Texas: Recuse the Criminal Trial Judge (Advanced #1)

(Court of Criminal Appeals Jurisprudence)

YouKnowItAll.com

©2004 A. Hawkins

Suitability

This course is suitable for serious students of the law. Interest is more important than experience.

Scope

This is part of a cluster of courses on recusation, objection, and disqualification of judges in Texas state courts. We recommend that you take the introductory course first, or at least that portion of the introductory course that covers the difference between recusation, objection, and disqualification. This is one of two courses on criminal court recusation. The other criminal court recusation course covers the Court of Appeals opinions. The Court of Criminal Appeals is the highest Texas criminal court. This courts of appeals are the intermediate level courts. It is best to take both courses. The Court of Criminal Appeals has not handled recusation well. Sometimes the courts of appeals have done a better job. The courts of appeals handle civil and criminal cases. The recusation rules are the same, but they are applied differently in civil and criminal cases. In Texas civil cases, the litigant's right are taken more seriously than in Texas criminal cases, at least with respect to recusation.[1] The courts of appeals handles both civil and criminal cases and sometimes give the criminal defendant the higher level of due process that is afforded the civil litigant. Because of the difference between civil and criminal cases, a criminal lawyer who chooses to argue that the civil due process must be given to criminal defendants should take the civil recusation courses and note the differences. One of you might want to make a state or Federal case out of that difference. Others may wish to take the civil courses in order to know how the law is applied in civil cases so you better understand the application in criminal cases.

Cases are in chronological order so you can see the development of the law. You may wish to take the Court of Appeals course at the same time you take this course, switching back and forth to have all cases in chronological order, or you may wish to refer to one course while taking the other, so you can see how it all fits together.

Three court of appeals cases are included in this Court of Criminal Appeals course instead of the other course because the cases resulted in opinions by both courts and having them in this course allows us to keep them together. In addition, Chavez, from the El Paso Court of Appeals is included with the Woodard Court of Appeals opinion to which it responds.

Ethics and professional responsibility issues abound. As you study, consider whether a lawyer has a duty to file a motion to recuse or a duty not to file. Consider how explicit the criticism of the judge must be. Consider whether the judge will attempt to "get even" with you or your client. Consider whether a grievance may be filed against you for either filing a motion, or failing to file a motion. Consider the ethical, malpractice, and disciplinary risks of procedural errors. Consider the possibility of the court imposing sanctions against you for filing a motion to recuse. Consider whether failure to file, or properly file, or properly present and argue, a motion to recuse constitutes ineffective counsel. Consider the position of a lawyer who contemplates filing a motion to recuse the trial judge who appointed the lawyer to represent an indigent defendant, and the conflict of interest since the judge controls the lawyers fee and future appointments. Yikes!

The Process

1. Study this text.

2. When you finish this text, go to www.YouKnowItAll.com to observe the discussion. There, you may choose to ask questions or make comments, or you may choose to just observe any discussion posted by others.

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4. YouKnowItAll.com provides a certificate of your attendance with the course name, course number, and the CLE credit hours you earned. If you are in the Texas bar, we report your credit to the State Bar of Texas. If you are in another bar and need something else, let us know.

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This course is primarily a case study which relies on the words of the courts which are quoted so that you may read them yourself. The teacher has selected quotations, deleted original emphasis, added the authors emphasis, and moved citations to footnotes. Commentary by the teacher is included in the text and in footnotes. Five asterisks ( * * * * * ) identify each new case, If a case doesn’t interest you, just search for * * * * * to find the next one. This also helps if you wish to go back to reread a case.

There are three kinds of footnotes.

1. Footnotes by the court retain the court’s original number. Our footnote is a footnote to that number.

2. Footnotes that move citations to the footnotes are intended to make the material more readable. Our footnote has the court’s citations.

3. Footnotes that contain some of the author’s commentary.

If you read this course online, your browser will probably let you click on a footnote number to go to the footnote and click on the number in the footnote to return to the text. Some browsers will show the footnote if you hold your curser over the footnote number without clicking If you print the text, you may wish to staple the footnotes separately so you may easily refer to them. They are at the end because of technicalities of the internet. This is a Microsoft Word document displayed as a web page. You may copy it into a word processor to print it if you like. If you have any problems, let us know.

