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

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.

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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.

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 #2)

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Timeliness and Ten Days - Before Judgment

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

Issues: Old case with a litigant who was famous in her day.

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

Inartful motion to recuse filed prior to trial, on day of trial, was effective. Consider what procedure is required by the statute and whether the rules can create additional requirements that are not in the statute.

“Appellee Susan Lee Jones Strobel filed suit for slander in the district court of Travis County against appellant Madalyn Murray O’Hair and The Society of Separationists, Inc. Appellee alleged that O’Hair and the Society slandered her when O’Hair filed a complaint with the Austin Police Department claiming that appellee had stolen two computer tapes from the offices of the Society. After trial to a jury, the district court entered judgment for appellee for $45,000 representing compensatory and exemplary damages. We will reverse the judgment.

“. . . A threshold point is that the district court erred in not requesting the presiding judge of the administrative judicial district to hear and consider appellants’ motion to recuse.

“The motion to recuse is found in an inartfully drawn, Pro se pleading entitled, "Entry of Appearance." The motion stated two purported reasons why Judge Hume Cofer should not preside over the trial of the case. In place of requesting the presiding judge to assign another district judge of the administrative district to hear the motion to recuse, Judge Cofer heard, considered, and overruled appellants’ motion.

“The failure of the district court to request the presiding judge to assign a judge of the administrative district to hear the motion to recuse conflicts with Tex.Rev.Civ.Stat. art. 200a § 6. That statute provides 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."

“The Supreme Court has considered recently Art. 200a § 6 in McLeod v. Harris.[1] The Court in McLeod held that by the express terms of Art. 200a § 6 a district judge has the mandatory duty to request the presiding judge of the administrative district to assign another judge of the administrative district to hear a party’s motion to recuse.

“Appellee argues that appellants, by not filing an application for writ of mandamus, have "waived" their right to have appellate consideration of the district court’s error. As authority for her position, appellee relies on Pattison v. Spratlan.[2] and Scott v. Harris[3] Pattison and Scott, among other cases, hold that the proper practice is to apply for a writ of mandamus to compel the reporter to prepare the statement of facts. The rule in such cases is hardly applicable to the case at bar.

“Appellants’ lack of time to prepare and file an application for writ of mandamus readily distinguishes their plight from that of an aggrieved party attempting to obtain a statement of facts from a recalcitrant court reporter. The Rules of Civil Procedure prescribe a time certain for the appellant to obtain and file the statement of facts. The Courts of Civil Appeals may extend the time for filing the statement of facts upon proof reasonably explaining the need.[4] After exhaustion of one or more extensions of time, diligent counsel will prepare and file mandamus proceedings.

“Appellants, unlike a party seeking to obtain a statement of facts, had little or no time to prepare and file an application for writ of mandamus. The motion to recuse was prepared and filed at 10:32 A.M. on October 23, 1978, immediately after appellant O’Hair learned that the case had been assigned to Judge Cofer for trial. The motion to recuse was considered and overruled by the court just before trial time on October 23.

“Given sufficient time, appellants probably could have obtained redress by application for writ of mandamus.[5] Under the circumstances, however, appellants elected to correct the district court’s error by appeal. Appellants’ selection of appeal resulted in no harm other than delay necessarily incident to the appellate process. Appellants’ choice to refrain from seeking relief by mandamus does not preclude them from asserting the district court’s error on appeal.

“The filing of a motion to recuse, of course, does not disqualify the judge. Article 200a §6 only requires that the presiding judge assign another judge to determine the merits of the motion.[6]

“The judgment is reversed and the cause is remanded for new trial.

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

Issue: Procedural 10 day requirement.

“Waste-Water argues that the trial court erred by overruling their motion for recusal. This point is likewise without merit. The procedural rules in Texas require a party to file a motion for recusal at least ten days before the date set for trial or any other hearing.[7] The requirements of Rule 18a(a) are mandatory. Where a party fails to comply with those requirements, he waives his right to complain of a judge’s failure to recuse himself.[8] ”

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

Issue: Is a motion to recuse filed less than 10 days before a trial or hearing effective?

Attorney contempt.

Is an attorney who does not understand Texas contempt law for “officers of the court” saved by a judge not following recusation law?

“In this original proceeding, relator seeks a writ of mandamus directing respondent to set aside his orders holding relator in contempt and his order denying her motion for recusal. We conditionally grant the relief sought.

