George E. Saldana v. Carolyn Pena

Opinion issued April 7, 2026




                                          In The

                               Court of Appeals
                                      For The

                           First District of Texas
                             ————————————
                               NO. 01-24-00271-CV
                            ———————————
                   IN THE INTEREST OF C.E.S., A CHILD



                    On Appeal from the 309th District Court
                             Harris County, Texas
                       Trial Court Case No. 2016-33379


                           MEMORANDUM OPINION

      A recusal motion normally stops the trial court’s power to proceed until the

motion receives a ruling, but Civil Practice and Remedies Code section 30.016

creates an exception for so-called tertiary recusal motions. That exception set off a

chain of events leading to this appeal.
      This appeal arises from a family law dispute in which appellee Carolyn Pena

persuaded the trial court to modify a 2016 order in a suit affecting the parent-child

relationship, such that she would now become the minor child’s sole managing

conservator. Over the course of time, appellant George E. Saldana filed several

recusal motions in this lamentably acrimonious case, including one shortly before

the trial setting on Pena’s modification petition. The trial court denied that motion

to recuse and proceeded to the modification trial before the regional presiding judge

signed a written order denying the recusal motion. Ultimately, the trial court

modified the 2016 order, named Pena as the child’s sole managing conservator, and

imposed significant restrictions on Saldana’s visitation rights.

      In three issues on appeal, Saldana contends that (1) the trial court erred by

proceeding with the trial while the recusal motion was pending before the regional

presiding judge; (2) he lacked adequate notice of the trial setting; and (3) the trial

was fundamentally unfair because he was arrested for allegedly assaulting the

court’s bailiff immediately prior to trial, and his incarceration while court was not in

session hampered his ability to prepare for trial.

      We affirm.

                                     Background

      Saldana has represented himself throughout the trial court proceedings and

this appeal. Relevant matters started in the 257th District Court of Harris County,


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where Saldana filed two recusal motions in October 2021. The trial judge declined

to recuse herself voluntarily, and the regional presiding judge denied both recusal

motions. Several months later, in June 2022, the trial judge voluntarily recused

herself, writing: “There is no Motion to Recuse pending in this matter. However,

there have been 2 prior recusal motions filed in this matter. Each has been ruled on

and denied by the Presiding Judge of the Eleventh Administrative region.”

      The case moved to the 308th District Court of Harris County, where a year

passed before the case was transferred again. The case finally landed in the 309th

District Court.

      As the case approached its preferential setting for the period of October 31 to

November 14, 2023, Saldana filed another motion to recuse. The trial judge declined

to recuse, and she put the case to a bench trial. Unfortunately, on the day trial was

scheduled to begin, something occurred between Saldana and the court bailiff, which

resulted in Saldana being jailed on charges of assaulting a public servant. Some of

the events were outside the courtroom and thus necessarily not on the record, but

some of them took place on the record. Specifically, when Saldana sought to stop

the proceedings by citing his pending recusal motion, the judge explained that the

tertiary recusal statute allowed the case to carry on.

      Saldana maintains in his brief on appeal—apparently based on events either

in the hallway or otherwise not taken down by the court reporter—that the recusal


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motion must have offended the court bailiff, who retaliated by bringing a posse of

fellow bailiffs to put on an aggressive show of force, culminating in Saldana being

sent off to jail, which in turn made the ability to prepare for trial less than ideal.

      After the trial, the trial court modified the 2016 custody order. The court

terminated joint managing conservatorship, named Pena as sole managing

conservator, and imposed various restrictions on Saldana, including a requirement

that all his visitation with the child be supervised. Saldana then moved for a new

trial, contending that (1) the trial was void because of his recusal motion pending

before the regional presiding judge; (2) he lacked adequate notice of the trial that

began on November 14, 2023; and (3) the trial was generally unfair, largely due to

his arrest, which hampered his ability to prepare for trial and present his defense to

Pena’s modification petition.

      Saldana explains his claim of an unfair trial as follows in his appellate brief,

where he gives his version of the first day of trial:

      On November 14, 2023, Mr. Saldana was arrested and charged with
      Assault on a Peace Officer (Bailiff Alderete) involving bodily injury.
      Subsequent to his arrest, he was placed in handcuffs and transported to
      Harris County Jail with a $40,000 bond. Mr. Saldana [w]as found to be
      indigent and could not afford bail for this alleged serious crime. This
      procedural failure severely undermines the Appellant’s ability to
      adequately prepare for trial while incarcerated for an offense he
      maintains he did not commit.
      While awaiting his appearance before the magistrate judge, Mr.
      Saldana was informed that he would be bench-warranted back to the
      309th District Court . . . .