Optional Telephone Conference

The teacher is available for an optional personal telephone conference on the substance of this course. If you have a question about the application of the material in this course to a particular case, or would just like to visit about this topic, you may do so. A brief basic phone conference is $20 per course. If you would like to schedule a phone conference, email or call YouKnowItAll.com.

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Table of Contents

Court of Criminal Appeals

McClenan v. State 661 S.W.2d 108 (Tex.Crim.App. 1983) (en banc)

Milsap v. Lozono 692 S.W.2d 470 (Tex.Cr.App.1985) (en banc)

DeBlanc v. State 799 S.W.2d 701 (Tex.Crim.App. 1990)

Kemp v. State 846 S.W.2d 289 (Tex.Crim.App. 1992)

Arnold v. State 853 S.W.2d 543 (Tex.Crim.App. 1993)

Arnold v. State 778 S.W.2d 172 (Tex.App.-Austin 1989) (Same case)

Woodard v. Eighth Court of Appeals 991 S.W.2d 795 (Tex.Crim.App. 1998) (en banc) (Same Case as Sanchez)

Sanchez v. State 926 S.W.2d 391 (Tex.App.-El Paso 1996) (Same Case as Woodard)

In re Chavez August 13, 2003 (TexApp8 El Paso 2003)(en banc) (Mandamus)(Justices of the El Paso Court of Appeals respond to Woodard.)

Westbrook v State 29 S.W.3d 103 (Tex.Crim.App. 2000)

Hull v. State (Tex.Crim.App. 2002) January 30, 2002

Hull v. State[2] 29 S.W.3d 602 (Tex.App.-Houston [1st Dist.] 2000) Same case

Freeman v. State November 5, 2003 (Tex.Crim.App. 2003)

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Texas: Recuse the Criminal Trial Judge (Advanced #1) (2002-3)

(Court of Criminal Appeals Jurisprudence)

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Beware: Recusation applies to both civil and criminal cases. That does not mean that the law is the same. The Supreme Court and Court of Criminal Appeals have created differing rules by interpreting the same law and rules differently.

Tips: First check to see whether a case is a civil case or a criminal case. Do not cite a civil case in a criminal case or a criminal case in a civil case without considering the differences in the line of cases that govern each.

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Legal Ethics, Discipline, and Self Interest

Recusation is a trap for ethical lawyers. Ethics and professional responsibility issues abound. When recusation is warranted and in the interest of the client, the interest of the client and the interest of the lawyer conflict. A motion to recuse a judge is not in the lawyer’s interest.

First, consider a defendant’s desire to use a motion to recuse for improper purposes, such as delay for the sake of delay. The defendant may insist upon such a motion. May the lawyer refuse to file it? If so, what steps must the lawyer take? Is the answer the same for an appointed lawyer as for a privately retained lawyer? Is it the same for a lawyer who was appointed by that judge? May the lawyer withdraw or report the conflict to the court? Must the lawyer do so? Are your answers the same if the defendant’s desire is for a change of judge because the presiding judge is a “hanging judge” and the likely alternative judge is a “bleeding heart?”

Second, consider a situation in which recusation is fully justified because a judge is personally biased against a defendant. The judge may be determined to use judicial power to inflict harm upon the defendant for personal reasons. The facts may be personal and difficult. For example, they may involve sexual activities of the judge or the judge’s family with the defendant. Consider the difference in the self interest of the lawyer and the self interest of the defendant if the facts involve sexual relationships between the defendant and the spouse, parent, or child of the judge. The interest of the defendant might be served by a specific, clear, explicit, and uninhibited motion to recuse. That may be what effective representation of the defendant requires. It is not in the lawyer’s interest. The judge will not like it. The presiding judge of the administrative region will not like it. A judge who is appointed to consider the motion will not like it. Other judges will not like it. If you are the lawyer, what do you do? You may not have long to decide. If you leave out the details, the motion might be denied. The disciplinary rules may prohibit you from contacting the judge informally. The judge may control your fees and your future. Unfortunately, this situation is not hypothetical or overstated.

