DISQUALIFICATION OF JUDGES & LAWYERS AND

RECUSAL OF JUDGES, INCLUDING THE VISITING

JUDICIARY:
INAPPROPRIATE BEHAVIOR

BRIAN L. WEBB
WEBB & TIHOLIZ, L.L.P.
717 N. Harwood, Suite 2730
Dallas, Texas 75201
(214) 871-2730
(214) 871-9339 fax

MIRIAM L. ACKELS
ASSOCIATE

MARRIAGE DISSOLUTION INSTITUTE

SAN ANTONIO, TEXAS
MAY 12 - 14, 1999
 ACKNOWLEDGMENTS

The author would like to thank Justice Wanda McKee Fowler, 14th Court of Appeals, and
Karen Vowell, Senior Staff Attorney, 14th Court of Appeals, for the use of their article, “COME ON
AND LET ME KNOW. . . SHOULD I STAY OR SHOULD I GO?” Judicial Removal on
Mandamus and On Appeal, for the Appellate Practice Course, September 24 - 25, 1998, Houston,
Texas, in preparation of this article. Additionally, the author would like to thank the authors of the
FAMILY LAW PRACTICE AND PROCEDURE manual, the late John Montgomery, Sally
Emerson and Brian L. Webb, in preparation of this article.
Disqualification of Judges & Lawyers . . . N-iii

TABLE OF CONTENTS

I. REMOVAL OF JUDGES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1. Historical Foundation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Removal in Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
B. The Difference Between Disqualification, Recusal,
and Objections to Assigned Judges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1. Types of Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2. Not Synonymous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3. Difference as to Grounds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
a. Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
b. Recusal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
c. Objections to Assigned Judges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
4. Difference as to Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
a. Disqualification and Recusal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(1) Motions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
(2) Texas Rule of Civil Procedure 18a(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
b. Objections to Assigned Judges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
5. Difference as to Relief Available . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
a. Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
b. Objections to Assigned Judges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
c. Recusal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
6. Difference as to Standards of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
a. When Raised in the Trial Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
b. When Raised for the First Time in the Appellate Court . . . . . . . . . . . . . . . . . . . . . . . 6
C. Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2. Source of Law for Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3. Grounds for Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
4. Disqualification Cannot Be Waived or Overcome . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
5. Procedures for Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
a. Motion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
b. Action by Judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(1) Practical Pointers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(2) Supposition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
6. When the Judge Is Disqualified . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
a. Trial Judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(1) The Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(2) The Proper Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
b. Appellate Judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(1) The Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
(2) The Proper Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
N-iv 1999 Marriage Dissolution Institute

7. Review of Disqualification Rulings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

a. Mandamus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
b. Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
8. Sanctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
9. The Caselaw and the Statutory Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
a. Issue: “Interested in the Case”Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(1) Type of Interest that Mandates Disqualification Law . . . . . . . . . . . . . . . . . . . . . 11
b. Issue: “Related by Affinity or Consanguinity” . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(1) Computing Affinity and Consanguinity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
(2) Specific Examples . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
(3) Relationship to Attorney in the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
c. Issue: “Counsel in the Case” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(1) Judge as Former Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
(2) Judge as Former Associate of Counsel or Firm Who Handled Case . . . . . . . . . 18
D. Recusal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2. Source of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
3. Grounds for Recusal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
4. Important Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
a. Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
b. Degrees of Relationship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
c. Financial Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
5. Procedure for Recusal When No Motion is Filed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
a. Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
b. Referral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
c. Action after Referral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
6. Procedure for Recusal When Motion is Filed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
a. When to File Motion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
b. Contents of the Motion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
c. Filing the motion and responding to it . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
7. Trial Judge Must Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
8. Duties of Presiding Judge or Judge Assigned to hear recusal . . . . . . . . . . . . . . . . . . . . . 24
9. Review of Rulings by Appeal or Mandamus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
a. Mandamus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
b. Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
10. Sanctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
11. Right to recuse may be forfeited or waived, and conditions
warranting recusal may be divested . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
a. Forfeiture or Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
b. Divesting the condition warranting recusal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
12. Appellate Recusal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
a. Grounds for recusal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
b. Procedure for recusal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
13. Source of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
14. Grounds for Objections Under Section 74.053 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
15. Procedures for Section 74.053 Objections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Disqualification of Judges & Lawyers . . . N-v

a. The Objection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
(1) When to File . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
(2) What to File . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
(3) Action by Judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
16. Important Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
a. “Hearing” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
b. “Retired Judge” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
c. “Former Judge” (Who is Not Retired) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
17. Objections Under Section 74.053 Can be Waived . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
18. Review of Section 74.053 Objections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
a. Mandamus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
E. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
II. DISQUALIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
B. Disqualifying Other Party’s Attorney and Grounds for Disqualification . . . . . . . . . . . 29
1. Conflict of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
2. “Chinese Wall” Defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
3. Planned as Witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
4. Related to Judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
5. Anticontact Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
6. Status as Judicial Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
7. No Specific Disciplinary Rule Applies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
8. Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
9. Remedy upon Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
10. Motion to Show Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
11. Mandamus is Appropriate Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
III. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
N–vi 1999 Marriage Dissolution Institute