                                            4
      At this point, Mr. Saldana’s liberty was severely restricted, compelling
      him to participate in judicial proceedings under duress and without
      legal counsel. He was returned to the 309th District Court on November
      15, 2023, where he faced the same Bailiff Alderete, who had filed the
      assault allegation against him just one day prior. Despite expressing his
      disagreement with the proceedings, Mr. Saldana felt he had no choice
      but to comply, given the authority exerted by the Harris County
      Sheriff’s Office.
      ****
      Mr. Saldana was mandated by bench warrant to participate in legal
      proceedings on November 15, 16, and 17. Throughout this period, he
      was escorted in handcuffs and shackles across various locations within
      the Harris County Courthouse, including restrooms, under the
      supervision of Bailiff Alderete. This treatment severely limited and
      intimidated Mr. Saldana’s ability to prepare adequately for his trial, as
      he was unable to access his laptop bag, iPhones (X and 14), USB drives,
      notebooks, and court folders necessary for effective litigation.
      These circumstances raise serious concerns regarding the violation of
      Mr. Saldana’s rights and the integrity of the judicial process. We
      respectfully request that the court consider these factors as part of this
      appeal, as they directly impact the fairness of the proceedings and Mr.
      Saldana’s ability to defend himself effectively.

We would summarize Pena’s side of the story, were it not for the fact that she has

not filed an appellate brief or otherwise appeared in this appeal. Other facts will

appear as they become pertinent to the analysis of the issues on appeal.

                          Recusal of Trial Court Judge

      In his first issue, Saldana contends that a pending recusal motion obligated the

trial court to stand down until the regional presiding judge ruled on the motion. He

filed a recusal motion before trial, but the trial court went ahead with the trial

anyway, which the recusal rule generally forbids. See TEX. R. CIV. P. 18a(f)(2)(A)

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(“If a motion is filed before evidence has been offered at trial, the respondent judge

must take no further action in the case until the motion has been decided, except for

good cause stated in writing or on the record.”); In re Rio Grande Valley Gas Co.,

987 S.W.2d 167, 179 (Tex. App.—Corpus Christi–Edinburg 1999, orig. proceeding)

(“Any order other than an order of recusal or referral, entered by a court after a

proper motion to recuse is entered is void.”). Thus, Saldana concludes that the trial

occurred during a time when the trial court had no jurisdiction.

      This argument would have more traction were it not for the statute governing

“tertiary recusal motions.” See TEX. CIV. PRAC. & REM. CODE § 30.016(a) (defining

“tertiary recusal motion” as “a third or subsequent motion for recusal or

disqualification filed against a district court . . . by the same party in a case”). Under

this statute—essentially a three strikes provision—a judge who faces a “tertiary

recusal motion” may move ahead to final disposition anyway. Id. § 30.016(b)

(providing that judge who declines to recuse after filing of tertiary recusal motion

“shall comply with applicable rules of procedure for recusal and disqualification,”

but judge “shall continue” to preside over case, sign orders in case, and “move the

case to final disposition as though a tertiary recusal motion had not been filed”). The

denial of such a motion is then reviewed only on appeal after a final judgment. Id.

§ 30.016(d).




                                            6
          When trial began, Saldana argued that no trial should occur because he had

filed a recusal motion and therefore the trial court “doesn’t have jurisdiction right

now.” After taking judicial notice that Saldana had filed a recusal motion

approximately two weeks before trial and the court had denied the motion, the trial

court then read aloud from section 30.016 and expressed an intention to move

forward “to final disposition as though the tertiary recusal motion has not been

filed.”

          Saldana did not deny filing prior recusal motions against other judges, but he

countered that he had not in fact filed three motions against this particular judge: “I

have not filed three recusals towards you. . . . It says judge, it doesn’t say judges.”

Thus, he now argues on appeal that he never “filed three separate recusals

concerning a single district court or judge.”

          Saldana’s argument runs afoul of Texas Supreme Court caselaw holding that

“section 30.016 applies to a third recusal motion filed by the same party against any

judge.” Gonzalez v. Guilbot, 315 S.W.3d 533, 539–40 (Tex. 2010). Under Gonzalez,

“a tertiary recusal motion is a third motion filed by the same party against any judge.

That is, the word ‘third’ in section 30.016(a) refers to the motion, not to the judge.”

Id. at 541; see Sibley v. Seminole Pipeline Co., No. 01-15-00775-CV, 2017 WL

491290, at *6 (Tex. App.—Houston [1st Dist.] Feb. 7, 2017, no pet.) (mem. op.)