A lawyer may withdraw, but the same situation will confront the lawyer’s successor. A lawyer will have to deal with it, either by filing a motion, or by refusing to file a motion. If a motion is filed, the wording of the motion, the discovery sought, and the evidence offered, are difficult professional challenges.

A few judges note the problem. Judge Johnson’s dissent in Hull does so. As you study the recusation cases, consider the legal, ethical, disciplinary, and liability implications, as well as the issue of whether the defendant had effective representation.

If a motion was vague, consider that it might have been vague because the facts are weak, or it might have been vague because the facts are too powerful.

It is hard to imagine a situation in which a motion to recuse is in the lawyer’s self interest. Sometimes it is not in the defendant’s interest.

Sometimes a motion to recuse is in the defendant’s interest, but not in the lawyer’s interest. Keep the lawyer’s ethical, professional, and moral position in mind as you read Hull and the other cases in this difficult area.

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Issues: The court confuses disqualification and recusation. The statute (then 200a) applies to criminal cases, but the court disregards the statutory mandate. Three judges dissented.

McClenan v. State 661 S.W.2d 108 (Tex.Crim.App. 1983) (en banc)

“. . . Appellant elected before trial to have the trial judge assess punishment in the event he was found guilty by the jury. After the jury was impaneled but before the trial began the judge informed appellant's counsel that he could not consider probation if certain facts concerning the offense were proven. Appellant's counsel immediately moved that the judge declare a mistrial or recuse himself because he could not consider the full range of punishment. Appellant contends that the trial judge should have been recused for bias against the range of punishment allowed by law.

“In the past we have held that bias or prejudice not based upon interest is not a legal disqualification.[3] In fact, the long established grounds for disqualification have been stated to be exclusively and inclusively the restrictions set forth in Art. 5, § 11 of the Texas Constitution.[4] Art. 5, § 11 provides:

“No judge shall sit in any case wherein he may be interested, or where either of the parties may be connected with him, either by affinity or consanguinity, within such a degree as may be prescribed by law, or when he shall have been counsel in the case."

“Appellant asks that we overrule Vera . . . and those cases ruling out bias as a legal disqualification. We agree and overrule Vera . . . and other cases holding that an allegation of bias is in no case a legal disqualification. However, we limit the use of bias as a ground for disqualification to those cases in which the bias is shown to be of such a nature and to such an extent as to deny a defendant due process of law.

“Appellant suggests a standard for determining whether bias requires the court's recusal. Under that standard, a movant must show that if a reasonable man knew of all the circumstances, he would harbor doubt about the judge's impartiality.[5]

“In examining the circumstances of this case we find that even under appellant's suggested standard he has not shown bias on the part of the trial judge. The judge, who has the discretion to grant or deny probation, essentially informed appellant's counsel that if certain facts were proved and other mitigating facts not proved, he would not grant probation:

“‘THE COURT: Mr. Heard, I believe it was this morning that I advised you that after the opening statements or the voir dire examination, it appeared that the Defense was taking only one position, that was no guilt.

“MR. HEARD: Yes, sir.

“THE COURT: Apparently did withdraw from consideration some possibilities that I said that would be considered by me for probation in such a case and that would be under a state of intoxication or some other reason that the person was not acting under the normal influences that the person would occupy.

“MR. HEARD: Yes, sir.

“THE COURT: And the other was based on the statements of the State of what they anticipated to prove. As I advised you that if these facts were shown, and if the Defendant was found guilty, then I did not feel that I could grant probation in this case.

“.... Again, at this point, the Court's in a position that there are cases of this type offense that I feel I could grant probation. However, I feel that from your voir dire examination you have, as far as I can imagine at this time eliminated any of those possibilities. And of course, if offense is proved and the Defendant found guilty as the facts allege by the State, then it is a case that I advised you I could not grant probation."