“To avoid confusion, only a brief recitation of the facts will be given. Our record reflects that relator was the attorney of record for John Esquivel, petitioner in a divorce action in the lower court. The present case emerged out of that initial representation. On June 30, 1993, the underlying divorce action came to be heard before Judge Ogden Bass, of the 300th District Court of Brazoria County. Both parties to the divorce appeared, as well as the attorney for Mrs. Esquivel. Relator, who was attorney of record for Mr. Esquivel, failed to appear because of her belief that her presence was unnecessary due to an agreement between the parties.1[9] As a result of not appearing, Judge Bass ordered relator to appear in court on July 9, 1993, to show cause for her failure to appear in court on June 30, 1993. On July 9th, relator again failed to appear for the scheduled show cause hearing. The record reveals the second absence was due to the influence of medication taken by relator, and that the absence was not intentional.

“On July 13, 1993, Judge Bass once again ordered relator to appear to show cause for her failure to appear in court on July 9th. The hearing was set for July 19th. Relator was notified of the July 19th show cause hearing on July 14, 1993. The following day relator filed a motion for recusal, requesting that Judge Bass recuse himself from the case. On July 19, 1993, Judge Bass tried relator on the motions for contempt for failure to appear in his court on June 30th, and July 9, 1993.2[10] After extensive argument by relator, Judge Bass found that relator offered no explanation on her failure to appear, and as a result, found relator in contempt on both counts and fined her $750.00 plus court costs.

“Relator now seeks relief by mandamus on the allegations that respondent had a duty to act and failed to act pursuant to the provisions of §21.002(d) of the TEX.GOV'T CODE. . . . Section 21.002 . . . provides the court with contempt powers. Subsection (d) specifically speaks to an officer of the court being held in contempt. This subsection reads as follows:

An officer of a court who is held in contempt by a trial court shall, on proper motion filed in the offended court, be released on his own personal recognizance pending a determination of his guilt or innocence. The presiding judge of the administrative judicial region in which the alleged contempt occurred shall assign a judge who is subject to assignment by the presiding judge other than the judge of the offended court to determine the guilt or innocence of the officer of the court.[11]

“Relator contends that Judge Bass was without authority to hear the motions for contempt because he was relator's accuser.[12] Relator maintains that once Judge Bass cited her for contempt, the judge was then required to transfer the contempt proceeding to the presiding judge of the administrative judicial region for a determination of her guilt.

“The statute is clear that there must first be a finding of contempt and second, a proper motion filed in the offended court before any duty of the judge becomes effective.[13][14] A review of the record reveals that relator has not filed a proper motion in the offended court. Relator, having failed thus far to fulfill the requirements of §21.002(d), is no position to complain of the judge's failure to act.3[15] However, this is not dispositive of this proceeding.[16] Our review of the record shows that Judge Bass was without authority to hear the motions for contempt due to relator's filing of a motion for recusal prior to the contempt hearing.[17]

. . .

“Relator's motion for recusal sought the have Judge Bass either recuse himself or forward the case to the presiding judge of Brazoria County.[18] Respondent argues that the recusal motion is not a proper motion in that it was untimely filed and failed to state a ground for recusal. This court has previously held that the procedural requirements of Rule 18a are mandatory and a party who fails to comply with them waives the right to complain of a judge's failure to recuse himself.[19]

“However, the contempt hearing in the present case was set for July 19th. Relator was notified of the setting on July 14th. She filed her motion to recuse the next day. On these facts, we hold the trial judge had but two options: to recuse himself or refer the case to the presiding judge.[20] This is so regardless of the timeliness of the motion or the sufficiency of the grounds for recusal.[21] By pursuing an option unavailable through the Rule, the trial judge violated his plain duty and abused his discretion as a matter of law.[22]

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

Issues: The 10 day requirement is not mandatory if there is good cause for the late filing of a motion to recuse.

If a law firm hires the judge’s son-in-law during the trial, must the judge recuse?

“RECUSAL

“Keene first contends that the trial judge and the presiding judge of the administrative judicial district erred in overruling the two motions for recusal. Keene takes the position that because Judge Brown’s son-in-law worked as an associate for the firm representing the plaintiffs, the trial judge abused his discretion in not recusing himself and the presiding judge abused his discretion in upholding the trial judge’s decision.

“The appellees contend that both of Keene’s motions to recuse were untimely under Rule 18a that requires such motions to be filed "[a]t least ten days before the date set for trial or other hearing." The ten-day requirement was placed in the rule to avoid having a party wait until the last minute to file such a motion and thus disrupt the commencement of a trial. This ten-day requirement of Rule 18a does not contemplate the situation in which a party cannot know the basis of the recusal until after a motion for recusal is no longer timely.[23] An incident that occurs during trial may take on added significance due to the very timing of its occurrence. In the present case, although Keene made its motion almost two weeks into the trial, the motion sought recusal based on a relationship between the judge and appellees’ counsel, which did not exist until the day before Keene filed the motion. Although not timely filed under the rule, good cause existed for the late filing because the basis of the motion to recuse did not exist at the time the trial began.