(“By its plain language, however, the statute regarding tertiary recusal motions


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applies whenever a party has filed three or more recusal motions against any judge.”

(quotation omitted)).

      This reading of the statute controls the analysis. Saldana filed several prior

motions to recuse. He filed a recusal motion on October 11, 2021, which was denied

by the 257th District Court on October 14, 2021, and by the regional presiding judge

on October 15, 2021. He filed another one on October 19, 2021, which was denied

by the 257th District Court on October 28, 2021, and by the regional presiding judge

on November 22, 2021. Thus, by the time he filed the motion against the 309th

District Court at issue in this appeal, dated October 27, 2023, he had already filed

enough motions to recuse to make any ensuing motion subject to the tertiary recusal

motion statute.

      As a result, section 30.016(b) empowered the trial court to proceed with the

case rather than standing down and waiting to see whether the regional presiding

judge granted the motion. See TEX. CIV. PRAC. & REM. CODE § 30.016(b). We

therefore conclude that the trial court had jurisdiction to conduct the trial beginning

on November 14, 2023.

      To the extent Saldana also argues that the regional presiding judge abused her

discretion by denying his third recusal motion, we conclude that this complaint is

not meritorious. Saldana argues that the regional presiding judge’s order denying the

recusal motion was erroneous because the order stated that the motion did not


                                          8
comply with Rule 18a because it “complains mainly of the trial judge’s rulings and

actions in the case,” but Rule 18a provides that a recusal motion “must not be based

solely on the judge’s rulings in the case.” See TEX. R. CIV. P. 18a(a)(3) (emphasis

added). He contends that his recusal motion “presented multiple issues that were not

based solely on the judge’s rulings,” including concerns relating to alleged

intimidation by the bailiff, a threat of arrest, and a statement by the trial court that

Saldana’s “constitutional rights were not intact in the 309th court.”1

      Even if the regional presiding judge’s statement in its order was incorrect,

Saldana has not demonstrated that the judge abused her discretion by denying his

recusal motion. See TEX. R. CIV. P. 18a(j)(1)(A) (“An order denying a motion to

recuse may be reviewed only for abuse of discretion on appeal from the final

judgment.”); Drake v. Walker, 529 S.W.3d 516, 528 (Tex. App.—Dallas 2017, no

pet.) (“The movant bears the burden of proving recusal is warranted, and the burden

is met only through a showing of bias or impartiality to such an extent that the

movant was deprived of a fair trial.”); see also Dow Chem. Co. v. Francis, 46 S.W.3d

237, 240 (Tex. 2001) (per curiam) (“[J]udicial remarks during the course of a trial

that are critical or disapproving of, or even hostile to, counsel, the parties, or their




1
      In his recusal motion, Saldana argued that the trial court made the statement
      concerning his constitutional rights on August 23, 2023. No such statement by the
      trial court appears in the reporter’s record of the August 23, 2023 hearing.
                                           9
cases, ordinarily do not support a bias or partiality challenge.” (quoting Liteky v.

United States, 510 U.S. 540, 555 (1994))).

       We overrule Saldana’s first issue.

                                     Notice of Trial

       In his second issue, Saldana contends that he received inadequate notice of

the trial setting.

       In contested cases, Rule of Civil Procedure 245 requires “reasonable notice of

not less than forty-five days to the parties of a first setting for trial.” TEX. R. CIV. P.

245. On the other hand, Rule 245 only goes so far: “A written order is not required

when the record establishes that counsel for each party had adequate notice of the

date set for trial.” Guerra v. Alexander, No. 04-09-00004-CV, 2010 WL 2103203,

at *5 (Tex. App.—San Antonio May 26, 2010, pet. denied) (mem. op.); see also In

re M.M.M., No. 05-19-00392-CV, 2019 WL 4744694, at *4 (Tex. App.—Dallas

Sep. 30, 2019, pet. denied) (mem. op.) (“Notice may be either actual or constructive,

as long as it is reasonably calculated under the circumstances to apprise the party of

the pendency of the action and to provide an opportunity to present objections.”).

       These authorities about notice come into play because the record shows that

Saldana had notice of the November trial date well in advance of trial. Specifically,

the record indicates: (1) the trial court gave the case a preferential setting during the




                                            10
two-week period running from October 31, 2023, until November 14, 2023, and

(2) both sides knew it.

      First, in a hearing on August 23, 2023, Saldana expressed frustration that the

case had not gotten to trial. “I was ready to go April 25th. [Pena’s counsel] asked for

90 days. I let her have 90 days.” When asked to clarify whether he preferred a jury

trial, he said he wanted to think about it before trial in November: “Judge, can I get

a couple days to think about that? Because, again, we’ve moved it 45 days in

agreement, and then it got recused, and then now we’re pushing it until November.”