“These statements are analogous to those of a juror who states that he could consider the minimum punishment in a proper case, not any particular case. Such a juror is not subject to challenge for cause for bias against the range of punishment and neither is a trial judge subject to recusal for the same statement.[6]

“A court's arbitrary refusal to consider the entire range of punishment would constitute a denial of due process, so appellant's motion did allege a proper ground for recusal. But the record before us demonstrates that the trial judge was not shown to be biased.

“To prevent further confusion regarding the court's duty when presented with a facially proper motion to recuse, we shall address the applicability of Art. 200a, § 6, V.A.C.S. to the present case. It states in part: "A district judge shall request the Presiding Judge to assign a judge of the Administrative District to hear any motions to recuse such district judge from a case pending in his court." We agree with the court of appeals that Art. 200a, § 6 applies to criminal cases in the absence of any explicit or implicit legislative intent indicating otherwise. 1[7] Before Art. 200a, § 6 is brought into play in criminal cases an obvious prerequisite is that the motion for disqualification must be prima facie adequate: the motion must allege proper grounds upon which a recusal could be sought in the first place. 2[8] "Any motion" does not include a motion which does not even allege proper grounds for recusal. Since we find that Appellant's motion based on bias as to the range of punishment is a proper ground, Art. 200a, § 6 should have been followed and another judge should have heard the motion. The duty of Art. 200a, § 6 is mandatory when a proper motion to recuse is before the trial judge. 3[9] The trial judge erred in not following Art. 200a, § 6. However, because we find that the record before us is complete and that no bias is shown even under appellant's reasonable man standard, we affirm the conviction and decision of the court of appeals.

Judge Clinton, dissenting, joined by Judges Teague and Campbell

“The majority holds that "[t]he trial judge erred in not following Art. 200(a), § 6." That holding is correct. McLeod v. Harris, 582 S.W.2d 772 (Tex.1979):

“We conclude that under the express terms of Article 200a, Section 6, Judge Harris had the mandatory duty to request the Presiding Judge of the Second Administrative District to assign another district judge to hear relator's motion to recuse."[10] . . .

“Notwithstanding, however, the majority excuses breach of such mandatory duty on its own supposition that "the record before us is complete" and does not show bias. Thus, contrary to the very purpose of § 6 and the essential function of having an assigned judge "to hear any motions to recuse" and rule thereon, the majority accepts that which the Legislature expressly rejected in amending § 6, viz:

"It is probably asking too much of judicial impartiality to expect a judge to rule objectively on a motion that he disqualify himself from a cause if he has not already recused himself voluntarily.... A judge should not be placed in the position or be given the opportunity to rule in such cases. ...." 2[11]

“Because the majority refuses to enforce a legislative mandate that was not followed, I respectfully dissent. 3[12]

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Issues: This is an indescribable case that must be savored. The Court begins to comprehend recusation.

Milsap v. Lozono 692 S.W.2d 470 (Tex.Cr.App.1985) (en banc)

“. . . The issue is involved in a highly unusual fact situation--a multi court situation--a real believe it or not with due apologies to Ripley.[13] . . .

“. . . Joe D. Neaves, III was charged with the penal offense of driving while intoxicated in County Court at Law No. 4 of Bexar County in Cause No. 311990. His first 1[14] jury trial in said court on said charge commenced on January 15, 1985. During the trial the court granted Neaves' motion for mistrial. 2[15] The case was reset for March 4, 1985. On February 27, 1985, Neaves, less than 10 days before the new trial date, filed a motion to recuse Judge Jay Miller, the duly acting and elected judge of County Court at Law No. 4. Said motion referred to the basis for the earlier mistrial, see footnote No. 1, and asserted Judge Miller was guilty at the first trial of "neglect of duty" under Article 2.03 . . . in permitting the prosecutor to refer to the defendant's presumption of innocence as "fiction," alleged "insubstantial grounding of Judge Miller in basic tenets of rudimentary law," and made reference to the complaint pending before the State Judicial Conduct Commission regarding Judge Miller's conduct at the first trial filed by counsel for the defendant Neaves.