“Keene based its motion on two parts of TEX.R.CIV.P. 18b, the substantive rule on recusals. On an appeal from the denial of a recusal motion, the reviewing court may reverse the trial court’s decision only if the trial court abused its discretion.[24] Rule 18b(2)(a) states that "[a] judge shall recuse himself in any proceeding in which his impartiality might reasonably be questioned." Rule 18b(2)(f)(ii) requires recusal of a judge if the judge or the judge’s spouse or anyone within the third degree of relationship to either of them, or the spouse of such a person "is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding." Keene contends that the fact that Baron & Budd represented the appellees on a contingency fee basis indicates that the judge’s son-in-law had a substantial stake in the outcome of this case and, therefore, Judge Brown should have recused himself from the case under either rule 18b(2)(a) or rule 18b(2)(f)(ii).

“Judge Brown’s son-in-law, however, is a salaried associate and, as such, he owns no interest in the firm and has no direct financial interest in the outcome. Several federal courts have examined the federal equivalent to Rule 18b(2) and have found that a trial judge’s relationship to an employee of a law firm appearing in his court does not disqualify the judge unless the relative actually works on the case.[25] Keene has failed to show that Judge Brown’s son-in-law worked on this case, and, in fact, this would be unlikely given that the firm did not hire him until two weeks into the trial.

“The fact that a lawyer-relative of the judge is affiliated with a law firm participating in a trial does not of itself provide a reasonable basis for questioning the judge’s impartiality. Each situation has to be determined on an ad hoc basis, considering such factors as whether and to what extent the lawyer-relative of the judge is participating in the case and whether the lawyer-relative will be substantially affected by the outcome of the proceeding. In the present case, there is no showing of any participation by the lawyer-relative; there is no showing that the lawyer-relative will be substantially affected by the outcome of the proceeding; and there are no other significant factors that militate toward requiring a recusal.

“In summary, the record does not reflect that Judge Brown knew of anyone related to him or his spouse within the third degree of relationship who had an interest that could be substantially affected by the outcome of these cases, nor that the judge’s impartiality could reasonably be questioned under these facts. We find that Judge Brown did not abuse his discretion in refusing to recuse himself under either Rule 18b(2)(a) or Rule 18b(2)(f)(ii), and that the presiding judge, who heard the motions, did not abuse his discretion in denying the recusal motions. We therefore overrule this point of error.

ON MOTION FOR REHEARING

“Justice Bleil, dissenting.

“Originally, I concurred with the majority’s decision to affirm the trial court’s judgment. Upon further consideration, I have concluded that I cannot join in the decision. Therefore, I dissent.

“My disagreement with the majority’s decision concerns the RECUSAL portion of the court’s opinion, specifically the portion pertaining to TEX.R.CIV.P. 18b(2)(a), which provides for a judge to be recused when his impartiality might reasonably be questioned.

“The judiciary must strive not only to give all parties a fair trial but also to maintain a high level of public trust and confidence.[26] Sometimes the judge may need to recuse himself, or be recused, even though he has no actual bias and would do his very best to weigh the scales of justice equally between contending parties.[27] The problem is that people who have not served on the bench are often all too willing to indulge suspicions and doubts concerning the integrity of judges.[28]

“This court has previously affirmed the noble public policy that lies at the foundation of our recusal rules. In CNA Ins. Co. v. Scheffey,[29] we wrote that,

“Public policy demands that a judge who tries a case act with absolute impartiality.[30] It further demands that a judge appear to be impartial so that no doubts or suspicions exist as to the fairness or the integrity of the court.[31] Judicial decisions rendered under circumstances that suggest bias, prejudice or favoritism undermine the integrity of the courts, breed skepticism and mistrust, and thwart the principles on which the judicial system is based.[32]

“This court today takes a further step toward recognizing the significance of maintaining the integrity of the judicial system by recognizing the existence of a good cause exception to allow the late filing of a motion to recuse in instances in which the basis for the motion arises untimely. I agree with and applaud the recognition that the law must allow a motion to recuse to be filed late when the grounds arise late or with due diligence are discovered late.

“I agree with the majority that the trial judge in this case was not legally disqualified because his son-in-law took a job with a law firm that was participating in the trial. The reason for my disagreement with the majority is simple: I believe that when a judge’s son-in-law is associated with a law firm which is participating in a case before that judge, then that judge’s impartiality might reasonably be questioned.8[33] The majority erroneously bases its resolution of this question on no showing of financial interest in the litigation and no showing of active participation in the trial. It fails to consider the appearance of partiality that might be given. It fails to see the difference between what is and what appears to be. Consequently, it fails to see that under the circumstances Judge Brown’s impartiality might reasonably be questioned.

