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Gill v. Texas Department of Criminal Justice

8/31/1999



Anthony E. Gill, the plaintiff below and appellant here, appeals a summary judgment rendered in favor of the Texas Department of Criminal Justice, Institutional Division, the defendant below and appellee here (the TDCJ). We affirm.


Factual Background


The plaintiff is an inmate housed at Ellis Unit I in Huntsville, Texas. On March 28, 1995, he was injured while loading tree stumps onto a truck owned by the TDCJ. While the plaintiff was in the bed of the truck, other inmates placed a tree stump onto the bed, which rolled and struck the plaintiff's leg. The plaintiff was seen on the same day by the Ellis Unit I medical department. His medical records indicate an abrasion two inches long and one-eighth inch deep, which was cleansed with the application of betadine and a band-aid. The plaintiff claims the injury left a scar on his leg.


The plaintiff sued the TDCJ under the Texas Tort Claims Act. The plaintiff alleged that Phillip Cobler, an employee of the TDCJ, was negligent in the performance of his responsibilities as a supervisor in accordance with the policies adopted by the TDCJ. The plaintiff also alleged he was injured through the use of a motor vehicle and tangible property. The TDCJ moved for summary judgment, asserting sovereign immunity. The trial court granted the motion for summary judgment, and this appeal followed.


Recusal of Judge


Before the summary judgment hearing, the plaintiff filed a motion to recuse Judge McAdams, who was presiding over the plaintiff's lawsuit. Judge McAdams refused to recuse himself and referred the matter to Judge Thomas J. Stovall, presiding Judge of the Second Administrative Judicial District. Judge Stovall assigned Judge Jerry Sandel to hear the recusal motion. The plaintiff filed "objections to the request for hearing before Judge Jerry Sandel." Judge Sandel conducted a hearing on the plaintiff's motion to recuse and denied the motion to recuse Judge McAdams. The plaintiff did not obtain a ruling on his "objections to the request for hearing before Judge Jerry Sandel."


In point of error one, the plaintiff asserts his due process rights were violated because Judge Sandel did not disqualify himself pursuant to Texas Government Code section 74.053. The plaintiff asserts that Judge Sandel's disqualification was mandatory and automatic under Section 74.053. We disagree.


The plaintiff objected to Judge Sandel on the grounds that Judge Sandel would be prejudiced against him because Judge Sandel "enjoys a working relationship with Judge McAdams" and would deny him the opportunity to be heard on his claims against TDCJ. Thus, the plaintiff's objection was not a peremptory challenge to Judge Sandel as a visiting Judge under Section 74.503. Because the plaintiff alleged partiality and prejudice as his grounds for Judge Sandel's recusal, his objection was brought under Texas Rules of Civil Procedure 18a and 18b.


Rule 18a requires that a motion for recusal or disqualification be verified and state with particularity why the Judge before whom the case is pending should not sit. Tex. R. Civ. P. 18a(a). If a party does not comply with the mandatory requirements of Rule 18a, he waives his right to complain of a Judge's refusal to recuse himself. See McElwee v. McElwee, 911 S.W.2d 182, 186 (Tex. App.-Houston [1st Dist.] 1995, writ denied); see also Vickery v. Texas Carpet Co., 792 S.W.2d 759, 763 (Tex. App.-Houston [14th Dist.] 1990, writ denied). The plaintiff's objection to Judge Sandel was not verified. However, because the plaintiff is an inmate he could have submitted an unsworn declaration instead of a verification. See Tex. Civ. Prac. & Rem. Code §132.001(a); see a

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