“The recusal motion prayed "the Trial Judge request the Presiding Judge in Bexar County, Texas, to assign a judge of one of the County Courts at Law of Bexar County, Texas, to hear this motion to recuse said Trial Judge from this case, and, upon a hearing grant the defendant's Motion to Recuse and Disqualify the Trial Judge."

“Judge Miller declined to recuse himself, and on the same date, February 27, 1985, a "Case Setting Form" for a hearing on the motion to recuse was filled out setting a hearing on said motion in County Court at Law No. 1 of Bexar County on March 1, 1985. The form was not signed by any judge. It was signed by the prosecutor. The bailiff in County Court at Law No. 4 signed for the defendant adding after his signature "Leo refused to sign" apparently referring to Leo Dougherty, counsel for Neaves.

“On February 28, 1985, counsel for Neaves presented a "Motion and Order for Assignment of Defendant's Motion to Recuse or Disqualify Judge" to R. Robert Lozano, Judge of the County Court at Law No. 6 of Bexar County and "acting as Criminal Presiding Court of Bexar County."

“Said motion informed Judge Lozano of the filing of the recusal motion and assignment of the motion to another court and claimed the "Case Setting Form" was a nullity. Judge Lozano as "Judge of the Criminal Presiding Court" was requested to hear the motion to recuse Judge Miller or assign the motion to another county court at law. Judge Lozano set the motion for a hearing in his court on March 12, 1985, and ordered all proceedings in Cause No. 311990 in the County Court of Law No. 4 suspended until disposition of the recusal motion.

“The next day, March 1, 1985, Judge Anthony Ferro of County Court at Law No. 1 of Bexar County conducted a hearing on the motion to recuse. The defendant Neaves was not present nor was his lead counsel, Leo Dougherty. It appears co-counsel, Robert Valdez, was asked to step into the courtroom from the hallway as he passed by. Judge Ferro overruled the motion, finding Judge Miller qualified.

“Although the record is not as clear as it could be, it appears that on March 4, 1985, the defendant Neaves failed to appear for trial in County Court at Law No. 4. Judge Miller ordered the bond forfeited and Neaves arrested. It appears Neaves was located in his attorney's office and brought to the courtroom. About this time Neaves' attorney presented an order to Judge Miller from the Fourth Court of Appeals granting Neaves' motion for leave to file a petition for writ of prohibition and issuing a Temporary Restraining Order to Judge Miller requiring he take no further judicial action in the cause which might affect the subject matter of the action pending an inquiry into the propriety of the issuance of a writ of prohibition. Neaves was ordered to county jail by Judge Miller and was taken to the Sheriff's office. It then appears Neaves' counsel obtained a writ of habeas corpus from the 187th District Court ordering Neaves' release on bond pending a hearing in that court. 3[16] Neaves was released. Later in the day on March 4, 1985, the Court of Appeals issued an order withdrawing its former action for the want of jurisdiction. It appears that subsequently Judge Miller and Judge Priest of the 187th District Court conferred, and Neaves and his counsel were advised by Judge Priest to be in Judge Miller's court the next day, March 5, 1985. On that date, the second trial of Neaves commenced in County Court at Law No. 4. Neaves was found guilty by a jury and punishment was assessed by Judge Miller, who presided at the second trial, at 45 days in county jail and a fine of $500.00. Formal sentencing was then deferred to April 19, 1985.

“On March 12, 1985, after the completion of the second trial, Judge Lozano of County Court at Law No. 6, conducted a hearing on the motion to recuse Judge Miller which he had previously set. At the hearing Neaves called witnesses as to news stories published during the second trial and attributed by reporters to interviews with Judge Miller. There was also testimony as to a television interview of Judge Miller while in his robes and in view of the jurors in the second trial, the judge's conduct prior to holding defense counsel Dougherty in contempt, his conduct with co-counsel Valdez after the adjournment of court on one day during the trial, and his placing certain individuals under the Rule who were not fact witnesses. A transcription of the court reporter's notes from the first trial indicating the prosecutor's remark during voir dire examination about the presumption of innocence and the court's ruling thereon was offered.

