law-recusal | motion to recuse the trial judge | bias partiality and impartiality | conflict of interest | disqualification |
RECENT TEXAS SUPREME COURT CASES RELATED TO RECUSAL
Motion to recuse 4 Justices of the Texas Supreme Court in
In Re Columbia Medical Center of Las Colinas (Tex. 2009),
No. 06-0416 (Tex. Jul. 3, 2009)(Majority Opinion by Johnson) (mandamus)
(majority opinion of 5 of 9 grants mandamus relief to order trial judge to give specific reasons for not entering
judgment on the verdict of the jury, and for grant of new trial; "in the interest of justice" no longer a sufficient
ground to support new trial, holds the majority)
O'Neills Dissent in Re Columbia Medical Center of Las Colinas (Tex. 2009),
See related Tex Parte Blog post on denial of the motion: We Don't Need No Stinkin' Recusal
PETITIONS DENIED IN CASES INVOLVING RECUSAL ISSUE(S)
APPEALING ADVERSE ORDER ON MOTION TO RECUSE THE TRIAL JUDGE
Interlocutory orders may be appealed only if permitted by statute. Bally Total Fitness Corp. v.
Jackson, 53 S.W.3d 352, 352 (Tex. 2001); Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272
(Tex. 1992) (orig. proceeding). An order denying a motion to recuse may be appealed as part
of the appeal from the final judgment or, in some cases, the party may be entitled to
mandamus relief. See In re Union Pac. Resources Co., 969 S.W.2d 427, 428-29 (Tex. 1998).
09-0261
JAY KENNEDY v. ANGELA M. JOHNSON; from Harris County; 14th district
(14-08-00692-CV, ___ SW3d ___, 02-05-09, pet. denied June 2009) (recusal, no appellate jurisdiction over
interlocutory order, finality of order required for ordinary appeal, DWOJ appeal dismissed)(no interlocutory
appeal from order denying motion to recuse the judge) (finality of order for purposes of appeal)
Appellee has filed a motion to dismiss, claiming that we lack jurisdiction because the order appellant is appealing
is a non-appealable order denying a motion to recuse. Generally, appeals may be taken only from final
judgments. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Interlocutory orders may be appealed
only if permitted by statute. Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex. 2001); Jack B.
Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992) (orig. proceeding). An order denying a motion to
recuse may be appealed as part of the appeal from the final judgment or, in some cases, the party may be
entitled to mandamus relief. See In re Union Pac. Resources Co., 969 S.W.2d 427, 428-29 (Tex. 1998).
09-0347 IN THE MATTER OF E.A.P.; from Bexar County; 4th district (04-08-00503-CV, ___ SW3d ___,
03‑11‑09)(DISQUALIFICATION OF DA RECUSAL OF JUDGE)
RECUSAL OF JUDGE PARKER In his third, fourth, and fifth issues, appellant raises the following complaints: his
due process rights were violated because Judge Parker did not recuse herself sua sponte, Judge Priest erred by
denying his motion to recuse Judge Parker, and Judge Parker's active participation during the motion to recuse
hearing required her recusal.
The Texas Code of Judicial Conduct requires judges to avoid the appearance of impropriety in all of the judge's
activities and "comply with the law and . . . act at all times in a manner that promotes public confidence in the
integrity and impartiality of the judiciary." Tex. Code Jud. Conduct, Canon 2A, reprinted in Tex. Gov't Code Ann.,
tit. 2, subtit. G app. B (Vernon 2005). The Texas Rules of Civil Procedure require a judge to recuse herself in
any proceeding in which her "impartiality might reasonably be questioned" or she "has a personal bias or
prejudice concerning the subject matter or a party, or personal knowledge of disputed evidentiary facts
concerning the proceeding." Tex. R. Civ. P. 18b(2).
