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

YouKnowItAll.com

©2004 A. Hawkins

Suitability

This course is suitable for lawyers who are serious students of the law, who want to know all about this topic, regardless of experience.

Scope and Objective

This is an advanced course. The introductory course covering recusation, disqualification, assignment, and objections should be taken first. This course assumes that you have taken that course and have the text from that course. This is one of two advanced courses. The material is arbitrarily divided in two parts. Anyone who is serious about the topic is advised to take both advanced courses.

Our goal for the advanced courses on this topic is that you will learn the technicalities of recusation law, and the historical court interpretations.

This course is focused on civil litigation. Recusation in criminal courts is covered in separate courses. The recusation rule is the same, but it is imterpreted differently in criminal and civil cases. Even if you only litigate civil, or criminal, cases, to full knowledge of Texas recusation law requires understanding how courts hate constued recusation law in the other kind of case.

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.

3. Keep track of your actual study hours and dates. After you complete your study, you certify your actual study hours at www.YouKnowItAll.com and you choose to whether to pay by check or credit card. Study time counts. Procedural and administrative time does not count. You receive credit for the actual study time you put in, based on your certification, up to the maximum for the course. Tuition is similar. If your actual study time is more than the maximum, your tuition is capped at the maximum. If your actual study time is less than the maximum, tuition is calculated based on your actual study time, at $20 per hour. Please certify your actual study time even if it is above the maximum. This allows us to better calibrate our courses, and helps the MCLE regulators recognize the real time you spend in your study.

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.

Table of Contents for Both Advance Civil Trial Judge Recusation Courses

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

The Role of the Judges

and

The ethical, professional, and financial risk for the lawyer.

Greenberg v. Howell 676 S.W.2d 431 (Tex.App. - Dallas 1984)

Greenberg v. Howell 685 S.W.2d 694 (Tex.App. - Dallas 1984)

Joachim v. Chambers 815 S.W.2d 234 (Tex 1991)

Ludlow v. Deberry 959 S.W.2d 265 (Tex.App. - Houston [14th Dist.] 1997)

Blanchard v. Krueger 916 S.W.2d 15 (Tex.App. Houston [1st Dist.] 1995).

Yahoo! Sex in the City

Judge Sues Over Allegations Made in Yahoo Suit

Inquiry focuses on two judges

Tape unravels into lawyer vs. judge

Commission Releases Details of Allegations in Gibson Case

Jenevein v. Friedman September 8, 2003 (TexApp5 Dallas 2003)

The Judge is Blind to Love and Marriage

The View Is Clear: More Laser Surgery Lawsuits

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Voluntary Recusal After Everything Is Done

Urdiales v. Concord Technologies September 30, 2003 (Tex.App.14 Houston 2003)

Recuse and Rescind the Recusation

Parker v. Parker August 14, 2003 (TexApp2 Ft. Worth 2003)

Oath and Treason

Mortland v. Dripping Springs I. S. D. and Hays County July 23, 2003 (TexApp3 Austin 2003)

Is Bias Judicial or Extrajudicial?

In the Interest of M.O., A Minor Child July 16, 2003 (TexApp4 2003) Memo

Orders While Recusation Motion is Pending - Good Cause

Investment Performance v. Richardson June 26, 2003 (TexApp1 2003)

Lawyer Error, Preservation of Judicial Error & The Record on Appeal

Figueroa v. West 902 S.W.2d 701 (Tex.App. - El Paso 1995)

Galvan v. Downey 933 S.W.2d 316 (Tex.App. - Houston [14th Dist.] 1996)

Ceballos v. El Paso Health Care 881 S.W.2d 439 (Tex.App. - El Paso 1994)

Youngs v. Choice 868 S.W.2d 850 (Tex.App. Houston [14th Dist.] 1993).