“Throughout the hearing the State argued Judge Lozano was without jurisdiction to entertain the motion.

“At the conclusion of the hearing Judge Lozano made the following oral ruling:

“THE COURT: On this motion, which is cause or case No. 311,990, the Motion and Order For Assignment of Defendant's Motion To Recuse or Disqualify Judge, I'm going to at this time grant the motion. And I want to state that I'm doing this because it puts me in one hell of a spot to recuse a judge that is on the same level and has the same jurisdiction that I do.

“As to the jurisdiction for the hearing itself, I am going to quote 18a, which says 'in any court.' And as to the opening and the mootness of this, I'm going to follow 3712, the first sentence. And that's going to be the ruling of the Court.

“Now, let me state further, for the record, that there's no way in the world that I can find in the law books that allows me, as a county judge, to enforce this recusal order, and I'm not going to make any statements about this matter, because I feel sure it's not through, and that--whatever way, I would have ruled it would be going up, anyway.

“So if that's it that's it, but I'm not going to make any statements, because I think this thing has more ramifications than you can shake a stick at. Okay, sir.

“MR. DOUGHERTY: We've prepared an order, Your Honor.

“THE COURT: Okay. Somebody better.

“MR. DOUGHERTY: Yes, sir."

“Thereafter the relator filed his original application for writ of mandamus in this Court. Leave to file such application was granted on April 11, 1985, and this Court ordered all further proceedings in Neaves' criminal case stayed pending final resolution of the said application.

“We turn now to the law of disqualification and recusal.

“ ‘The common law of disqualification of judges was clear and simple: a judge was disqualified for direct pecuniary interest and for nothing else * * * Blackstone rejected absolutely the possibility that a judge might be disqualified for bias as distinguished from interest * * *.

“ ‘In short, English common law practice at the time of the establishment of the American court system was simple in the extreme. Judges disqualified for financial interest. No other qualifications were permitted.’[17]

“All Texas state constitutions since 1845 have expressly limited the grounds for the disqualification of judges.[18] Tex. Const., Art. V, § 11 of the present Constitution (1876), specifically enumerates the only grounds for disqualification.

“Article V, § 11 of the Texas Constitution provides in part:

“ ‘No judge shall set in any case wherein he may be interested, or where either of the parties may be connected with him, either by affinity or consanguinity, within such a degree as may be prescribed by law, or when he shall have been counsel in the case.’

“There are also statutory grounds for disqualification. Article 30.01 4[19] Article 15; 5[20] and Article 2378, 6[21] which in large measure codify the constitutional grounds.[22]

“It has been held that the constitutional grounds of disqualification of judges are exclusive, that is, they specify all the circumstances that forbid a judge to sit.[23] 7[24] And in addition to the grounds enumerated by the State Constitution being both inclusive and exclusive, it has been held that mere bias and prejudice are not disabling factors under the Constitution.[25]

“Under this line of cases it was held that when the question of disqualification is raised, the determination of the issue is to be made by the judge sought to be disqualified in the first instance.[26]

“It is not necessary under either the Texas Constitution or the Code of Criminal Procedure that the judge, claimed to be disqualified, seek an independent determination of his impartiality in the cause by another judge."[27]

“And it has also been said that a judge is presumed to be qualified until the contrary is shown.[28] And the contrary can only be shown on a motion to disqualify before that same judge, based on strict constitutional grounds,[29] 8[30] it was observed that the presumption of integrity accompanying act performed by judge under sanction of official oath cannot be overcome by inference, conjecture or speculation; challenge of disqualification must be by allegations of fact of positive and unequivocal character.

“Under this line of cases the question of the constitutional disqualification of the trial judge may be raised at any time.[31]

“Against this background came the Code of Judicial Conduct. On September 1, 1974, the Texas Supreme Court adopted such Code. Code of Judicial Conduct . . . Canon 3(C), a provision for self-recusal entitled "Disqualification" expressly states under what circumstances a judge should excuse himself from the case. The Code thus enlarged the grounds for voluntary "disqualification" by providing in Canon 3(C):

“A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including, but not limited to, instances where:

“(a). He has personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

“(b). He served as a lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;

“(c). He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or is a party to the proceedings, or any other interest that could be substantially affected by the outcome of the proceeding...."