SCOPE OF ARTICLE (1996). For example, under early Jewish law,

a judge was not to preside in any case in which
DISQUALIFICATION. RECUSAL. a party was a friend, kinsman, or someone the
These are words that send a slight chill up the judge personally disliked. See THE CODE OF
spines of all good attorneys. But how do you MAIMONIDES bk. xiv, ch. 23, 68-70 (A.
handle such situations . . . . GRACEFULLY? Hershman trans., 1949). Similarly, under the
Roman Code of Justinian, a litigant was
This article attempts to give the entitled to recuse a judge thought to be “under
practitioner a concise, basic and good suspicion,” even though he had been appointed
underst anding of how t o handle by imperial power, because the Romans
disqualifications of judges and attorneys, along believed that all litigants were entitled to a fair
with recusing various types of judges. trial. See CORPUS JURIS CIVILIS, codex,
lib 3, tit. 1, no. 16 (trans. In 9 CORNELL
The article is divided into to two L.Q.1, 3 n. 10 (1923)). These early
separate parts. Section I addresses “Removal procedures established the foundation for the
of Judges.” Section II addresses recusal and disqualification rules that generally
“Disqualifying Attorneys.” Each section still prevail in most civil-law countries.
includes cases that carry the day on analysis One of the earliest known cases in this
and holdings, along with some not so well country in which a judge removed himself
reasoned cases that the practitioner need to be from the bench is Martin v. Hunters Lessee, 1
on guard for. Wheat. 304 (1816). In that case, Justice
Marshall and his brother James were involved
Additionally, each section will cover in negotiations for the purchase of the
the relevant rules and code sections that the property that was the subject of the litigation
courts apply to each set of facts. We have also before the Court. Id. Justice Marshall’s
attached some forms in the “Appendix” for decision to remove himself because of a
your convenience. potential financial conflict illustrates the
emphasis placed on a litigant’s right to a
We hope this article will assist you and nonpart isan and object ive judicial
only help you in RARE situations!! determination.

I. REMOVAL OF JUDGES 2. Removal in Texas

“IF YOU SHOOT THE KING, YOU While judicial removal has only been of
BETTER KILL HIM!” occasional wide-spread public interest, it has
been of much concern to the state courts and
A. Introduction legislatures.1 When Texas became a state, it

1. Historical Foundation
1

The concept of a fair and impartial Recently the concept of

judiciary is as old as the history of the courts, judicial removal received
and rules designed to assure impartiality have considerable attention when
been recorded since ancient times. See during the O.J. Simpson trial,
Richard C. Flamm, Judicial Disqualification prosecutor Marcia Clark
in Florida, 70 FLORIDA BAR JOURNAL 58 announced her intention to ask
Judge Ito to recuse himself
Disqualification of Judges & Lawyers . . . N–vii