Birnbaum v. Law Offices of Westfall October 23, 2003 (TexApp5 Dallas 2003)

Danklefs v. Danklefs August 6, 2003 (TexApp4 San Antonio 2003)

In re Marriage of Sheshtawy December 18, 2003 (TexApp14 2003)

C & D Brokerage v. Compass Bank April 3, 2003 (Tex.App. Houston (14th Dist.) 2003)

Spigener v Wallis (June 12, 2002 TexApp Waco 2002)

Davis v. Davis March 27, 2003 (TexApp Ft Worth 2003)

Hope's v. Chase July 17, 2003 (TexApp5 Dallas 2003)

In re Hearn August 29, 2003 (TexApp4 San Antonio 2003)

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Texas: Recuse the Civil Trial Judge (Advanced #2)

Timeliness and Ten Days - Before Judgment

Society of Separationists v. Strobel 593 S.W.2d 855 Tex.Civ.App. -Austin 1980)

Waste Water v. Alpha 874 S.W.2d 940 (Tex.App. Houston [ f14th Dist.] 1994)

Jamilah v. Bass 862 S.W.2d 201 (Tex.App. - Houston [14th] 1993)

Keene Corp. v. Rogers 863 S.W.2d 168 (Tex.App. - Texarkana 1993)

Leon County v. Grayson July 30, 2003 (TexApp10 Waco 2003)

Vickery v. Texas Carpet 792 S.W.2d 759 (Tex.App. - Houston (14th Dist.] 1990).

Hoggett v. Brown 971 S.W.2d 472 (Tex.App -Houston [14th Dist.] 1997)

Metzger v. Casseb 839 S.W.2d 160 (Tex.App. - Houston [1st dist.] 1992)

CNA v. Scheffey 828 S.W.2d 785 (Tex.App. - Texarkana 1992)

Timeliness and Ten Days - After Appeal

Winfield v. Daggett 846 S.W.2d 920 (Tex.App. - Houston [1st. Dist.] 1993)

Recuse or Refer - The Basic Requirements

Johnson v. Pamjani August 16, 2001 (Tex. App. Houston [14th Dist] 2001)

Woodruff v. Wright 51 S.W.3d 727 (Tex.App - Texarkana - 2001)

Wirtz v. Massachusetts Mutual 898 S.W.2d 414 (Tex.App. - Amarillo 1995)

Gaines v. Gaines 677 S.W.2d 727 (Tex.App. - Corpus Christi 1984)

Markowitz v. Markowitz April 17, 2003 (TexApp Houston 14th Dist. 2003)

Castano v. San Felipe Agricultural February 12, 2003 (TexApp San Antonio 2003)

Watler v. Watler March 13, 2003 (TexApp Houston 1st Dist. 2003)

In re Wightman-Cervantes (January 27, 2003 TexApp Dallas 2003)

In the Interest of M.C.M. 57 S.W.3d 27 (Tex.App.-Houston [1st Dist.] 2001)

Investment Performance Corporation v. Richardson June 26, 2003 (TexApp1 Houston 2003)

Trostle v Trostle May 20, 2002 (TexApp7 2002)

Lynn v. Progressive County Mutual January 16, 2003 (TexApp Houston 14th Dist. 2003)

Mandamous Jurisdiction over Presiding Judge of Administrative Region

In re Hettler April 29, 2003 (TexAp7 Amarillo 2003)

Do Inmate Plaintiffs Get a Break?

Carson v. McAdams 908 S.W.2d 228 (Tex.App. Houston [1st Dist.] 1993)

Carson v. Serrano January 24, 2003 (TexApp Texarkana 2003)

Gill v. Texas Department of Criminal Justice 3 S.W.3d 576 (Tex.App. - Houston [1st Dist.] 1999)

Hall v. Treon 39 S.W.3d 722 (Tex.App.-Beaumont 2001)

Probate

Marshall Estate/Anna Nicole Smith

Estate of Teal (March 28, 2002 TexApp. Corpus Christi 2002)

In re Azle Manor (August 28, 2002 TexApp Fort Worth 2002)

Probate - Constitutional County Judge

In re Annette Gonzales June 25, 2003 (TexApp4 San Antonio 2003)

Administrative Proceedings

Walston v. Walston August 29, 2003 (TexApp10 Waco 2003)

Lewis v. Austin Independent School District (January 16, 2003 TexApp3 Austin 2003)

Even The Best Can be Confused

Morris v. Short 902 S.W.2d 566 (Tex.App. - Houston [1st Dist.] 1995)

Brosseau v. Ranzau 911 S.W.2d 890 (Tex.App. - Beaumont 1995)

Brosseau v. Ranzau 28 S.W.3d 235 (Tex.App.-Beaumont 2000)

Brouseau v. Ranzau November 1, 2001 (Tex. App. Beaumont 2001)

Brosseau v. Ranzau June 6, 2002 (TexApp. Beaumont 2002)

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The Course Text

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

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The Role of the Judges

and

The ethical, professional, and financial risk for the lawyer.