“Prior to the adoption of the said Code, Texas courts had referred to similar provisions of the American Bar Association's Canons of Judicial Ethics, but observed such Canons did not at that time have the status of law in Texas.[32]

“After the adoption of the Texas Code of Judicial Conduct, the El Paso Court of Civil Appeals in Chilicote Land Company v. Houston Citizens Bank and Trust Company,[33] commented regarding the Code:

“Further, the Code of Judicial Conduct with its Canon 3, subsection c, became effective on September 1, 1974, prior to the entry of the summary judgment. Its adoption by the Supreme Court establishes the rule when a judge now disqualifies he is without power to act for broader reasons than existed heretofore."

“Even after the adoption of the Code, however, a violation of the Code has not necessitated a reversal of judgment.[34]

“The adoption of the Code was undoubtedly a step towards a concept of fairness, a concept of recusal to be distinguished from the concept of strict constitutional disqualification.

“In 1975 Article 30.03 (county judge disqualification) was amended. It provides in part:

“Section 1. When the judge of the county court or county court at law, or of any county criminal court, is disqualified in any criminal case pending in the court of which he is judge, the parties may by consent agree upon a special judge to try such case. If they fail to agree upon a special judge to try such case, on or before the third day of the term at which such case may be called for trial, the practicing attorneys of the court present may elect from among their member a special judge who shall try the case. The election of the special judge shall be conducted in accordance with the provisions of Article 1887, et seq. V.A.C.S."

“It is observed that the statute applies only to county courts and only to criminal cases pending therein. Article 30.02, V.A.C.C.P., has provided since the enactment of the 1965 Code that the fact of disqualification of a district judge shall be certified to the Presiding Judge of the Administrative District who shall assign a judge to try the case in accordance with Article 200a, V.A.C.S.

“Then in August of 1977 along came the amendment to Article 220a, § 6[35] . Buried deep in § 6 is the proviso "a district judge shall request the Presiding Judge 9[36] to assign a judge of the Administrative District to hear any motions to recuse such district judge from a case pending in his court." By express statutory language § 6 applies only to district judges. It appears that a party desiring to have a district judge recuse himself from a case must by motion to recuse request the judge to initiate the recusal procedure. 10[37]

“In 1979 the Texas Supreme Court in McLeod v. Harris,[38] a mandamus action, held the requirements of Article 200a, § 6, were mandatory and a district judge must request the presiding judge to assign a judge to hear any motion to recuse. The opinion points out that statute does not guarantee the disqualification or recusal of the challenged district judge, but only ensures another judge will determine the merits of the motion. In footnote 3 of the said opinion the Court spoke of the constitutional basis for disqualification of a judge (Article V, § 11, Tex. Const.) being "implemented" by Article 15, V.A.C.S., Article 30.01, V.A.C.C.P., and Canon 3 C of the Texas Code of Judicial Conduct. 11[39]

“In Robb v. Robb,[40] the trial court was reversed for failing to follow the procedural mandate of Article 200a, § 6, although the alleged ground for recusal was not constitutional. The appellate court reluctantly followed McLeod. The Court wrote:

“These grounds of disqualification (constitutional and statutory) of a judge have long been held to be both inclusive and exclusive ... all of this has now been changed by the Supreme Court's decision in McLeod v. Harris ... We are bound by that decision and follow it in this case, but we are not precluded from questioning its soundness, for the Constitution cannot be amended by judicial fiat. Or, if we misconstrue the opinion, and bias and prejudice and the Code of Judicial Conduct are not grounds for disqualification of a judge, then what reason is there for mandating a hearing on a motion alleging such cases to recuse?"[41]

“In River Road Neighborhood Ass'n. v. South Texas Sports, Inc.,[42] the Court stated:

“We cannot impute to Justice Barrow an intention to bury in a footnote a holding that the Constitution may be amended by a code governing the conduct of judges which has been promulgated by the Supreme Court. Clearly, such a holding would require prominent display in the body of the opinion."