adopted the settled common law rule that which a judge is disqualified on objection of
stated a judge could not preside in a case in either party (or disqualifies himself or herself)
which he or she had a direct pecuniary interest. from hearing a lawsuit because of self interest,
See Robert w. Calvert, Disqualification of bias or prejudice.” BLACK’S LAW
th
Judges,47 Tex. B.J. 1330, 1332 (1984). Over DICTIONARY 1277 (6 ed. 1990) (emphasis
time, we enacted Constitutional provisions, added). This definition demonstrates why the
statues, and rules, which expanded the terms “recusal” and “disqualification” are often
common law. This section of the paper will used as synonyms; one is defined by reference
address the basic standards and recent case to the other, and both describe a process that
law governing judicial disqualification, recusal, removes a judge from presiding over a case.
and removal of assigned judges in civil In Texas, the terms have been used
matters. interchangeably. See William w. Kilgarlin and
Jennifer Bruch, Disqualification and Recusal
B. T h e D i f f e re n c e B e t w e e n of Judges, 17 ST. MARY’S L.J. 599, 601
Disqualification, Recusal, and Objections to (1986); Gulf Maritime Warehoulse Co. V.
Assigned Judges. Towers, 858 S.W.2d 556, 559 (Tex. App.--
Beaumont 1993, writ denied) (noting trial
1. Types of Removal court’s failure to distinguish between recusal
and disqualification); AmSav Group, Inc. v.
Judges may be removed from a American Sav. And Loan Ass’n of Brazoria
particular case because they are: (1) County, 796 S.W.2d 482, 485 (Tex. App.--
constitutionally disqualified, see TEX. Houston [14th Dist.] 1990, writ denied)
CONST. art. V, § 11, TEX. GOV’T CODE (stating that disqualification of judge on non-
ANN. § 21.005 (Vernon Supp. 1998), TEX. constitutional grounds is waived if not raised
R. CIV. P. 18b(1); TEX. R. APP. P. 16.1; (2) by proper motion to recuse). Such use,
recused under rules promulgated by the however, is erroneous because recusal and
Supreme Court, see TEX. R. CIV. P. 18b(2); disqualification are not synonymous terms.
TEX. R. APP. P. 16.2; or (3) subject to a See In re Union Pacific Resources Co., 969
statutory strike. See TEX. GOV’T CODE S.W.2d 427, 428 (Tex. 1998); Sun
ANN. 74.053 (Vernon Pamph. 1998). The Exploration and Prod. Co. V. Jackson, 783
requirements and procedures for each type S.W.2d 202, 207 (Tex. 1989) (Gonzalez, J.,
removal are fundamentally different. See concurring); Keene Corp v. Rogers, 863
Union Pacific, 969 S.W.2d at 428. S.W.2d 168, 183 (Tex. App--Texarkana 1993,
no writ); Aguilar v. Anderson, 855 S.W.2d
2. Not Synonymous 799, 809 (Tex. App--El Paso 1993, writ
denied).
Black’s defines recusal as “the process by The third type of judicial removal is
statutorily based. See TEX. GOV’T CODE
ANN. § 74.053 (Vernon Pamph. 1998). While
from further often referred to by courts and attorneys as
participation in the trial disqualification or recusal, it is an independent
because of his marital basis for removal based on the assignment of
relationship with a a judge to preside over a case. Id. Referring
po t ent ial wit ness. to this type of removal in terms of the other
Clark’s request was two methods is incorrect and merely adds to
dropped the following the confusion.
day.
N–viii 1999 Marriage Dissolution Institute

3. Difference as to Grounds If the judge does not fall into one of the
enumerated disqualifications, he or she cannot
a. Disqualification be disqualified.

The grounds for disqualification are b. Recusal

expressly stated in the Texas Constitution. See
TEX. CONST. Art. V, § 11. They are limited Recusal, however, is not as clearly
to the following three instances: (1) where the defined; rather, recusal embraces the myriad of
judge is interested in the case; (2) where the instanced in which a judge’s neutrality could
judge in too closely related to a party by be questioned. See TEX. R. CIV. P. 18b(2).
affinity (marriage) or consanguinity (blood); Descriptions of the situations upon which
and (3) where the judge has acted as an recusal may be based are stated in rule 18b(2).
attorney in the case. These same grounds are Id.
reiterated in rule 18b(1) of the Texas Rules of
Civil Procedure. See TEX. R. CIV. P. 18b(1). c. Objections to Assigned Judges
One of the bases for disqualification, relation
by affinity or consanguinity within the third The third method for removal of
degree, has been codified in the Texas judges, which is found in Chapter 74 of the
Government Code.2 See TEX. GOV’T ANN. Texas Government, provides for the objections
§ 21.005 (Vernon Supp. 1998). The grounds to assigned judges. See TEX. GOV’T CODE
for disqualification are inclusive and exclusive. ANN. §§ 74.052(a), 74.053(b), (d) (Vernon
Pamph. 1998). Removal under Chapter 74
arises when a judge is assigned to preside over
2
a case. See TEX. GOV’T CODE ANN. §
74.053 (Vernon Pamph. 1998).
P r e v i o u s l y, a ll o f t h e
disqualificat ion gro unds 4. Difference as to Waiver
delineated in the constitution
wer e co dified in t he a. Disqualification and Recusal
government code. See TEX.
REV. CIV. STATE. ANN. art. (1) Motions
15 (Vernon 1969), repealed by
Act of September 2, 2987, 70th A most distinguishing feature between
Leg.., R.S., ch. 148, § 2.01, constitutional disqualification and recusal is
1987 Tex. Gen. Laws 543, 544 that recusal is waived if not raised in a proper
(current version at TEX. motion. See Union Pacific, 969 S.W.2d at
GOV’T CODE ANN. § 428; Merendino v. Burrell, 923 S.W.2d 258,
21.005 (Vernon Supp. 1998)). 262 (Tex. App. --Beaumont 1996, writ
After repeal, however, the denied). Disqualification, however survives
gover nment code only silence. See Union Pacific, 969 S.W.2d at
embodied one of the three 428; Merendino, 923 S.W.2d at 262; gulf
grounds contained in the Maritime Warehouse Co. V. Towers, 858
constitution, relation by affinity S.W.2d 556, 560 (Tex. App.--Beaumont 1993,
or consanguinity within the writ denied). While a party may certainly raise
third degree. See TEX. the issue of disqualification by filing a motion
GOV’T CODE ANN. § with the trial or appellate court, see Cameron
21.005 (Vernon Supp. 1998).
Disqualification of Judges & Lawyers . . . N–ix