Judge Howell participated in the court of appeals as if he was a party. He filed briefs. He took positions. Was that proper? Did judge Howell become an adversary of the party that filed the motion to recuse him? Did the judge become the adversary of the attorney who filed the motion? Did the judge become the lawyer for the party which did not seek recusation? What are the professional, ethical, professional responsibility, financial, and career implications for the lawyer who files a motion to recuse?

Judges should not take motions to recuse personally. Unfortunately, many do. Many feel that they are a personal insult and attack. Some feel that they are being sued. Some seem to feel like an attempt to “take a case from them” is like an attempt to take a family heirloom from them. If isn’t. Judges should be largely interchangeable generic participants in the legal system. One should be about like another. If one doesn’t preside, another will. Judges often complain that they have crowded dockets. One would expect a judge to be pleased if a case is handed to another judge. Why would a judge wish to remain on a case if a party believes the judge is biased. What is the big deal? For some judges it may not be a big deal. Some may respond to an informal request to recuse by recusing. Others fight tooth and nail to avoid being recused. Some act improperly in defense of their perceived right to preside. Why? Is there any proper motive that supports a fight by the judge to preside? Is such conduct an indication that the judge should be recused? Consider Judge Howell’s conduct. Does his response to the motions confirm the merits of the motions?

One improper judicial technique is sanctioning lawyers who file a motion to recuse. The rule provides for sanctions. That is dangerous. Sanctions can be abusively imposed. This was rarely been done in early reported recusation cases. It has appeared in recent reported cases. It can be a method of intimidating lawyers to prevent future recusation as well as punishing current recusation motions. Another abuse is referral of a lawyer for disciplinary proceedings. That has happened in Texas. It has been abusive. The grievance committee, facing the pressure of seeking to please the judge is prone to act abusively as well. For examples, see Sears and Flores in the introductory course. If you haven’t read them recently, review them in that course text.

If you think judges have thick skins and won’t take offense, hold grudges, or retaliate against the lawyer who criticizes them, think again. The Texas Supreme Court is not so optimistic. Even though it is not a recusation case, we review Joachim v. Chambers for three reasons. First, it has been relied on improperly, perhaps disingenuously, by Judge Steib, to prevent a recusation movant from calling the judge to testify about the facts. That is improper. Second, it demonstrates the Texas Supreme Court’s realization that judges retaliate against lawyers who criticize them. Third, it supports a lawyer who files an objection or recusation with respect to a judge if the lawyer has ever previously been required to cross examine the judge in any prior proceeding. The reason? The Texas Supreme Court thinks that a judge can be expected to be biased against such an attorney. Applying that to a prior recusation of the judge filed by the attorney is both chilling and supportive of the premise that if a lawyer ever files a recusation with respect to the judge, the lawyer may never appear before that judge without concern that the judge will be biased against the lawyer. Thus, a recusal might be based solely on a prior recusal attempt, or cross examination, with support from the the language of the Texas Supreme Court. Of course, all recusals involve the risk of sanctions, professional discipline, and inability to appear in the future before that judge. Unfortunately, in some parts of Texas, if a motion is filed with respect to one judge, other judges may respond as if the recusation is a personal insult to all judges. When such a judge is assigned to hear the recusation motion, the process is illusory.

In short, filing a motions to recuse is done at substantial professional peril.

After reviewing Joachim, pause to reflect on Judge Howell’s conduct in the Greenberg cases. Then proceed to Judge Stieb’s statements in Ludlow and the statements of Judges Blackstock and Krueger in Blanchard.

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Greenberg v. Howell 676 S.W.2d 431 (Tex.App. - Dallas 1984)

Issues: Must a judge recuse or refer?

May the judge deny the motion without referral?

If the motion is procedurally insufficient, must the judge refer it?

Is mandamus a proper remedy?

This judge participates as if the judge is a party, but the court of appeals does not comment on that.

