAMPBELL and HANCOCK, JJ.
MEMORA NDUM OPIN ION
Rela tor Ann Nelson Parke r Valladoli d seeks writs of mandamus to compel the Honorable Ron Enns, Judg e of the 69th Judicial Di strict, to either disqualify or recuse himself from presiding in the two underlyi ng declaratory judg ment and wil l construct ion actions comm en ced by real party in interest Greg Parker, relator’s son. Relator also requeststhat we g rant mandamus reli ef byvacating two orders signed by the Honorable KellyGlen Moore i n his capacit y as Judg e of the Ninth Judi cial Ad m inistrati ve Regi on, denying her motions for disqualificatio n and, alternativ ely, re c u s a l o f J u d g e E n n s . We dismiss in part for want of jurisdict ion the relief sough t against J udge Moore and deny in all other r

espects the rel ief sought aga inst Judge E nns.2 Factual Background In 1986, while Judge Enns w as in private practice, a member of his firm pr epared mirror-im age wills

for Claude Nel son and Dorothy Nel so n, relator’s parents and Greg’s grandparents. Claude predeceased Dor othy in 1993, and according to his wi ll, he dev ised his real and pers onal property to Dorothy and Ann Nelson Parker as Co-Trustees in trust to be divided into two separate trust s, referred to as the “Marital Trust” and the “Residuary Trust.” The limited mandamusrecords establish that Ju dge Enns w itnessed the ex ecution of Claude’s w ill in 1986, but contain onl y an unsig ned copy of Doro thy’s 1986 w ill. There is no evidence in this record thatDorothy executed the 1986 will. The records do contain
a will executed by Dorothy in 2002, whic h is simil ar to the copy of her1986 will, but which
names Greg, an attorney, as trustee of the residuarytrust. Judg e Enns did not w itness and was not other

wise inv olved w ith Dorothy ’s 2002 wi ll. Dorot hy died in 2002.
No will contests are at issue, and bot h will s have been admi tted to probate. In 2004, Greg filed a petition for distribution in his capacit y as trus tee of Dorothy’ s residuary trust. This sparked a contro versy promp ting him t o file t he two und erlying proc eedings pending in Judge Enns’s court. Relator counterclaimed seeking, am ong other claims, declaratory relief regar

ding the res iduary trust.
Ata he aring o n September 28, 2005, o n a motion to dis qualify Gr eg as opposing counsel and other matt ers, Judge Enns adv ised all cou nsel of his familiari ty wi th Claude Nelson from his days in private practice. He also informed counsel hehad attended school1 According to the documents bef ore us, Judge Enns had heard and ruled on only

a moti on t o disqualify Greg as opposing counsel. Relator contends Jud ge Enns sua sponte ruled on a Mo tion to Set Asi de Mediation Ag reement. 3 with relator and coached Greg in little league. Judg e Enns indicate d he was “ somewhat famil iar with the folks. ” Following Jud ge Enns’s remarks, relator’s local cou nsel, Ge orge Whittenburg, remarked, “i t does not create a problem for us. ”
Months later, on Feb ruary 23, 2006, W hittenburg wrote Judge Enns a detailed letter notifying him that a recu sal issue had come to his atte ntio n regarding Judge Enns’s involvementas a witness to Claude’s will. Relying on Rule 18b of the T exas Rules of Civil Procedure, by his l etter, Whittenburg urge d Judge Enns torecuse himself and to set asid e all previously entered orders. 1 After Judge Enns declined to recuse himself per the W hittenburg letter, on March 7, 2006, relator

filed a verified Motio n fo r Orde r of D isqua lifi cati on an d, Al tern ative ly, Recusal whic h was forwarded to Judge Moore in his capacity as Presiding Judge of the Ninth Judicial A

dministrativ

e Region. Following a te lephon e hearin g, Judge Moor e signed an order in eac h underling action deny ing the motion.
Relator’s position in these mandamus proceedi ngs are that Judge Enns’s

failure to disclose he was a member of the firm that drafted the Nelsons’ w ills and that he wi tnessed the execution of the wills required him to disqualifyhimself under ar ticle V, sec

tion 11 of the Texas Consti tution and Rule 18b(1) of the Texas Rules of Civ il Procedur e or4

alte rnat ively, recuse himself under Rule 18 b(2). Presenting five issues alleging abuse of discretion by both Ju dge Enns and Judge Moore, rela tor requests w

e compel Judge Enns to remove himself from p residing in the und erlying caus es and t hat we vacat e Judge Moore’s orders denying her motion to disqualify or alternatively, recuse Judge Enns. Respondent

Judge Moo re
This Court ’s aut horit

y to g rant o rigi nal w ritsof mandamu s is l imi ted. Under the Texas Gove rnme nt Code, a court of appeals has authority

to issue w rits of mandamus when necessary

to enforce its ju risdicti on or (1) ag ainst a judg e of a district or county court in the court of appeals district or (2)a judge of a dis trict cour t who is acting as a magistrate ata court of inq uiry under Chapter 52 of theTexas Code of Criminal Procedure in the co urt of appeals distri ct. See T EX . G OV ’ T C ODE A NN . § 22.221(a) & (b) (Vernon 2004). Absent from that list i s a judge i n his capacit y as presiding jud ge of an administr ative judi cial region. We have no authority to issue a writ of mandamus agai nst an official not prescribed by

statute. See generally Casner v. Rosas, 943 S.W.2d 937, 938 (Tex.App.–El Paso 1997, no writ) (deny ing leave to file a petiti on for wri t of mandamus against a justice of the peace).
The re cords before us do not dis close a necess ity for is suance of a writ of mandamus to enforce our jurisdiction. Relator seeks reliefagainstJudge Moore not in his capacity as a District Judge, but in his cap acity as the Presi ding Judge of the Ni nth Judicial Administrative Region. This Court has previously held we haveno jurisdi ction to issue a5