v. Greenhill, 582 S.W.2d 775, 776 (Tex. S.W.2d at 262; Towers, 858 S.W.2d at 560,
1979), a motion is not required to preserve the and that disqualification may be raised at any
issue for review. See Union Pacific, 969 time by a party or the court. See Glaser, 632
S.W.2d at 428; Merendino, 923 S.W.2d at S.W.2d at 148; Monroe, 946 S.W.2d at 542
262; Towers, 858 S.W.2d at 560. (citing Lee, 555 S.W.2d at 122; City of
Disqualification may be raised at any time. See Houston, 530 S.W.2d at 868; Pinchback, 341
Buckholts Indep. Sch. Dist. V. Glaser, 632 S.W.2d at 553); Alvarez, 915 S.W.2d at 165
S.W.2d 146, 148 (Tex. 1982); Monroe v. (citing Fry, 202 S.W.2d at 221-22).
Blackmon, 946 S.W.2d 533, 542 (Tex. App. --
Corpus Christi 1997, orig. proceeding); b. Objections to Assigned Judges
Alvarez, 915 S.W.2d at 165 (citing Fry v.
Tucker, 146 Tex. 18, 202 S.W.2d 218, 221-22 Though many courts refer to removal
(1947)). Moreover, either a trial court or an under Chapter 74 of the Texas Government
appellate court may raise the question of Code as “disqualification,” it is more like
disqualification on its own motion. See recusal on the issue of waiver. A complaint
Monroe, 946 S.W.2d at 542 (citing Lee v. based on an assigned judge’s refusal to remove
State, 555 S.W.2d 121, 122 (Tex. Crim. App. himself or herself is waived if the complaining
1977)); City of Houston v. Houston lighting party does not present a timely objection to the
and Power Co., 530 S.W.2d 866, 868 (Tex. assigned judge. See Perkins v. Groff, 936
Civ. App. --Houston [14th Dist.] 1975, writ S.W.2d 661, 667 (Tex. App. --Dallas 1996,
ref’d n.r.e.); Pinchback v. Pinchback, 341 writ denied); Alvarez, 915 S.W.2d at 166.
S.W.2d 549, 553 (Tex. Civ. App. --Fort Without a timely objection, the assigned judge
Worth 1960, writ ref’d n.r.e.)); Towers, 858 is not subject to mandatory removal under
S.W.2d at 560 (citing same). section 74.053. See Tivoli Corp. V. Jewelers
Mut. Ins. Co., 932 S.W.2d 704, 709 (Tex.
(2) Texas Rule of Civil Procedure 18a(a) App.--San Antonio 1996, writ denied).

Texas Rule of Civil Procedure 18a 5. Difference as to Relief Available

purports to apply equally to disqualification
and recusal. See TEX. R. CIV. P. 18a (setting a. Disqualification
rules and procedures). It is obvious, however,
that the procedures outlines in rule 18a are Whether a party is entitled to request
inapplicable to disqualification. See William mandamus relief, or must wait and raise the
W. Kilgarlin and Jennifer Bruch, complaint on appeal, depends upon the type of
Disqualification and Recusal of Judges, 17 removal procedure involved. When a judge
ST. MARY’S L.J. 599, 601 (1986). For sits in violation of a constitutional
example, the rule requires that a verified proscription, mandamus is available to compel
motion, stating the grounds why the judge the judge’s mandatory disqualification without
before whom the case is pending should not showing that the relator lacks an adequate
sit, be filed at least ten days before the date set remedy by appeal. See Union Pacific 969
for trial or other hearing. See TEX. R. CIV. S.W.2d at 428; Palais Royal, Inc. v. Partida,
P. 18a(a). This portion of the rule cannot be 916 S.W.2d 650, 653 (Tex. App. --Corpus
applicable to disqualification in light of the Christi 1996, orig. proceeding [leave denied]
numerous decisions from the Texas courts (emphasis added). The availability of
holding that no motion is necessary, see Union mandamus relief does not, however, foreclose
Pacific, 969 S.W.2D at 428; Merendino, 923 direct appellate review in instances where
N–x 1999 Marriage Dissolution Institute