Compare this case to other cases that require procedural compliance.

The recusation statute was moved to the Government Code after this case.

“Greenberg, Fisk and Fielder, a professional corporation composed of practicing members of the Bar, in behalf of themselves and their clients in nine unrelated cases pending in the 191st Judicial District Court, seek mandamus directing the judge of said court, Charles Ben Howell, to set aside his orders holding their recusal motions (an identical motion on identical grounds was filed in each of the nine cases) "procedurally insufficient" and to require Judge Howell to obey Rule 18a TEX.R.CIV.P. (1983) by either recusing himself or entering an order of referral of such motions to the presiding judge of the administrative district. We conditionally grant the relief sought.

“The duty of a district judge to whom a recusal motion is addressed is clear. Our Legislature has provided in Sec. 6, Art. 200a, TEX.REV.CIV.STAT. that among other duties of a judge:

“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.

“Our Supreme Court, pursuant to its rule-making powers, has provided in Rule 18a, TEX.R.CIV.P. that:

Rule 18a. Recusal or Disqualification of Trial Judge

“(a) At least ten days before the date set for trial or other hearing in district court, any party may file with the clerk 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 of their counsel, and shall make such other orders including orders on 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.[1]

“Our record reflects that each recusal motion was filed in its respective case on February 1, 1984; that no recusal or referral was entered by Judge Howell in response to any motion; that on February 10, 1984, leave was granted by this court to file the petition for mandamus and notice thereof was given to Judge Howell and to each counsel and party in the nine cases; and that by the hearing date, February 23, 1984, only Judge Howell had filed a brief resisting the granting of the writ. Judge Howell's brief had attached to it nine identical orders (the same order in each case), each dated February 23, 1984 (the day of the hearing and the day his brief was filed), each providing:

“As set forth in the court's memorandum decision of this date, the undersigned judge of this court finds the motions of the defendant (named party) for the recusal of this judge to be procedurally insufficient. It is ordered that the same be and they are hereby stricken out and disregarded.

“By his brief resisting the writ, Judge Howell urges that, since he has determined that the recusal motions are procedurally insufficient, no mandamus should issue. To the contrary, we hold that, since both statute and rule forbid any determination with regard to the recusal motions by Judge Howell, the writ must issue, unless Judge Howell promptly enters either order permitted to him, i.e. recusal or referral.

“By his fifteen-page brief, Judge Howell argues that a recusal motion that is procedurally insufficient is not a recusal motion at all, therefore, neither statute nor rule is invoked. We disagree and hold that a recusal motion invokes both statute and rule the instant the motion is filed and the judge named in the motion shall recuse or refer without regard to the "procedural sufficiency" of the motion itself. We do not hold that the relator and his motion are free from scrutiny and "procedural sufficiency" from some other judge, named in obedience to both rule and statute, but we do hold that the judge named in the motion may not do so without violating his plain duty. On this record, it becomes the plain duty of this court to require that Judge Howell cure his departure from his duty by setting aside each of his nine orders entered on February 23, 1984, which hold the respective recusal motions "procedurally insufficient." It is our further duty to require Judge Howell to forthwith either enter an order recusing himself or enter an order referring such motions to the presiding judge of his administrative district.

“It further appears that Judge Howell, relying upon his orders of February 23, 1984, disposing of the several recusal motions, has scheduled one or more of the nine cases for pre-trial proceedings. Whether Judge Howell elects to recuse himself by order or whether Judge Howell elects to enter a referral order as directed by this opinion, he would not be entitled to sit in any of the cases for the currently scheduled pre-trials. In order that our opinion be made effective under either option as elected by Judge Howell, we prohibit Judge Howell from further presiding over any of the nine cases in which a recusal motion was filed unless and until the referral order in each case be decided in his favor.

“Mandamus granted, but writ withheld, unless the Respondent Howell shall refuse to set aside each of the orders of February 23, 1984, and shall refuse to enter either an order recusing himself or an order of referral in response to each of the recusal motions on file. Prohibition is granted, but writ withheld, unless Judge Howell attempts to sit upon any of the nine cases prior to recusal or referral.

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Greenberg v. Howell 685 S.W.2d 694 (Tex.App. - Dallas 1984)

Issues: May a judge respond to a motion to recuse by doing nothing?