“It appears to me that the majority views the issue as one concerning disqualification, not recusal. Where the majority and I part philosophically is when it says that the record shows that the judge’s impartiality could not reasonably be questioned. The reasons it gives are essentially that (1) the son-in-law has no direct financial interest in the litigation’s outcome, and (2) several federal courts have examined the "federal equivalent to Rule 18(b)(2)" and have found that a trial judge’s relationship to an employee of a law firm appearing in the case does not require recusal unless the relative actually works on the case.

“These reasons simply are not valid when they are closely scrutinized. The first reason, no direct financial interest, is patently not relevant to 18b(2)(a) (impartiality might reasonably be questioned) inquiries. And, we are not discussing disqualification under Texas Rule 18b(1) or recusal under 18b(2)(e), (f), (g). This reason fails.

“The "federal equivalent to Rule 18b(2),"-with-supporting-federal-cases reason likewise cannot bear scrutiny. The fact is that the Texas rule covers disqualification and recusal, whereas the federal rule only covers disqualification. In Texas courts a procedural means is provided for airing the motion to recuse before an assigned, neutral judge. TEX.R.CIV.P. 18a. Under the federal rule, no procedural means is provided and the federal district judge simply decides whether he or she is disqualified. The federal Judiciary and Procedure Rule, 28 U.S.C. § 455, does not even mention the word recusal.10[34] “Although the terms disqualification and recusal of judges are sometimes used interchangeably, such use is erroneous.[35] The majority may have fallen into error by failing to recognize this distinction. In Texas, the requirements and procedures governing disqualification and recusal are separate and distinct.[36] Within the federal system, disqualification is governed by 28 U.S.C.A. § 455. Recusal does not appear to be governed by any written rule.

“The federal counterpart to Rule 18b(2) simply is not the "equivalent" of that rule. 11[37] And the federal cases the majority cites fail to make its decision any sounder. In the federal cases cited by the majority, the relative’s active participation in the pending litigation was a decisive factor in determining whether the judge was automatically disqualified under 28 U.S.C.A. § 455(b)(5)(ii) because a close relative was acting as a lawyer in the proceeding.[38] None of these cases, however, says that a reasonable question regarding the judge’s impartiality can arise only if the relative actually works on the case.

“During the trial of this complex litigation, the trial judge’s son-in-law started work at the plaintiff’s attorney’s law firm. This fact might or might not cast doubt on the trial judge’s impartiality. Here, as soon as this fact was learned, Keene’s attorneys moved to recuse the judge, questioning his impartiality. Under the circumstances of this case and the law of this state, this court errs in holding that the judge’s impartiality might not reasonably be questioned. Because the trial judge’s impartiality was reasonably questioned, the trial judge should have been recused.

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

Issue: Timeliness. We see public servants protecting the public interest from public servants and saving money by spending money. Consider what this case says of judicial and governmental economy.

Majority opinion by Justice Vance, joined by Chief Justice Davis

This is a direct appeal from an order authorizing a writ of mandamus. Appellants are the county commissioners of Leon County, the county judge, and Leon County. The procedural history is central to understanding the issues, and we describe it in some detail.

BACKGROUND AND PROCEDURAL HISTORY

The district judges having jurisdiction in a county have the authority to appoint the county auditor.[39] The county auditor may submit a list of assistant county auditors to the district judges who may approve the list and the salary to be paid each person on the list; the commissioners court “shall order the salaries to be paid.”[40] The judges may appoint temporary assistants and determine their salaries if an “emergency” exists.[41]

On February 13, 2003, two of the three district judges in Leon County, Judge Keeling and Judge McAdams, [1][42] held a special public meeting to appoint a county auditor and an assistant. Apparently there had not been a county auditor for two and one-half months, and there had not been an assistant for nine and one-half months. The two judges signed an order appointing Susan Pugh as county auditor with an annual salary of $42,000 and an order appointing Linda Grayson as assistant county auditor with an annual salary of $29,500. Grayson had formerly served as assistant county auditor from 1998 to May 2002, when she left the position. Her last salary was $20,058.30.

On March 10, 2003, the commissioners court adopted two orders, one setting Grayson's salary at $20,659.98, and the other not approving a salary of $29,500. The commissioners court’s position was that it had authority under section 111.013 of the Local Government Code to approve, or not approve, any salary for an assistant county auditor if it exceeded the salary for the previous fiscal year by over five percent.[43]