mandamus is not sought. See McElwee v. 533, 536 (Tex. App. --Corpus Christi 1997,
McElwee, 911 S.W.2d 182, 186-87 (Tex. orig. proceeding) (holding that where attorney
App.--Houston [1st Dist.] 1995, writ denied) for litigant concurrently represented trial judge
(addressing judicial disqualification on direct in another matter, appeal was inadequate to
appeal); cf. Anderson Producing Inc. v. Koch correct denial of motion to recuse). Rule
Oil Co., 929 S.W.2d 416, 424 (Tex. 1996) 18a(f) specifically provides that the denial of a
(addressing attorney disqualification on direct motion to recuse (or disqualify) may be
appeal); Arzate v. Hayes, 915 S.W.2d 616, reviewed for abuse of discretion on appeal
618 n.2 (Tex. App. --El Paso, 1996, writ from the final judgement. See TEX. R. CIV.
dism’d) (same). See also Pope v. Stephenson, P. 18a(f) (emphasis added).
787 S.W.2d 953, 954 (Tex. 1990) (stating that Before Monroe, the only instance in
failure to file writ of mandamus does not which mandamus was been found to be
prejudice or waive right to complain on appropriate to review action on a motion to
appeal.) recuse is where the trial court failed to comply
with its duty under rules 18a(c) & (d) to either
b. Objections to Assigned Judges recuse itself or refer the motion. See Monroe,
946 S.W.2d at 540 n.1 (Dorsey, J., dissenting);
Likewise, under section 74.053, once see also TEX. R. CIV. P. 18a(c) & (d). When
a party properly objects, any orders entered by the trial court refuses to refer the motion to
the objectionable judge are void. See Union the administrative judge, or another judge
Pacific, 969 S.W.2d at 428 (citing Mitchell designated by the administrative judge, the
Energy Corp. V. Ashworth, 943 S.W.2d 436, movant has no opportunity to develop a record
440-41; Fry, 202 S.W.2d at 221). on the motion, and without a record, has no
Accordingly, the objecting party is entitled to adequate remedy by appeal. See Winfield v.
mandamus relief without showing there is no Daggett, 846 S.W.2d 920, 922 (Tex. App. --
adequate remedy by appeal. See Union Houston [1st Dist.] 1993, orig. proceeding).
Pacific, 969 S.W.2d at 428; Mitchell Energy, Accordingly, mandamus is appropriate in that
943 S.W.2d at 437; Dunn v. Street 938 situation. Id.
S.W.2d 33, 35 (Tex. 1997); In re City of
Wharton, 966 S.W.2d 855, 857 (Tex. App. -- 6. Difference as to Standards of Review
Houston [14th Dist.] 1998, orig. proceeding),
overruled sub. non. on other grounds, 41 Tex. a. When Raised in the Trial Court
Sup. Ct. J. 1354 (August 25, 1998).
The only common element shared by
c. Recusal all three types of removal is the standard of
review. When any type of removal issue is
In contrast, the erroneous denial of a raised in the trial court, and the court denies
motion to recuse does not void or nullify the the requested relief, the standard of review
trial court’s subsequent acts. See Union upon appeal or mandamus is abuse of
Pacific, 969 S.W.2d at 428. Thus, mandamus discretion. See Union Pacific, 969 S.W.2d at
is not available to challenge an improper denial 428 (recusal and disqualification); Mitchell
of a recusal motion. Id. But see id. (Hecht, J., Energy, 943 S.W.2d at 437 (objections under
concurring) (stating that the rule that appeal section 74.053(d)); Meredino, 923 S.W.2d at
affords an adequate remedy for an erroneous 262 (recusal); City of Wharton, 966 S.W.2d at
denial of a motion to recuse cannot be without 858 (objections under section 74.053(d)).
exception); Monroe v. Blackman, 946 S.W.2d
Disqualification of Judges & Lawyers . . . N–xi

