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Stay of Execution

Relator Melissa Lucio filed a motion to recuse or disqualify the trial court judge in her capital murder case. The trial judge failed to timely rule on the motion as required by Rule 18a. [Relator] filed a petition for writ of mandamus to compel the trial judge to rule. The Court of Criminal Appeals conditionally granted mandamus relief, finding the trial judge had a ministerial duty to either recuse herself or refer the motion within 3 days as required by Rule 18a. The writ will only issue if the trial judge fails to comply. Relator's motion to stay her execution was denied.

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Hayden Sparks
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25 views

Stay of Execution

Relator Melissa Lucio filed a motion to recuse or disqualify the trial court judge in her capital murder case. The trial judge failed to timely rule on the motion as required by Rule 18a. [Relator] filed a petition for writ of mandamus to compel the trial judge to rule. The Court of Criminal Appeals conditionally granted mandamus relief, finding the trial judge had a ministerial duty to either recuse herself or refer the motion within 3 days as required by Rule 18a. The writ will only issue if the trial judge fails to comply. Relator's motion to stay her execution was denied.

Uploaded by

Hayden Sparks
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© © All Rights Reserved
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Download as PDF, TXT or read online on Scribd
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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-72,702-03

In re MELISSA ELIZABETH LUCIO, Relator

ON MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF MANDAMUS,


PETITION FOR WRIT OF MANDAMUS, AND MOTION TO STAY THE
EXECUTION IN CAUSE NO. 07-CR-885-B
IN THE 138 TH JUDICIAL DISTRICT COURT
CAMERON COUNTY

Per curiam.

OPINION

We have before us a motion for leave to file a petition for a writ of mandamus and

a petition for a writ of mandamus. Relator has also filed a motion to stay her execution.

In July 2008, a jury convicted Relator of the February 2007 capital murder of her

two-year-old daughter. See T EX. P ENAL C ODE § 19.03(a). Based on the jury’s answers to

the special issues submitted pursuant to Texas Code of Criminal Procedure article 37.071,

the trial court sentenced Relator to death. This Court affirmed Relator’s conviction and

sentence on direct appeal. Lucio v. State, 351 S.W.3d 878 (Tex. Crim. App. 2011). We
Lucio - 2

also denied relief on Relator’s initial post-conviction writ of habeas corpus application.

Ex parte Lucio, No. WR-72,702-02 (Tex. Crim. App. Jan. 9, 2013) (not designated for

publication).

The Respondent, the Honorable Gabriela Garcia, Judge of the 138 th Judicial

District Court, subsequently scheduled Relator’s execution for April 27, 2022. On March

21, 2022, Relator filed the pleadings currently before us. In her mandamus petition,

Relator asserts that she has filed a motion to recuse or disqualify Respondent, but

Respondent has failed to timely rule on the motion as Texas Rule of Civil Procedure 18a

requires.1 Because Respondent has refused to rule on the motion or refer it to the regional

presiding judge, Relator contends, this Court should compel Respondent to act in

accordance with Rule 18a.

On April 4, 2022, we gave the State and Respondent the opportunity to respond to

the petition by Monday, April 11, 2022. In re Lucio, No. WR-72,702-03 (Tex. Crim.

App. Apr. 4, 2022) (not designated for publication). Only the State filed a response.

A relator is entitled to mandamus relief against a trial court when (1) the relator

has no other adequate legal remedy and, (2) the act sought to be compelled is purely

ministerial. In re State ex rel. Ogg, 618 S.W.3d 361, 363 (Tex. Crim. App. 2021).

Texas Rule of Civil Procedure 18a(f), titled “Duties of the Respondent Judge;

Failure to Comply,” states:

1
Texas Rule of Civil Procedure 18a is applicable to criminal cases. See Arnold v. State,
853 S.W.2d 543, 544 (Tex. Crim. App. 1993).
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(1) Responding to the Motion. Regardless of whether the motion complies


with this rule, the respondent judge, within three business days after the
motion is filed, must either:

(A) sign and file with the clerk an order of recusal or


disqualification; or

(B) sign and file with the clerk an order referring the motion
to the regional presiding judge.

In De Leon v. Aguilar, this Court held:

When a recusal motion is timely filed, Rule 18a leaves a trial judge with no
discretion–the trial judge must either recuse himself or refer the motion for
another judge to decide. See Rule 18a(c). [Footnote omitted.] Any
criminal cases to the contrary such as McClenan are overruled. Rule 18a
does not contemplate that a trial judge whose impartiality is questioned can
nevertheless determine whether the allegations of bias against him state
sufficient grounds for recusal.

De Leon, 127 S.W.3d 1, 5 (Tex. Crim. App. 2004).2 Thus, Relator has shown that the act

sought to be compelled is purely ministerial. Further, Rule 18a(f)(3) is titled “Failure to

Comply” and it states that, “If the respondent judge fails to comply with a duty imposed

by this rule, the movant may notify the regional presiding judge.” But this language does

not impose any duty upon the regional presiding judge or the respondent judge.

Therefore, we find that it is not an adequate remedy at law and Relator has no other

adequate remedy at this time.

Consequently, we conditionally grant mandamus relief. The writ of mandamus will

2
Similarly, this Court has held that a trial court has a ministerial duty to rule upon a
“properly filed and timely presented motion[.]” See In re Allen, 462 S.W.3d 47, 50 (Tex. Crim.
App. 2015).
Lucio - 4

issue only in the event that Respondent fails to comply with this opinion within three days

of the date of this opinion. Relator’s motion to stay her execution is denied.

Delivered: April 25, 2022


Do Not Publish

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