disqualifications, recusals, and visiting judges...visiting judges preserving the integrity of the...
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Disqualifications, Recusals, and Visiting JudgesPreserving the Integrity of the Bench
Agenda
Disqualifications
Recusals
Assigning a Visiting Judge
Recusal is the act of a Judge or Prosecutor being removed or excusing one’s self from a legal case due to conflict of interest or other good reason.
Definitions
To divest or deprive of qualifications to render ineligible or unfit; to take away from someone the ability to do or play a part in something because that person is unsuitable or has done something wrong:
DISQUALIFY
RECUSAL
Texas Constitution,
Article 5, Section 16
Sec. 16. COUNTY COURTS: JURISDICTION; COUNTY JUDGE POWERS; DISQUALIFICATION OF COUNTY JUDGE. The County Court has jurisdiction as provided by law. The County Judge is the presiding officer of the County Court and has judicial functions as provided by law. County court judges shall have the power to issue writs necessary to enforce their jurisdiction.
County Courts in existence on the effective date of this amendment are continued unless otherwise provided by law.
When the judge of the County Court is disqualified in any case pending in the County Court the parties interested may, by consent, appoint a proper person to try said case, or upon their failing to do so a competent person may be appointed to try the same in the county where it is pending in such manner as may be prescribed by law.
Code of Crim. Procedure, Art.
30.01
No judge or justice of the peace shall sit in any case where he may be the party injured, or where he has been of counsel for the State of the accused, or where the accused or the party injured may be connected with him by consanguinity or affinity within the third degree, as determined under Chapter 573, Government Code.
Texas Rules of Civil Procedure
These rules apply to criminal cases. See,
for example, DeBlanc v. State, 799 S.W.2d 701 (Tex. Crim. App.
1990); Arnold v. State, 853 S.W.543 (Tex. Crim. App. 1993)
Rule 18a: Recusal and Disqualification of
Judges
Party may file motion for recusal, if judge doesn’t recuse himself/herself, then the presiding judge assigns someone to hear the motion.
Until decided, take no action except for “good cause” stated in writing or on the record.
Rule 18b:Grounds for Recusal and Disqualifications of Judges
(a) Grounds for Disqualification
(b) Grounds for Recusal
(c) Financial Interests
The courts also apply Rule 18b in criminal cases. See, for example, Rhodes v. State, 357 S.W.3d 796
(Tex. App.—Hou.[14th] 2011, no pet.)
Rule 18b(a): Grounds for
Disqualification
(a) Grounds for Disqualification. – A judge must disqualify in any proceeding in which:
(1) The judge has served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter;
(2) The judge knows that, individually or as a fiduciary, the judge has an interest in the subject matter in controversy; or
(3) Either of the parties may be related to the judge by affinity or consanguinity within the third degree.
Texas Government Code Chapter 573, Subchapter B:
Relationships by Consanguinity or by Affinity
Individuals are related by consanguinity if one is a
descendant of the other, or if they share a common ancestor. ... Approval must be obtained if
the relationship is within the third
degree by consanguinity (blood) or within the second degree by
affinity (marriage).
Third Degree by Consanguinity
Rule 18b(b):Grounds for
Recusal
A judge must recuse in any proceeding in which:
1) the judge’s impartiality might reasonably be questioned;
Rule 18b(b): Grounds for Recusal
A judge must recuse in any proceeding in which:
2) the judge has a personal bias or prejudice concerning the subject matter or a party;
Rule 18b(b):Grounds for
Recusal
A judge must recuse in any proceeding in which:3) the judge has personal knowledge of disputed
evidentiary facts concerning the proceeding;
Rule 18b(b): Grounds for Recusal
A judge must recuse in any proceeding in which:4) the judge or a lawyer with
whom the judge previously practiced law has been a material witness concerning the proceeding;
Rule 18b(b):Grounds for
Recusal
A judge must recuse in any proceeding in which:
5) the judge participated as counsel, adviser, or material witness in the matter in controversy, or expressed an opinion concerning the merits of it, while acting as an attorney in government service;
Rule 18b(b):Grounds for
Recusal
A judge must recuse in any proceeding in which:
6) the judge knows that the judge, individually or as a fiduciary, or the judge’s spouse or minor child residing in the judge’s household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
Rule 18b(b): Grounds for
Recusal
A judge must recuse in any proceeding in which:
7) the judge or the judge’s spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
(A) Is a party to the proceeding or an officer, director, or trustee of a party;
(B) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding; or
(C) Is to the judge’s knowledge likely to be a material witness in the proceeding.