So he knew in August that trial would occur in November.

      Both sides then discussed the issue further with the court, which found a Rule

11 agreement calling for a bench trial. The hearing ended with the trial court

instructing Saldana to return to the courtroom on September 13 for proceedings on

a motion for enforcement.

      At the September 13 hearing, the trial date arose again. Saldana again showed

awareness of the trial date when Pena’s counsel began discussing the child’s medical

conditions: “Judge, I’m going to object to relevance. We’re here for a motion—for,

you know, terminate, and the trial is next month.” The court agreed and sustained

the objection. When opposing counsel suggested carrying a sanctions motion until

trial, the court asked about the date for the preferential trial setting and was told

October 31:


                                          11
      Pena’s Counsel:     Can we carry my motion for sanctions to the trial
                          date then, as well as my motion to terminate the
                          probation?
      The Court:          Yes.
      Pena’s Counsel:     Okay. Could I have him [Saldana] sworn to return
                          on those?
      The Court:          What is the trial date?
      Pena’s Counsel:     October 31st.
      Saldana:            I’ve been kicked down four times for trial. I’ve been
                          waiting on trial since 2020.

The court made it very clear that the case would go to trial:

      The Court:          Is it October 31st?
      Pena’s Counsel:     October 31st, November 1st, November 2nd and
                          then November 14th.
      The Court:          Y’all pref set?
      Pena’s Counsel:     We are pref set.
      The Court:          Mr. Saldana, you are pref set for court on October—
      Saldana:            Judge, I’m not playing your games. I’m going to
                          recuse. I’m leaving.
      The Court:          You’re pref set for October 31st for your trial. So
                          pref set means that you’re definitely going to go.

      These exchanges establish beyond doubt that Saldana had ample notice of the

trial date. Saldana wanted the case to go to trial, and he got exactly that. He had

actual notice in August and further notice on September 13, with each hearing

leaving him more than 45 days to prepare for trial. He received all he had a right to.

Under Rule 245, a trial court “may set contested cases on written request of any

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party, or on the court’s own motion, with reasonable notice of not less than forty-

five days to the parties of a first setting for trial, or by agreement of the parties . . . .”

TEX. R. CIV. P. 245; In re K.M.L., 443 S.W.3d 101, 118 (Tex. 2014).

       Saldana suggests that notice must appear by paper trail in the clerk’s record.

This suggestion is incorrect. First, any silence in the clerk’s record does not help

him; it does the opposite. Appellate courts presume that trial courts will only hear

cases upon proper notice to the parties. Hildebrand v. Hildebrand, No. 01-18-00933-

CV, 2020 WL 4118023, at *4 (Tex. App.—Houston [1st Dist.] July 21, 2020, no

pet.) (mem. op.); Osborn v. Osborn, 961 S.W.2d 408, 411 (Tex. App.—Houston [1st

Dist.] 1997, pet. denied). To rebut this presumption, an appellant must affirmatively

show a lack of notice, which generally requires affidavits or other competent

evidence showing that he did not receive proper notice. Hildebrand, 2020 WL

4118023, at *4.

       Second, and in any event, the hearing transcripts remove all doubt by showing

that he had notice of the trial date. He himself spoke of a November trial, and the

judge reiterated the timeline in open court.

       In a similar vein, a few pages of Saldana’s briefing seem to raise a process

complaint about the manner in which he learned about (1) the denial of his tertiary

recusal motion and (2) a nonsuit of a request for child support enforcement by

opposing counsel.


                                             13
      As to the former, he suggests that trial court personnel learned of the regional

presiding judge’s denial of the recusal motion before he did and he was informed of

the ruling via an email from the trial court coordinator before trial began, but the

written order denying the motion did not issue until after trial and “occurred in

conjunction with the filing of a Notice of Partial Non-Suit” by opposing counsel. In

his view, this “sequence of events raises pertinent questions regarding the timing and

implications” of these filings. Without deciding whether such questions are raised

or pertinent, we see nothing in this issue that would matter to the correctness of the

judgment. That is, we see neither any error nor any harm. See TEX. R. APP. P. 44.1(a)

(“No judgment may be reversed on appeal on the ground that the trial court made an

error of law unless the court of appeals concludes that the error complained of:

(1) probably caused the rendition of an improper judgment; or (2) probably

prevented the appellant from properly presenting the case to the court of appeals.”).