May a judge do nothing until after an election?

“Relator, as attorneys of record in two unrelated cases pending in the 191st Judicial District Court, filed separate motions on June 18, 1984, and July 5, 1984, respectively, seeking recusal of the trial judge. No action thereon had been taken by the trial judge, Charles Ben Howell, the respondent herein, prior to the commencement of this mandamus action against him on September 26, 1984. Judge Howell, by letter of September 13, 1984, had advised the parties in both lawsuits that he had decided to withhold action on the motions pending the outcome of his election for a higher office, his reason being that if he were successful the motions would become moot and delay would be avoided. Relator contends Judge Howell's inaction is not legally justifiable. Judge Howell offers no response in this proceeding. For reasons stated below, we sustain relator's contentions. Mandamus is granted, but the writ is withheld, unless respondent Howell shall fail, by not later than October 29, 1984, to either recuse himself or enter an order of referral of both recusal motions to the presiding judge of the administrative district, and to file with the clerk of this court a certified copy of the order entered.

“ . . . Because a trial judge may not arbitrarily halt trial proceedings, mandamus will lie to compel a trial judge to proceed to trial and judgment in a case pending in his court. For many years the statute granting our mandamus jurisdiction expressly so provided, TEX.REV.CIV.STAT art. 1824, and the recent amendment to that article expands rather than restricts this authority.

“We construe Judge Howell's letter of September 13, 1984, as a refusal to proceed to trial. His letter reads in pertinent part as follows: "... I have decided to withhold action on the recusal motion until after the election. There will be no other proceedings in the case during that period." We take judicial notice that the election referred to will take place on November 6, 1984. The effect of this decision will be to deny to the litigants that access to the justice system to which they are constitutionally entitled.[2]

“In a published opinion in a recent mandamus action involving these same parties . . . . we held that, under both statute and rule, in the event a recusal motion is filed a district judge must promptly enter one of the two orders which are permitted to him, i.e. recusal or referral. We now go a step further and hold that a trial judge, when presented with a recusal motion, has only the option to act in one of these two specified ways; he does not have the option of doing nothing. . . .

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Joachim v. Chambers 815 S.W.2d 234 (Tex 1991)

Issues: May a judge volunteer to be an expert witness?

If a judge testifies and is cross examined will that create problems for the lawyer who cross examines?

Do judges react poorly to criticism, disagreements, and challenges?

Would a judge who perceives criticism from a lawyer retaliate against the lawyer?

In Ludlow, the Joachim opinion is relied upon by Judge Steib as authority for his refusal to allow a judge who is the subject of a motion to recuse to be called as a fact witness in the recusation proceeding. Was that disingenuous, or merely a erroneous? Does it reveal a bias that makes fair judgment impossible?

“The issue for us in this original mandamus proceeding is whether a retired district judge who continues to serve as a judicial officer by assignment may testify as an expert witness. 1[3] In the circumstances of this case we hold that he cannot.

I

“Relators are plaintiffs in a legal malpractice action pending before respondent in the 215th District Court in Harris County. 2[4] Defendants in that action represented relators in a prior lawsuit in the 11th District Court of Harris County. Relators contend in the pending action that defendants mishandled the settlement of the prior suit.

“That settlement was agreed to by the parties to the earlier action the day it was called to trial. Relators' counsel stated the terms of the agreement on the record in open court before the Hon. L.D. Godard, a retired judge sitting for the then regularly elected judge of the 11th District Court, the Hon. William N. Blanton, Jr. All parties assured Judge Godard that they understood and consented to the terms as stated, and he noted on the docket sheet, "judgment to be entered accordingly". Afterward, however, the parties could not agree upon a judgment. Eventually, Judge Godard signed the judgment requested by relators, over the objection of the other parties, who then appealed.

