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Click here for the full text of this decision FACTS:Wanda Hudson gave birth to her son, Sun, on Sept. 25, 2004, at Hermann Hospital. Sun was diagnosed with a genetic disorder and placed on a ventilator. Sun’s treating physicians eventually determined that life-sustaining treatment should be ended. The hospital’s bioethics board reached the same decision. Hudson was notified of the board’s decision on Nov. 18. The written notification stated that care of Sun would be discontinued in 10 days, as provided for in Health & Safety Code 166.046, unless Hudson could locate a physician and hospital willing to care for Sun. Hudson asked for an extension until Dec. 6, which the hospital granted, but instead of finding a hospital and physician, Hudson filed suit against the hospital. She sought money damages, as well as an injunction compelling the hospital to continue life-sustaining treatment. A temporary restraining order was entered. At a Feb. 8, 2005, hearing on the hospital’s special exceptions to Hudson’s claims, the statutory probate trial court granted the hospital’s motion, as well as the hospital’s motion to quash subpoenas filed by Hudson. Trial was set for Hudson’s only remaining claim (for an injunction) for Feb. 9. The trial court agreed to reconsider its ruling on the special exception, but the trial court judge also expressed concerned about delaying the proceedings any further. “I am concerned about this continuing to go on and on because I am concerned about the baby,” the judge said. “I understand that the baby is in significant pain. I think the longer we are going on with this, especially, if the end result is going to be the same � I think, you know, it’s something that we all need to take into account.” Hudson’s attorney asked how the judge knew the baby was in significant pain, and whether there had been ex parte communication. The judge said he thought he had read about the baby’s condition in the newspaper. Hudson orally moved for a mistrial, but the trial court did not rule on the motion. The trial court then ruled that it would defer is hearing on any remaining claims until the hearing on the motion to reconsider could be held. On Feb. 16, shortly before the trial court was set to the motion to reconsider, Hudson filed a verified motion to recuse the trial judge. Hudson based her motion on the trial judge’s comments on Feb. 9 and alleged that the judge had a preconceived factual opinion that created a bias and prejudice preventing him from making a fair decision. The trial court orally denied Hudson’s motion to recuse, ruling that because Hudson had knowledge of the basis for the motion since Feb. 9, her motion was untimely. The trial judge also stated that the reason he knew about the child’s pain was because he’d read the pleadings. The trial court then denied Hudson’s other motions and entered judgment for the hospital. HOLDING:Reversed and remanded. The court states that under Government Code 25.00255(f), once a motion to recuse is filed in statutory probate court, the trial judge has two options before taking any other action: 1. recuse himself, or 2. request that the presiding judge of the statutory probate courts assign a judge to hear the motion to recuse. Furthermore, under Government Code 25.00255(b) and Texas Rule of Civil Procedure 18a(a), the person moving for recusal must file her motion 10 days before the next trial or hearing. The court points out, however, that the 10-day requirement under Rule 18a(a) does not contemplate a situation whether a party does not know the basis of the recusal until after the motion to recuse is no longer timely. The court finds that this case belongs to a subset of cases in which the 10-day requirement of Rule 18a(a) does not apply because either: 1. the claimed event that triggers recusal occurs less than 10 days before the next scheduled hearing, or 2. the movant in a motion to recuse does not receive 10 days notice of the hearing on the matter from which he seeks to recuse the judge. “Whether Hudson’s motion to recuse was not timely because no good cause was shown for the seven-day delay in its filing was not for the trial judge to determine. . . . Rather, the determination of whether a motion to recuse is timely, particularly when the 10-day requirement of Rule 18a(a) is inapplicable, is a fact-intensive inquiry to be made by the judge assigned to hear the motion to recuse. . . . Thus, once a motion to recuse is filed, a trial judge must either recuse or refer and make no other determinations.” Such is the case here. Consequently, the judge’s rulings after he failed to either recuse or refer are a nullity. “Because of the time-sensitive nature of what is at stake in this case, no motion for rehearing will be entertained.” A motion for en banc consideration was denied. OPINION:Higley, J.; Radack and Justices Higley and Bland, JJ. CONCURRENCE:Bland, J. “[O]ur holding that the motion to recuse must be referred to another judge for review is not an opinion as to the timeliness or the merit of the motion, nor should it be read as a criticism of the character of the trial judge.” The concurrence also urges uniformity among the courts of appeals so that referral or recusal motions becomes automatic, no matter the circumstances. DISSENT FROM THE DECISION AGAINST EN BANC CONSIDERATION:Jennings, J. “[Hudson] filed an inadequate motion to recuse the trial judge and waived her right to complain about this issue on appeal. The panel’s holding that the trial judge was required either to”recuse himself or refer . . . for determination by another judge’ is in error and contrary to this Court’s precedent, and extraordinary circumstances require en banc consideration.”

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