Rule 18b(b): Grounds for RecusalA judge must recuse in any proceeding in which:
8) the judge or the judge’s spouse, or a person within the first degree of relationship to either of them, or the spouse of such person, is acting as a lawyer in the proceeding.
Rule 18b(c): Financial Interests
A judge should inform himself or herself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself or herself about the personal financial interests of his or her spouse and minor children residing in his household.
Rule 18b(d): Terminology and Standards
(d)(4) “financial interest” means ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party, except that:
Rule 18b(d) Exceptions
(a) Ownership in a mutual or common investment fund that hold securities is not a “financial interest” in such securities unless the judge participates in the management of the fund;
(b) An office in an educational, religious, charitable, fraternal, or civic organization is not a “financial interest” in securities held by the organization;
(c) The proprietary interest of a policyholder in a mutual insurance company, of a depositor in a mutual savings association, or a similar proprietary interest, is a “financial interest” in the organization only if the outcome of the proceeding could substantially affect the value of the interest;
(d) Ownership of government securities is a “financial interest” in the issuer only if the outcome of the proceeding could substantially affect the value of the securities;
(e) An interest as a taxpayer or utility ratepayer, or any similar interest, in not a “financial interest” unless the outcome of the proceeding could substantially affect the liability of the judge or a person related to him within the third degree more than other judges.
A judge is presumed to be qualified.Rule 18b(e) Waiving a Ground for Recusal. – The parties to a proceeding may waive any ground for recusal after it is fully disclosed on the record.
Recusal can be waived, disqualification cannot be waived.McElwee w. McElwee, 911 S.W.2d 182 (Tex. App.-Hou.[1st] 1995)
If a judge is disqualified then any action the judge takes is void and subject to collateral attack.
Rule 18b(f) Discovery and Divestiture.
If a judge does not discover that the judge is recused under subparagraphs (b)(6) or (b)(7)(B) until after the judge has devoted substantial time to the matter, the judge is not required to recuse himself or herself if the judge or the person related to the judge divests himself or herself of the interest that would otherwise require recusal.
Texas Gov’t Code Section 26.011: Assignment of Visiting Judge
If a county judge is absent, incapacitated, or disqualified in a civil or criminal case, the presiding judge shall appoint a visiting judge to hear the case in accordance with Subchapter C, Chapter 74*.
*Texas Gov’t Code, Chapter 74, Subchapter C, governs Administrative Judicial Regions, of which there are 11 in Texas, each led by a presiding judge who is a current, former, or retired district judge.