“The court of appeals held that judgment was not rendered when Judge Godard made his docket notation because the notation neither included the terms of the agreement nor declared that "judgment is rendered " on the terms which counsel had stated on the record. The court concluded that judgment was not rendered until it was signed by Judge Godard, which occurred after some of the parties had withdrawn their consent. Consequently, the appeals court reversed the judgment and remanded the case for further proceedings.[5]

“In the present action, relators contend that defendants were negligent in not requesting Judge Godard to render judgment in the earlier case based upon the terms of the settlement agreement when they were announced in open court and before opposing parties withdrew their consent. Defendants moved for summary judgment and requested Judge Godard to provide an affidavit in support of their motion, but before he could do so, he died. Defendants then obtained an affidavit from Judge Blanton, who continued to preside over the 11th District Court. Judge Blanton's affidavit recounts the history of the Buffalo Bag case, including the actions of Judge Godard, and then states:

“The purpose of this affidavit is to state that the docket entry is an action of the Court and not an action of an attorney. It is the function of the Court to select the proper terminology for docket entries. If error was made in using the docket entry "Judgment to be entered accordingly", rather than "Judgment is rendered", then that would be a judicial error and not an error on the part of any of the attorneys involved in the case.

“Respondent trial court denied defendants' motion for summary judgment.

“As the trial date approached, defendants requested Judge Blanton to testify as an expert witness and noticed his deposition. A few days before that deposition was taken, Judge Blanton's term expired and he retired from active service; however, he consented to continue to sit by assignment, as authorized by the Government Code.[6] Thus, when his deposition was taken, Judge Blanton was continuing to serve as a judicial officer. At the deposition, relators objected that Judge Blanton was prohibited from testifying by the Code of Judicial Conduct. Relators refused to cross-examine the Judge pending a ruling by respondent on their objection, and limited their participation in the deposition to objecting to certain questions and answers. Judge Blanton testified, consistent with his affidavit, that any error in the docket sheet notation in Buffalo Bag was Judge Godard's and not defendants', and that defendants' conduct did not fall below the standard of good practice.

“Relators moved respondent to strike Judge Blanton's testimony and prohibit any party from calling him as a witness at trial. Respondent denied relators' motion. 3[7] Relators then arranged to continue Judge Blanton's deposition to allow for cross-examination which had previously been deferred. Although defendants' examination of Judge Blanton had been conducted without incident, relators' cross-examination of the Judge quickly degenerated into an acridly argumentative and largely useless colloquy between relators' counsel and the witness. The two constantly interrupted one another and protested one another's conduct. 4[8]

“Following the deposition relators again moved respondent to strike Judge Blanton's testimony and to prohibit any party from calling Judge Blanton as a witness at trial. At a hearing on relators' motion, defendants' counsel admitted that "Judge Blanton did in fact make many unresponsive answers, as well as the often responsive answers. Matters got out of hand. He was being abused, and he replied in kind." Respondent denied the motion. Relators then moved for leave to file a petition for writ of mandamus in the court of appeals to direct respondent to grant their motion. The court of appeals denied leave to file in a per curiam opinion, holding that respondent did not clearly abuse his discretion and that relators have an adequate remedy by appeal. Relators then moved this Court for leave to petition for writ of mandamus, and we granted the motion.

II

“We first consider whether respondent clearly abused his discretion in refusing to strike Judge Blanton's testimony and prohibit defendants from calling him as an expert witness at trial. Relators argue that to allow Judge Blanton to testify as an expert witness in this case would violate Canons 1, 2, 3 and 5 of the Code of Judicial Conduct.[9] 5[10] We limit our consideration to Canon 2, which states:

A Judge Should Avoid Impropriety and the Appearance of

Impropriety in all Activities

“A. A judge should respect and comply with the law and should conduct himself or herself in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

“B. A judge should not allow family, social, or other relationships to influence his or her judicial conduct or judgment. A judge should not lend the prestige of his or her office to advance the private interests of himself or herself or others; nor should he or she convey or permit others to convey the impression that they are in a special position to influence him or her. A judge should not testify voluntarily in an adjudicative proceeding as a character witness.