b. When Raised for the First Time in the adopted in 1891, without change of verbiage
Appellate Court with respect to disqualification of judges, the
court could not right give the language a
When, however, the issue of disqualification is different meaning form that ascribed to the
raised for the first time on appeal, the appellate same language in the previous constitutional
court uses a de novo standard of review. See provisions.”) The only change occurred in
McElwee, 911 S.W.2d at 185. This standard 1891, when the article was amended to include
is only applicable to disqualification, because the Court of Criminal appeals and the
neither recusal nor objections to assigned intermediate appellate courts. Id.
judges may be raised for the first time in the
appellate court. See Union Pacific, 969 2. Source of Law for Disqualification
S.W.2d at 428 (recusal waived if not raised by
proper motion in trial court); Merendino, 923 The original source for disqualification
S.W.2d at 262 (same); Perkins, 936 S.W.2d at in Texas is the constitution. Article V, section
667 (objections under section 74.053(d) 11 enumerates the circumstances in which a
waived if not raised by timely motion in trial judge is disqualified from sitting in a case.
court); Alvarez, 915 S.W.2d at 166 (same). TEX. CONST. art. V, § 11. The Texas
Supreme court has essentially restated the
C. Disqualification constitutional grounds for disqualification in
rule 18b(1) of the Texas Rules of Civil
1. Introduction Procedure. See TEX. R. CIV. P. 18b(1).
Finally, the Texas Legislature has included and
The early common law approach to clarified one of the constitutional
disqualification was simple: a judge with a disqualification grounds in the statues. See
direct pecuniary interest was disqualified. See TEX. GOV’T CODE ANN. § 21.005 (Vernon
TEX. CONST. art. V, § 11, interp. Supp. 1998); see also TEX. GOV’T CODE
commentary (Vernon 1993). There were no ANN. § § 573.021-573.025 (Vernon 1994 &
other grounds for disqualification. The law Supp. 1998) (determining and computing
soon recognized, however, that there might be affinity and consanguinity).
other instances in which disqualification was
appropriate. In the United States, 3. Grounds for Disqualification
contemporary disqualification practice is
broader than the original common law. Id Article V, section 11 provides that
When the authors of the first Texas disqualification of a judge can occur in only
constitution faced the issue of disqualification, three instances: (1) where the judge is
they sought to draw a line that would prevent interested in the case; (2) where the judge is
abuse of power by judges and abuse of the related to any party be affinity or
privilege of disqualification. Id. The original consanguinity, as may be defined by law; and
framer were apparently successful because the (3) where the judge has acted as an attorney in
disqualification provisions contained in the the case. Id. Texas courts have long held
Constitution of 1845 have been carried these grounds are exclusive and no other bases
forward into all later Texas constitutions (ca. for involuntary disqualification exist. See, e.g.,
1861, 1866, 1869), including the present one Love v. Wilcox, 119 Tex. 256, 28, S.W.2d
(ca. 1876). Id.; see also Love v. Wilcox, 28 515, 518 (1930); Taylor v. Williams, 26 Tex.
S.W.2d 515, 518 (Tex. 1930) (stating that 583, 587 (1863).
“[when our present judicial amendment was Section 21. 005 of the Texas
N–xii 1999 Marriage Dissolution Institute

Government Code, which restates the ground McGee, 356 S.W.2d 666, 668 (Tex. 1962);
relating to affinity and consanguinity, provides Fry 202 S.W.2d at 221; Meredino v. Burrell,
that neither a judge nor justice of the peace 923 S.W.2d 258, 262 (Tex. App. --Beaumont
may sit in a case if either of the parties is 1996, writ denied); McElwee v. McElwee, 911
related to him by affinity or consanguinity S.W.2d 182, 186 (Tex. App.--Houston [1st
within the third degree. TEX. GOV’T CODE Dist.] 1995, writ denied).
ANN. § 21.005 (Vernon Supp. 1998); see also Disqualification may be raised at any
TEX. GOV’T CODE ANN. §§ 573.021- time See Glaser, 632 S.W.2d at 148; Fry, 202
573.025 (Vernon 1994 & Supp. 1998) S.W.2d at 222. It may even be raised for the
(determining and computing affinity and first time in a motion for rehearsing in the
consanguinity). court of appeals, see Glaser, 632, S.W.2d at
Rule 18b(1) essentially restates the 148, or in a collateral attack on the judgment.
constitutional grounds and provides that See Gulf Maritime Warehouse Co. v. Towers,
judges must disqualify themselves in all 858 S.W.2d 556, 560 (Tex. App. --Beaumont
proceedings in which: (1) they have served as 1993, writ denied) (citing Lee v. State, 555
a lawyer in the case, or a lawyer with whom S.W.2d 121, 124 (Tex. Crim. Appl. 1977); and
they previously practiced law served during Ex parte Washington, 442 S.W.2d 391, 393
that association as a lawyer in the case; (2) (Tex. Crim. App. 1969)).
they know that, individually or as a fiduciary, Moreover, disqualification may not
they have an interest in the subject matter in only be raised at any time by the parties, but
controversy; or (3) either of the parties may be either a trial court or an appellate court may
related to them by affinity or consanguinity raise the issue of disqualification on its own
within the third degree. See TEX. R. CIV. P. motion. See McElwee, 911 S.W.2d at 186;
18b(1) (emphasis added). The italicized Gulf Maritime, 858 S.W.2d at 560.
portions do not appear in Article V, section
11. These additions represent the 5. Procedures for Disqualification
interpretation placed on the constitutional
grounds by the courts. The heading of this subsection is
somewhat misleading. This is because it is
4. Disqualification Cannot Be Waived or unclear whether any true, mandatory
Overcome p r o c e d u r e s g o ve r n c o nst it ut io na l
disqualification. Rule 18a of the Texas Rules
The disqualification rules in Article V, of Civil Procedure purports to apply to recusal
section 11 are expressed in unconditional and disqualification. See TEX. R. CIV.
language, and are regarded as mandatory and P.18a. It is obvious, however, that many of
to be “rigidly enforced.” See Fry v. Tucker, the procedures outlines in rule 18a do not
146 Tex. 18, 202 S.W.2d 218, 221 (1947). apply to disqualification.
Disqualification affects a judge’s jurisdiction
and power to act. See Postal Mut. Indemnity a. Motion
Co. V. Ellis, 140 Tex. 570, 169 S.W.2d 482,
484 (1943). Therefore, disqualifications, like For example, subsection (a) of rule 18a
other jurisdictional barriers, cannot be waived. states that a motion must be filed at least ten
See In re Union Pacific Resources Co., 969 days before the date of trial or other hearing
S.W.2d 427, 428 (Tex. 1998); Buckholts stating the grounds for the removal. See TEX
Indep. Sch. Dist. v. Glaser, 632 S.W.2d 146, R. CIV. P. 18a (a). The rule requires that the
148 (Tex. 1982); Indemnity Ins. Co. v. motion be verified and state with particularity
Disqualification of Judges & Lawyers . . . N–xiii