“In McClenan v. State,[43] the Court of Criminal Appeals held that Article 200a, § 6, applies to criminal cases in the absence of any explicit or implicit legislative intent indicating otherwise. There, however, this Court held that though the trial judge erred in not following the statute no bias on the part of the judge was shown from the complete record. The Court held that before the statute comes into play "in criminal cases" an obvious requirement is that the motion to recuse must allege proper grounds upon which the motion could be sought in the first place.

“Next, along came the adoption of Rule 18a, Texas Rules of Civil Procedure, which was added by order of June 10, 1980, eff. Jan. 1, 1981. It was later amended by order of December 15, 1983, eff. April 1, 1984. This rule as originally written applied only to district courts. Rule 18a now provides:

“(a) At least ten days before the date set for trial or other hearing in any court other than a Court of Appeals or the Supreme Court, any party may file with the clerk of the court a motion stating grounds why the judge before whom the case is pending should not sit in the case. The grounds may include any disability of the judge to sit in the case.

“(b) On the day the motion is filed, copies shall be served on all other parties or their counsel of record, together with a notice that movant expects the motion to be presented to the judge three days after the filing of such motion unless otherwise ordered by the judge. Any other party may file with the clerk an opposing or concurring statement at any time before the motion is heard.

“(c) Prior to any further proceedings in the case, the judge shall either recuse himself or request the presiding judge of the administrative judicial district to assign a judge to hear such motion. If the judge recuses himself, he shall enter an order of recusal and request the presiding judge of the administrative judicial district to assign another judge to sit, and shall make no further orders and shall take no further action in the case except for good cause stated in the order in which such action is taken.

“(d) If the judge declines to recuse himself, he shall forward to the presiding judge of the administrative judicial district, in either original form or certified copy, an order of referral, the motion, and all opposing and concurring statements. Except for good cause stated in the order in which further action is taken, the judge shall make no further orders and shall take no further action in the case after filing of the motion and prior to a hearing on the motion. The presiding judge of the administrative judicial district shall immediately set a hearing before himself or some other judge designated by him, shall cause notice of such hearing to be given to all parties or their counsel, and shall make such other orders including orders of interim or ancillary relief in the pending cause as justice may require.

“(e) If within ten days of the date set for trial or other hearing a judge is assigned to a case, the motion shall be filed at the earliest practicable time prior to the commencement of the trial or other hearing.

“(f) If the motion is denied, it may be reviewed for abuse of discretion on appeal from the final judgment. If the motion is granted, the order shall not be reviewable, and the presiding judge shall assign another judge to sit in the case.

“(g) The Chief Justice of the Supreme Court may also appoint and assign judges in conformity with this rule and pursuant to Article 200a."

“See Rule 18b as applicable to recusal of a justice of the Supreme Court and the Courts of Appeals. 12[44]

“Rule 18a ... brings a new dimension to this subject" of judicial recusal.[45] The rule is clear that at least ten days before the date set for trial or other hearing the party may file a motion stating grounds why the trial judge should not set in the case, and the courts may include any disability of the judge to sit in the case.

“Two significant points of the rule should be noted. First, the filing of a recusal motion under the rule abates the power of the judge[46] to act except for "good cause stated" in any order entered. Second, the rule requires the setting out of the grounds for the alleged recusal, but this "may include any disability of the judge in the case." This would appear[47] to enlarge the permissible scope for removal by the assigned judge beyond the constitutional grounds or the Code of Judicial Conduct. 13[48]

“With this backdrop we return to the facts of the instant case. Judge Miller of County Court at Law No. 4, where the D.W.I. case was pending, declined to recuse himself or to request "the Presiding Judge of Bexar County, Texas" to assign another judge to hear the motion to recuse filed by the defendant Neaves. Thereafter Neaves, on his own, filed a motion asking for assignment of a county court at law judge to hear the motion to recuse Judge Miller. The motion was presented to Judge Lozano, Judge of County Court at Law No. 6, "acting as Criminal Presiding Court of Bexar County."