writ of mandamus against the Honorable Kelly G. Moore in his capacity as a region al presiding judge. See In re Hett ler, 110 S.W .3d 152 , 154-5 5 (Tex.Ap p.–Am arillo 20 03, orig. proceeding). Thus, relator’s request for mand amus reli ef against Judge Moore is dismissed for w

ant of jurisdic

tion. Respondent Judge Enns
Awrit of mandamus will only is sue to correc t a clear abuse of di scretion or violati on of a duty imposed by law

when there is no adequate remedy by appeal, and the r

elator has the burden to prese nt the appellate cour t with a record sufficient to establish the right to mandamus. Walker v. P a cker, 827 S.W .2d 833, 837-39 (Te x. 1992) (orig. proceeding). In our analys is, we mus t “focus on the r ecord that was before the court and wheth er the decision was not only arbitrary but also amounted to ‘a clear and prejudicial error of law.’” In re Bristol-Myers Squibb Co., 975 S.W .2d 601, 605 (Tex. 1998 ) (orig. proceeding). Article V, section 11 of the Texas Constituti on provides in part: [n]o judge shall sit in any case wher

ein he may be inter

ested, or w here either of the par ties m ay be connec

ted w ith hi m, either by

aff init y or con sang uini ty, within such a degr ee as may be pres cribe d by l aw, or w hen he sh all ha ve been counsel in the case.
Rule 18b(1) of the Texas Rules of Ci vil Pr oced ur e was inte nded to expound th e requirements

for constitutional disqualifica tions. See In re O’Conn or, 92 S.W.3d 446, 448- 49 (Tex. 2002). See also Tes co Amer ican, Inc. v . Strong Industries, Inc. , __S.W.3d __,6

2006 WL 662740, *1-2, 49 Tex. Sup. Ct. J. 448 (Mar. 17, 2006). Subsecti on (a) of the rule providesfor mandatory disqualification if the judge served as a lawyer in the matter in cont rover sy, or a lawyer wit h whom he previously practiced law served during such association as a lawyer concerning the matter.
Rule 18b(2) prov ides the condit ions un d er whic h recusal i s mandatory. The procedure for pursuing either disq ua lific ation or rec usal is set forth in Rule 18a

. Subparagraph (a) req uires a verified motion to be filed wit h the clerk of the court stat ing the grounds why the judge before whom the case is pending should not si t. Subparagrap h (b) providesfor service of copies of the motion on all other pa rties or their counsel on the day the motion is fil ed.
The records before us contain a l etter dat ed Februa ry 23, 2006, from attorney George Whitten burg, by which he informally raised a recusal issue with Judge Enns. Disquali fication, however , was not ad dressed in the let ter. W hitten burg urged Judge Enns to recuse himsel f from presiding in the underly ing actions due to his partnership while in privatepractice i n the law firm t hat prepared the N elsons’ w ills in 19 86. Follow ing recei pt of the letter, J udge Enns adv ised all cou nsel by letter, that he was considering the matters submitted by the February 23 letter and als o directed co unsel to advise him on their positionsregarding his former law partner as a material w itness in the und erlyi ng proceedings. That sa me dat e, relat or’s Dalla s counse l, Jame s Jennin gs , wrote Judge7

Enns expressi ng, among other concerns, hi s concurrence with Whittenburg thathe should recuse himsel f. By footnote, Jenni ngs added:
We respectfully

mainta in thatthe Court shou ld not in any sense “hear”the recusal issue. If the C ourt does not voluntarily recuse its elf upon its ow n consideration of Mr. Whittenburg’s let ter, then [rel ator] will fil e a Motion for Recus al and, o f course, the matter will be assigned to another Court for consideration

. . . . According to relator’ s petitionsfor writ of mandamus, Jud ge Enns did not act timely on the letters to v

oluntarily step down from the cases w ithout formal motions

. The procedural r

equirements of R ule 18 a are m andatory and a party w ho fails to complywith the rules waivesthe right to complain of a trial judge’ s refusal to r ecuse. See Wirtz v. Mass achusetts Mut. Life Ins. Co., 89 8 S.W.2d 414, 422 -23 (Tex.App.–Amarillo 1995, no writ ). See also McElwee v. McEl wee, 911 S.W.2d 182, 186 (Tex.A pp.–Houston [1st Dist.] 1995, writ deni ed). The recor ds before us demonstr ate that re lator chose to pursue her request for Judge Enns’s recusal by informal m eans, i.e. , letters from counsel, rather than by

verified moti ons as requi red by Rul e 18a. Moreover, Rule 18a(f) of the T exas Rules of Civil Pro cedure pro vi des t hat i f a motion for either disqualification or recusal un der Rule 18a is denied, it may be review

ed for abuse of discret ion on appeal from a final judgment. See In re Union Pacific Resour ces Co., 969 S.W .2d 427, 428 (Tex. 1998 ). Mandamus is not an appropria t e remedy if an adequate remedy by

appeal exists. Hooks v. Fourt h Court of Appeals , 808 S.W.2d 56, 598

(Tex. 1991). Thus, we have no choi ce but to deny relator’s petitions for writof mandamus sought against Judge Enns.
Accordin gly , the petitions for writ of mandamus against th e Honorable Kel ly Glen Moore are dismissed for w antof jurisdict ion; in additi on, the petitions for writ of mandamus againstthe Honorable Ron Enns are al so denied. Fur ther, the emergency

stays g ranted by this Court in cause numbers 1114P an d 4253H by orders of May 1, 2006, are hereby lifted.
Don H. Reavis Justice