the grounds for removal. Id. These Since the adoption of rule 18a,
procedures must be followed to preserve error however, some courts have held that a motion
for recusal (See section D.11.a); however, as to disqualify (which was, notably, combined
we have already stated, disqualification may be with a motion to recuse) must be referred to
raised at any time, See Glaser, 632 S.W.2d at the presiding judge for further proceedings.
148; Fry, 202 S.W.2d at 222, and thus, a See Bourgeois v. Collier, 959 S.W.2d 241,
motion is obviously not required to preserve 245-246 (Tex. App.--Dallas 1997, no writ);
the issue for appellate review. See Jennings v. Gulf Maritime Warehouse Co. v. Towers, 858
Garner, 721 S.W.2d 445, 446 (Tex. App. -- S.W.2d 556, 560 (Tex. App.--Beaumont 1993,
Tyler 1986, no writ.) writ denied). In Bourgeois, the Dallas Court
We do not mean to suggest that of Appeals specifically held the referral
practitioners should not file a motion. On the procedure of rule 18a(d) applied, and thus, the
contrary, filing a motion to disqualify, as soon trial judge was not authorized to rule on the
as it becomes apparent that the judge should motion and was required to forward it to the
remove himself, is the best course of action. presiding judge for further action. Id. at 246.
See Cameron v. Greenhill, 582 S.W.2d 775, In Gulf Maritime, the Beaumont court, after
776 (Tex. 1979) (noting that party filed expressly noting the difference between recusal
motion to disqualify). We simply note here and disqualification stated:
that a “timely,” “verified,” “particularized”
motion is not required, as it is with recusal, to Where the question of
preserve the issue for later review. See disqualification was raised by
Glaser, 632 S.W.2d at 148; Fry, 202 S.W.2d both appellee. . . and appellant
at 222. . . .we believe that it became
incumbent upon [the trial
court] to give strict heed to the
b. Action by Judge provisions of Rule 18a(c) and
(d) by referring this matter to
Rule 18a(a) requires a judge to either the administrative judge for
recuse herself or forward the recusal motion to further proceedings.
the presiding judge to assign a judge to hear
the motion. See TEX. R. CIV. P. 18a(c). It is See Gulf Maritime, 858 S.W.2d at 560.
unclear whether this procedure is required for
mo t io ns based o n c o nst it ut io na l (1) Practical Pointers
disqualification.
In light of the confusion concerning the
Before the adoption of rule 18a, applicability of the referral procedures of rule
several courts found it unnecessary for the trial 18a, those seeking disqualification may want
judge to forward a true disqualification motion to seek mandamus review if the trial judge
to the presiding judge. See Maxey v. Citizens sought to be disqualified rules on the motion
Nat’l Bank of Lubbock, 489 S.W.2d 697, 702 himself. In support of the petition for writ of
(Tex. Civ. App.--Amarillo 1972), rev’d on mandamus, the practitioner can argue: (1) rule
other grounds, 507 S.W.2d 722 (Tex. 1974); 18a, by its own terms, applies to both recusal
Pinchback v. Pinchback, 341 S.W.2d 549, 553 and disqualification; (2) some courts have
(Tex. Civ. App.--Fort Worth 1960, writ ref’d required a disqualification motion to be
n.r.e.); Pahl v. Whitt, 304 S.W.2d 250, 252 referred to the presiding judge; and (3) it is
(Tex. Civ. App.--El Paso 1957, no writ). illogical and unsupportable by sound legal
N–xiv 1999 Marriage Dissolution Institute

