Disqualification & Recusal in Texas
In olden days, the only grounds for seeking to disqualify a Texas judge were those set forth in Article V, § 11 of the Texas Constitution. Pursuant to that provision disqualification is warranted only when a judge has an interest in the case, is connected to a party within the requisite degree of relationship, or has been counsel in the case. Another Texas constitutional provision, Article V, § 16, provides that when a Texas county court judge is disqualified in any case the interested parties may, by consent, appoint a proper person to try that case; or, upon their failing to do so, a competent person may be appointed to do so.
In 1974, the Texas Supreme Court adopted the ABA Code of Judicial Conduct; paragraph 3(C) (1) of which provides that a judge should disqualify himself whenever his impartiality might reasonably be questioned. Before then, Texas courts had occasionally referred to similar provisions, but noted that those provisions – not having been adopted in Texas – did not have the force of law. With the Supreme Court’s adoption of the Code, it appeared that a more liberal basis for judicial disqualification existed in Texas, but Texas case law developed around a strong insistence on the letter of the constitutional disqualification; and, for many years, some Texas judges clung to the view that the only grounds upon which a judge’s disqualification could be properly based were those enumerated in Article V, §11.
Not long after the Texas Code of Judicial Conduct was adopted, the Texas legislature promulgated two statutory provisions dealing with the subject of judicial disqualification: Article 15 of the Texas Revised Civil Statutes (which has since been repealed) and Article 30.01 et seq. of the Texas Code of Criminal Procedure. The state’s legislature subsequently adopted other statutory provisions designed to govern disqualification situations. For example, Article 30.03 of the Texas Code of Criminal Procedure deals with disqualification applications filed in criminal cases pending in county courts, Texas Government Code §74.059 pertains to the disqualification of Texas district court judges, Texas Government Code §26.011 contains a provision dealing with a constitutional county judge’s disqualification in criminal and non probate civil cases; and Texas Government Code §25.00255 covers disqualification of Texas probate judges.
In 1981 the Texas Supreme Court promulgated Rule 18 of the Texas Rules of Civil Procedure, which has become the most commonly invoked basis for seeking to disqualify Texas judges in civil cases. To recuse a judge in accordance with that provision, a party must file a verified and timely motion stating, with particularity, the grounds why the judge before whom the case is pending should not sit. The motion must also set forth facts that would be admissible in evidence, and copies of the motion must be served on all parties or their counsel of record; together with a notice that movant expects the motion to be presented to the judge three days after filing unless otherwise ordered by the judge.
1. To review materials provided by the Texas Municipal Courts Education Center which deal with the grounds and procedures for disqualifying a Municipal Court judge, click here
3. For a comprehensive overview of recusal and disqualification law in Texas which is updated annually see Flamm, R., Judicial Disqualification: Recusal and Disqualification of Judges, §§ 27.16 and 28.45 (“Texas”). See also “Judicial Disqualification and Recusal” a 2003 CLE program, in .pdf format, presented by Texas state court judges McKee and Fowler citing Richard Flamm, Judicial Disqualification: Recusal and Disqualification of Judges. Many Texas Law School and county law libraries have the current edition of Judicial Disqualification: Recusal and Disqualification of Judges click here for access.
4. To review a recent (Jan. 2014) NBC News article about a Tarrant County District Court judge’s decision to recuse from a case click here. For a recent (Jan. 2014) article about a motion to recuse a Kleberg County judge that was denied click here. For an August, 2013 Houston Chronicle article about a motion to recuse a judge in a bias suit click here