At the recusal hearing, Judge Parker testified that prior to taking the bench, she had worked in the Bexar County
Criminal District Attorney's Office as an ADA. She admitted to being acquainted with Melisa Skinner, although
she had never met Ms. Skinner's husband or children. She and Ms. Skinner had never been assigned to the
same court during the time they both worked as ADAs and had never worked together in any capacity. Judge
Parker said she attended some of the same political events as Ms. Skinner and they both took the same group
trip to Las Vegas for the purpose of attending another ADA's birthday party. As to the underlying proceeding
against appellant, Judge Parker said ADA Khristina Fielder came to her office to tell her she did not think a trial
would be necessary because the case "was being worked out" and Ms. Fielder wanted her to know that one of
the three complainants was Ms. Skinner's son. Judge Parker said she told Ms. Fielder she had no problem "with
it," but she instructed Ms. Fielder to inform defense counsel "in case he had a problem with it." Finally, Judge
Parker testified her sentencing decision in appellant's case had nothing to do with her acquaintance with Ms.
Skinner.
In addition to Judge Parker's testimony, Judge Priest also heard testimony from appellant's trial attorney.
Counsel agreed that he never questioned Judge Parker's ability to be fair and impartial during the adjudication
and disposition hearing, "except when she pronounced sentence. [I]t was a lot more than what I thought that
[appellant] was going to get." Counsel said he did not know Judge Parker had been an ADA during the same
time period as Ms. Skinner.
We conclude appellant did not establish bias on Judge Parker's part; therefore, he did not establish that his due
process rights were violated. Accordingly, on this record, we conclude Judge Parker did not err by not sua
sponte recusing herself, and Judge Priest did not abuse his discretion in denying the motion to recuse Judge
Parker.
Finally, appellant concedes Judge Parker's testimony at the recusal hearing was not improper, but he asserts
her "active participation through counsel [at the recusal hearing] . . . raises the problem." Judge Parker was
subpoenaed and called to the witness stand by appellant's attorney. Therefore, she did not voluntarily inject
herself into the recusal proceeding. As to appellant's contention that she improperly secured the assistance of
an attorney to represent her at the recusal hearing, we cannot conclude, based on this record, that Judge
Parker acted improperly by seeking legal counsel. See In re Union Pacific Resources Co., 969 S.W.2d 427, 429
(Tex. 1998) (Hecht, J., concurring) ("But the relationship between judge and lawyer is of less concern, it seems
to me, when it involves no more than the lawyer's representation of the judge as a respondent in a mandamus
proceeding."); see also Rapp v. Van Dusen, 350 F.2d 803, 813 (3rd Cir. 1965) (en banc) (when the grounds for
recusal are extrinsic to the merits of a judicial act and are instead directed against the judge himself, the judge
as the respondent in a mandamus proceeding "may, without being required to do so, file an answer and contest
the petition and where appropriate, intervention by interested parties will be allowed.").SENTENCE In his final
issue, appellant asserts Judge Parker abused her discretion by imposing a determinate sentence of fifteen
years. A juvenile court possesses broad discretion to determine a suitable disposition for a child who has been
adjudicated as having engaged in delinquent conduct. In re K.J.N., 103 S.W.3d 465, 465 (Tex. App.--San
Antonio 2003, no pet.). A court abuses its discretion when it acts in an unreasonable or arbitrary manner, or
without reference to any guiding rules or principles. Id. at 466.
08‑0783 LAWRENCE W. FEW v. CATHERINE J. FEW; from El Paso County; 8th district (08-06-00234-CV, 271
SW3d 341, 08‑28‑08) As redrafted as amended
Recusal
In Issue No. Eight, Lawrence contends that the trial judge should have recused himself from the indigency
hearing. In Issue No. Ten, Lawrence contends that the trial judge "abused his discretion as a result of erring on
the application of all the TRAP rules involved because of his obvious involvement and vendetta against
appellant." We read Issue No. Ten as also raising the issue of recusal. The docket reflects that motions to
recuse the trial judge were filed on March 3, March 17, and September 21, 2006, and that an order concerning
the March 3 motion to recuse was issued on March 16, 2006. (4) However, the clerk's record does not contain
the March 17 motion, but only those filed after the hearing. Nor was the issue of recusal raised at the show
cause hearing. We cannot consider documents that are not included in the record. See Ceballos v. El Paso
Health Care Sys., 881 S.W.2d 439, 445 (Tex. App.--El Paso 1994, writ denied); Green v. Kaposta, 152 S.W.3d
839, 841 (Tex. App.--Dallas 2005, no pet.) (appellant's failure to include motion to recuse, order, or hearing
record in appellate record resulted in waiver of issue). Accordingly, the issue of recusal has been waived with
respect to this appeal. Issues Nos. Eight and Ten are overruled.