“Canon 2 applies not only to active judges and judicial officers but to former judges who continue to sit as judicial officers by assignment.[11]

“The last sentence of Canon 2, which restricts judges from voluntarily testifying as character witnesses, is but a specific application of the more general principles in the canon. These principles do not concern a judge's competency to testify; as a rule, a judge is competent to testify at any trial except one over which he is presiding.[12] The concern, rather, is over the propriety of a judge's testifying. 6[13] A judge may assume the witness chair like anyone else, but he does not so easily lay aside robe and gavel. His testimony about a person's character may appear to be more than mere opinion and may be mistaken for a judicial pronouncement. Indeed, the likelihood of such misperception and the corresponding enhancement of a party's position are often the very reasons for eliciting the judge's testimony, as observed by the reporter for the Model Code of Judicial Conduct adopted by the American Bar Association in 1972, from which our Canon 2 is derived:

“The comment to the 1972 Model Code version of Canon 2 echoes the reporter's observations:

The Committee was informed of numerous instances in which judges were used as character witnesses, and that in each instance the judge was called to exploit the dignity and prestige of his judicial office. Many judges requested that they be protected from the demands made upon them to testify as character witnesses; others were of the view that a judge should be free to do what justice and his own conscience dictate.[14]

The testimony of a judge as a character witness injects the prestige of his office into the proceeding in which he testifies, and may be misunderstood to be an official testimonial. This Canon, however, does not afford him a privilege in response to an official summons.[15]

“"Moreover, when a judge testifies as a witness, a lawyer who regularly appears before the judge may be placed in the awkward position of cross-examining the judge."[16] That is, the relationship that develops between a judge and the lawyer who cross-examines him may influence the judge's conduct or judgment in other cases in which the attorney must appear before the judge. The judge, who is accustomed to expect some deference from attorneys, may easily mistake zeal for disrespect and find the experience unforgettable. And the attorney, who is not ordinarily in the posture of interrogating a judge, may be hesitant to attempt to impeach him, even to serve the client's interests.

“There is yet another reason for restricting judges from testifying as witnesses. The appearance of a judge as a witness threatens, rather than promotes, "public confidence in the integrity and impartiality of the judiciary." A judge who testifies that one party to a case does or does not have good character seems, at least, to be taking sides in the litigation. This is inconsistent with the role of a judge. The risk of confusion of the roles of witness and judge when the same person acts as both can create an appearance of impropriety. For this reason, the comment to the 1990 Model Code version of Canon 2 warns: "Except in unusual circumstances where the demands of justice require, a judge should discourage a party from requiring the judge to testify as a character witness."

“Although Canon 2 specifically restricts judges only from testifying as character witnesses, the underlying principles may apply to other judicial testimony, especially expert testimony. A judge who testifies as an expert witness for a private litigant provides more than evidence; the judge also confers the prestige and credibility of judicial office to that litigant's position, just as a judge who testifies to the litigant's character. Expert witnesses, unlike judges, rarely appear impartial; a party does not ordinarily call an expert whose testimony is unfavorable. An expert witness is offered to support a party's position, and if the expert is a judge, the jury may mistake that support for an official endorsement. An expert witness is usually subject to more rigorous interrogation than a character witness. Thus, the opportunity for strained relations between a judicial witness and a cross-examining attorney bent on discharging his duty to zealously represent his client is perhaps greater when the judge is testifying as an expert than as a character witness. The danger that the judge will not be able to set aside the memory of the interrogation when the attorney appears before the judge in other cases is at least as real. Even when there is no actual impropriety, the appearance of impropriety looms.

“The risk of such appearance of impropriety extends beyond the particular case in which the judge testifies. Not only are jurors likely to be influenced in their decision by the testimony of a judge on one party's behalf, they will see a judge appearing to take sides. The entrance of a judge into the litigation arena in aid of a combatant impacts not only the outcome of that conflict but the very idea of judicial impartiality.

“The issue of whether judges may be limited in testifying as expert witnesses does not frequently arise in reported cases, which perhaps accounts at least partly for the fact that it is not expressly treated in Canon 2. When the issue has arisen, courts have generally held that judges should not ordinarily testify as expert witnesses because of the appearance of impropriety and the threat to the principles of Canon 2.[17] 8[18] Thus, the principles of Canon 2 have been treated not only as ethical precepts but as guidelines for determining whether judges should be permitted to testify in specific cases.

“We have held that the Texas Disciplinary Rules of Professional Conduct may be used to determine whether counsel is disqualified in a particular case. Ayres v. Canales.[19] Similarly, we hold that the Code of Judicial Conduct may be used to determine whether a judge should be allowed to testify in specific circumstances. While Can