Probate, Guardianship and Mental Health Matters
Texas Gov’t Code Sec. 26.012. ASSIGNMENT OF VISITING JUDGE FOR PROBATE, GUARDIANSHIP, AND MENTAL HEALTH MATTERS.If the county judge is absent, incapacitated, or disqualified to act in a probate, guardianship, or mental health matter, a visiting judge shall be assigned in accordance with Texas Gov’t Code Section 25.0022(h): Statutory County Courts, Administration
Texas Gov’t Code Sec. 25.0022(h) [in relevant part]
(h) A judge or a former or retired judge of a statutory probate court may be assigned to hold court in a statutory probate court, county court, or any statutory court exercising probate jurisdiction when:
(5) The presiding judge of an administrative judicial district requests the assignment of a statutory probate judge to hear a probate matter in a county court or a statutory county court;
Texas Gov’t Code Sec. 26.015. VISITING JUDGE TO TAKE OATH
In addition to any oath previously taken, a person appointed as a visiting judge of a constitutional county court, including a person who is a retired, former, or active judge, shall take the oath of office required by the constitution. (emphasis added)
Appointment of Visiting Judges
Counties WITHOUT a Statutory County CourtTexas Gov’t Code Section 26 Subchapter C
• § 26.021: Application of Subchapter• § 26.022: Appointment for Particular Matters• § 26.023: Appointment for Absence of Judge• § 26.024: Appointment to Share Bench• § 26.026: Compensation of Visiting Judge• § 26.027: No Administrative Powers• § 26.028: Attorney Recommendations
Texas Gov’t Code Chapter 26: Constitutional County CourtsSec. 26.021. APPLICATION OF SUBCHAPTERThis subchapter applied only to a county in which:(1) There is no statutory county court at law or
statutory probate court; and (2) All duties of the county court devolve on the
county judge
Texas Gov’t Code Sec. 26.022 APPOINTMENT FOR PARTICULAR MATTERS
The county judge for good cause may at any time appoint a visiting judge with respect to any pending civil or criminal matter.
The visiting judge may be appointed on motion of the court or on motion of any counsel of record in the matter. Each counsel of record is entitled to notice and hearing on the matter.
To be appointed a visiting judge, a person must be agreed on by the counsels of record, if the counsels are able to agree.
The motion for appointment and the order appointing the visiting judge shall be noted on the docket. A written motion or order may be filed among the papers of the case.
The visiting judge has the powers of the county judge in relation to the matter involved.
Relevant Case Law for Appointments
Williams v. State, 677 S.W.2d 584 (Tex. App.-San Antonio 1984). Error in appointing special judge not in compliance with statutory authority, required reversal.
Saylors v. State, 863 S.W.2d 769 (Tex. App.- Waco 1992). Hill County case. Judgement rendered by Special judge who has not been appointed or selected in accordance with constitutional and statutory requirements governing such matters is an absolute nullity.
Applied to probate matters according to Attorney General Opinion H-1132.
Texas Gov’t Code Sec. 26.023Appointment for Absence of Judge
(a) The county judge may appoint a retired judge or a constitutional county judge from another county as a visiting judge when the county judge is absent from the county or absent because of physical incapacity. (emphasis added)
(b) The visiting judge shall sit in all matters that are docketed on any of the county court’s dockets and has the powers of the county judge in relation to the matter involved.
(c) Without the consent of the commissioners court, visiting judges appointed under this section may not sit for more than 15 working days during a calendar year.
(d) The order appointing the visiting judge shall be noted in the docket of the court.
Texas Gov’t Code Sec.
26.024Appointment
to Share Bench
(a) The county judge may appoint a retired judge or a constitutional county judge from another county as a visiting judge to share the bench if the county judge finds that the dockets of the county court reflect a case load that the county judge considers to be in excess of that which can be disposed of properly in a manner consistent with the efficient administration of justice.
(b) The visiting judge may share the bench for periods authorized by the commissioners court.
(c) The visiting judge shall sit in those matters authorized by the county judge and has the powers of the county judge in relation to those matters.
(d) The order appointing the visiting judge shall be noted on the docket of the court.
Texas Gov’t Code Sec 26.026Compensation of Visiting
Judges
A visiting judge appointed under this subchapter is entitled to compensation from the commissioners court for each day the judge sits as visiting judge at the rate according to law.
Texas Gov’t Code Sec 26.027No administrative powers
A visiting judge appointed under this subchapter does not have the powers of the county judge as a member and presiding officer of the commissioners court or the powers of the county judge relating to the general administration of county business.
Texas Gov’t Code Sec 26.028Attorney Recommendations
The county judge shall consider the recommendations of attorneys of the court as to the implementation of this subchapter and the accomplishment of its purposes.