      As to the latter, Saldana does not show any trial error. He says that there is no

clerk’s record or reporter’s record “that legally and accurately corroborates the

existence of a non-suit or partial non-suit entered into the record.” He perceives

“profound concerns regarding the integrity of the proceedings and Mr. Saldana’s

right to a fair trial.” And he argues that “[t]his lack of documentation further

exacerbates the uncertainty surrounding the final trial proceedings and Mr. Saldana’s

rights.” Whatever one may think about such alleged uncertainty about a nonsuit,


                                          14
Saldana has not explained why any of it casts any doubt on the correctness of the

judgment.

      We overrule Saldana’s second issue.

                                   Trial Fairness

      Finally, in his third issue, Saldana complains about the fairness of the trial. As

noted earlier, Saldana characterizes the problem as a case of multiple bailiffs

ganging up aggressively to intimidate him, retaliate against him for his recusal

motion, and so forth. He says that as he attempted to present his position in a hearing

as a pro se litigant, the bailiff admonished him to be quiet when the judge was

speaking. In Saldana’s view, that started a downward spiral, resulting in Saldana

being charged with assault and placed in custody. When trial resumed the following

day, he was moved around in handcuffs and shackles. He argues that the

incarceration and restrictions on his movements hampered his ability to prepare for

trial and present his case. To ensure that we describe his position fairly, we will

quote from his brief:

      In the instant matter, the Appellant asserts that the trial court abused its
      discretion by compelling him to testify against himself while invoking
      his Fifth Amendment right in a judicial proceeding, without the benefit
      of legal counsel, and in the presence of his accusers, all under the
      authority of the Harris County Sheriff’s Department.
      Excluding the Motion to Recuse presented in Issue I and the Notice of
      Final Trial pertaining to Issue II, the documented instances of
      intimidation and abusive interactions with the Harris County Bailiffs in
      the 309th District Court created a volatile environment. The Appellant

                                          15
      was placed at an unfair disadvantage with the court due to his report of
      abuse by court officers in his Motion to Recuse regarding Judge Linda
      M. Dunson of the 309th District Court.

We construe this complaint as an argument that the trial court abused its discretion

in denying Saldana’s motion for new trial.

      We review a trial court’s denial of a motion for new trial for an abuse of

discretion. Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010). The

trial court had the responsibility of balancing a variety of factors in deciding

(1) whether to move forward with the trial as planned, and (2) whether to toss out

the result and order the case tried a second time. To begin with, the trial court had to

consider the need for a prompt ruling and some measure of closure. With each

passing day, the child would grow older, and neither parent could ever recoup that

lost time. The disputed events likewise moved further and further into the past,

making it more and more difficult to ascertain the historical facts. Further, the court

would have known from experience the human toll that family disputes can take on

everyone involved.

      On top of all this, the court lived through a trial in which it saw Saldana

representing himself with considerable skill. He put on a cogent case. He testified,

called witnesses, and did a very respectable job of examining and cross-examining

those witnesses. He presented an opening statement and a closing argument. The

trial court had a front row seat in seeing whether both sides had a fair trial. Early in


                                          16
the trial, Saldana recognized that he had perhaps lost his cool the day before when

the trial court expressed an intention to proceed despite the recusal motion, so he

apologized to the court before trial went to opening statements:

      Saldana:     Yes, ma’am. And one more thing. I’d just like to apologize
                   for everything. This is a very contentious case that—
      The Court: I understand. I’ve been here since you’ve been in this
                 court, so I understand.
      Saldana:     And I’m sorry. There’s probably no excuse for it. I’ll take
                   every bit of it. Sorry for my part.
      The Court: Apology accepted.
      Saldana:     Yes, ma’am.

The case then went forward with testimony from Pena, Saldana, Saldana’s mother,

and various other witnesses. We do not see the trial as being marred by any episodes

involving the Fifth Amendment; he objected twice based on the Fifth Amendment,

and both times the court ruled his way.

      As both the presiding judge and the finder of fact, the trial court had the right

to take all these things into consideration in deciding whether to order a new trial.

Our system places heavy responsibility on our front-line trial judges, who have to

deal with high stakes, frayed emotions, time pressures, and many other constraints.

Given the totality of the circumstances, the court acted within its discretion in

declining to go back to square one and hold a second bench trial. We will not second-




                                          17
guess that determination by ordering the case back to the same judge for a rematch

over the same issues that the parties already litigated for several days.

      We overrule Saldana’s third issue.

                                     Conclusion

      We affirm the judgment of the trial court.




                                               David Gunn
                                               Justice

Panel consists of Chief Justice Adams and Justices Gunn and Johnson.




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