07-0612
ROY SEGER, ET AL. v. YORKSHIRE INSURANCE CO., LTD. AND OCEAN MARINE INSURANCE CO., LTD.; from
Hutchinson County; 7th district (07‑05‑00188‑CV, ___ SW3d ___, 06‑20‑07)
2 petitions, motion to consolidate dismissed as moot (insurance coverage dispute, Stower’s doctrine, recusal,
disqualification)
Recusal of Judge
Insurers contend that the denial of their motion to recuse Judge LaGrone was an abuse of discretion because,
as the judge that presided over the underlying trial, Judge LaGrone was a vital material witness in the Stowers
suit and had personal knowledge of disputed material facts. The denial of a motion to recuse is reviewed for
abuse of discretion. Brosseau v. Ranzau, 81 S.W.3d 381, 399 (Tex.App.-Beaumont 2002, pet. denied). Insurers
contend that the Segers' citation to Judge LaGrone's statement in the underlying trial transcript that "The Court
will call for trial in Cause No. 30,110, . . ." made Judge LaGrone a vital material witness in the Stowers action.
However, the complete transcript of the underlying proceeding, which includes the statement Insurers complain
of, was admitted into evidence in the Stowers action. Further, Judge LaGrone's calling the underlying proceeding
for trial did not constitute his participation "as . . . material witness in the matter in controversy." Tex. R. Civ. P.
18b(2)(d). Certainly, as addressed above, Insurers may refute Judge LaGrone's characterization of the
underlying proceeding as a "trial," but we do not conclude that the trial court abused its discretion in denying
Insurers' motion for recusal on this basis.
Additionally, Insurers contend that Judge LaGrone must have knowledge of disputed evidentiary facts regarding
whether the underlying proceeding was, in fact, a fully adversarial trial. However, Insurers fail to identify any
specific knowledge of disputed evidentiary facts purportedly held by Judge LaGrone. We will not find recusal
appropriate solely on the basis of speculation regarding facts that may or may not be known by the presiding
judge.
We overrule Insurers' challenge to the denial of their motion to recuse.
Disqualification of Counsel
Finally, Insurers contend that two attorneys in the Segers' counsel, Brian Heinrich and Joe Hayes, were
disqualified from representing the Segers in their Stowers action because each (1) were witnesses in the
Stowers action, see Tex. Disc. R. Prof. Cond. 3.08, and (2) were to be paid on a contingent basis, see Tex. Disc.
R. Prof. Cond. 3.04. The denial of a motion for disqualification is reviewed for abuse of discretion. See Metro.
Life Ins. Co. v. Syntek Fin. Corp., 881 S.W.2d 319, 321 (Tex. 1994). As both parties to the present dispute
acknowledge, the disqualification of counsel is a severe remedy, which is not to be invoked lightly. See In re Nitla
S.A. de C.V., 92 S.W.3d 419, 422 (Tex. 2002). Even if challenged counsel has committed a disqualifying act, the
party requesting disqualification must demonstrate that counsel's conduct caused actual prejudice. Id.
Assuming, without deciding, that Heinrich and/or Hayes were lawyer-witnesses such that they would be
disqualified from representing the Segers in the Stowers action, Insurers have failed to present any evidence
that they were harmed. Insurers cite a deposition of Professor Bob Schuwerk, which is not a part of the record,
as concluding that Heinrich and Hayes violated Rules 3.04 and 3.08 of the Texas Disciplinary Rules of
Professional Conduct. However, proof that an attorney violated a Rule of Professional Conduct, without a further
showing of harm, is insufficient to justify disqualification. Id. Nothing in Insurers' discussion of Schuwerk's
deposition identifies how they were harmed by any alleged violation of the Rules by either Heinrich or Hayes.
Insurers contend that the trial court took certain unrelated actions to avoid having to rule that Heinrich and
Hayes were disqualified to represent the Segers in the Stowers action, however, this contention is wholly
unsupported by evidence and is purely speculative. See Miller v. Hood, 536 S.W.2d 278, 285 (Tex.Civ.App.-
Corpus Christi 1976, writ ref'd n.r.e.) (presumption of regularity and validity of trial court rulings unless facially
invalid or invalidity shown in the record). Additionally, while Insurers contend that Hayes and Heinrich were
disqualified because they were witnesses whose payment was contingent upon the outcome of the case,
Insurers fail to identify any evidence establishing that Hayes or Heinrich were being paid on a contingent basis.
We overrule Insurers' issue regarding the denial of their motion to disqualify Hayes and Heinrich.
08-0284 ERNEST BUSTOS v. SCHWABE, WILLIAMSON & WYATT, P.C.; from Bexar County; 4th district (04-07-
00081-CV, ___ SW3d ___, 01-23-08)(suit by law firm against client over fees, DTPA counterclaim, motion to
recuse judge denied)
07-0831
RISCHON DEVELOPMENT CORPORATION AND JOHN HAWKINS v. RON WALKER AND MARLA WALKER; from
Tarrant County; 2nd district (02-05-00387-CV, 233 SW3d 380, 07-05-07, pet. denied Jan. 2008)
Appellants' Appeal from the Denial of Their Motion to Recuse
In a separately filed appeal, appellants complain of Judge Walker's order denying their motion to recuse Judge
Evans from the pending post-judgment supersedeas proceedings and of Judge Walker=s related sanctions
order.
An order denying a motion to recuse is an unappealable interlocutory order.[74] Specifically, rule 18a of the
Texas Rules of Civil Procedure provides that an order denying a motion to recuse may be reviewed only "on
appeal from the final judgment."[75] The rule does not address the appealability of an order denying a motion to
recuse that is filed after an appeal is taken from a final judgment.
Appellants contend that their appeal from the order denying the motion to recuse Judge Evans from the post-
judgment supersedeas proceedings is allowed under rule 18a because appellants have also appealed the trial
court's final judgment. Appellants' motion to recuse, however, does not complain of Judge Evans's participation
in any pre-appeal trial court proceedings affecting the final judgment. Instead, the motion seeks to recuse Judge
Evans from participating in post-judgment supersedeas proceedings based on conduct at the October 2006
supersedeas hearing that occurred after the appeal from the final judgment was filed. Therefore, while
appellants have appealed the order denying the motion to recuse during the pendency of the appeal from the
final judgment, the order is not reviewable "on appeal from the final judgment" because it had no effect on the
final judgment and was entered after the appeal from the final judgment was filed.[76]
Further, appellants are not seeking to have the order reviewed on appeal from a post-judgment order entered
by Judge Evans. The supersedeas issue remains pending before the trial court. Judge Evans has taken no
action under appellate rule 24.3(a) to modify the amount or type of security or to decide the sufficiency of the
sureties, and no party has contended that he has abused his discretion under rule 24.3(a).[77] Absent such a
ruling by Judge Evans, appellants have no basis to complain that Judge Walker's denial of their motion to recuse
has caused them prejudice.[78]
We hold that the post-judgment order denying appellants' motion to recuse may be reviewed by this court only
upon the filing of a motion under appellate rule 24.4 complaining of the trial court's exercise of its discretion
under rule 24.3(a). Because Judge Walker's order denying appellants' motion to recuse is an unappealable
interlocutory order and appellants have not brought a complaint under appellate rule 24.4 challenging Judge
Evans's exercise of his discretion under rule 24.3(a), we have no jurisdiction to review Judge Walker's order.[79]