reasoning to allow a trial judge to rule on a judge, is constitutionally disqualified, the

motion to disqualify directed to him, but procedure for replacing that judge is governed
refuse to allow him to rule on a similarity by the Texas Constitution. See TEX. CONST.
directed motion to recuse. art. V, § 11. The constitution provides that
The practitioner opposing the petition when a trial judge is disqualified, there are two
for writ of mandamus should argue rule 18a methods for replacing the judge: (1) the parties
does not, in all respects, apply to may agree to the appointment of a qualified
disqualification, and therefore, should not with judge to try the case; or (2) if the parties
regard to referral. Moreover, there is a sound cannot agree, another judge may be appointed,
legal basis for allowing the trial judge to rule as prescribed by law, to try the case. Id.
on disqualification motions, but not on recusal Chapter 74 prescribes the proper
motions: the grounds for disqualification are assignment of judges. Section 74.052
limited and exclusive, while the grounds for provides that judges may be assigned in the
recusal are legion (limited only by the manner provided by Chapter 74 to hold court
attorney’s imagination) and more intangible. when necessary to dispose of business in the
It is one thing to ask a trial judge to determine region. See TEX. GOV’T CODE ANN.§
if she has a direct financial interest in the 74.052 (Vernon 1988). Section 74.054
matter, previously acted as an attorney in the provides that the presiding judge of the
matter, or is related to a party within the third administrative region in which the assigned
degree. These things capable of determination judge resides may assign certain judges as
from outside sources. necessary to dispose of business in the region
It is another matter entirely to ask a including: (1) regular district, constitutional
trial judge to rule that he has a personal bias or county, and statutory county judges; (2)
prejudice relevant to the matter or one of the certain former and retired district and appellate
parties. judges; and (3) active appellate court judges
who have had trial court experience. See
(2) Supposition TEX. GOV’T CODE ANN. § 74.054(a)
(Vernon Pamph. 1998). The presiding
If disqualification motions are referred administrative judge may not, however, assign
to the presiding judge, one could reasonably a regular constitutional county court judge to
assume the procedures governing the presiding hear a matter pending in a district court
judge’s duties with respect to recusal motions outside the county of the judge’s residence,
control. (See section D.8.). The same would and can only assign a constitutional county
presumably be true as to the duties of the court judge, as long as that judge is a licensed
judge assigned by the presiding judge to hear Texas attorney to sit for another constitutional
the motion, subject to the procedures in article county court judge. See TEX. GOV’T CODE
V, section 11 of the Texas Constitution. (See ANN. § 74.054 (b)-(c) (Vernon Pamph.
section D.8.). 1998).

6. When the Judge Is Disqualified (2) The Proper Procedure

a. Trial Judge When a trial judge determines that she

is disqualified from hearing a case, the judge
(1) The Applicable Law should request the presiding judge of the to
appoint a proper judge to hear a case. See
When a judge, other than an appellate TEX. GOV’T CODE ANN. § 74.054(a)
Disqualification of Judges & Lawyers . . . N–xv

(Vernon Pamph. 1998); see also William W. not always mandate the appointment of a
Kilgarlin and Jennifer Bruch, Disqualification special judge by the governor because the
and Recusal of Judges, 17 ST. MARY’S L.J. remaining judges or justices, who are qualified,
599, 632 (1986) (citing Hidalgo & Cameron are of sufficient number to decide the case if
Counties Water Control & Improvement Dist. they constitute a quorum. See Nalle v. City of
No. 9 v. Starley, 373 S.W.2d 731, 732-33 Austin, 85 Tex. 520, 537-38, 22 S.W. 668,
(Tex. 1964). 671 (1893); Long v. State, 59 Tex. Crim. 103,
115, 127 S.W.2d 551, 558 (1910); Marshburn
b. Appellate Judge v. Stewart, 295 S.W. 679, 697 (Tex. Civ. App.
--Beaumont, 1927, writ dism’d); Hoyt v. Hoyt,
(1) The Applicable Law 351 S.E.2d 111, 114 (Tex. Civ. App.--Dallas
1961, writ dism’d w.o.j.) (opinion on reh’g).
When any member of the Texas
Supreme Court, the Texas Court of Criminal 7. Review of Disqualification Rulings
Appeals, or the Texas Court of Appeals is
disqualified, the constitution provides that the a. Mandamus
disqualification shall be certified to the
governor. See TEX. CONST. art. V, § 11.
The governor must then immediately
commission the necessary number of judges When a judge is constitutionally disqualified,
for the determination of the case. Id. but refuses to remove himself from the case,
the party seeking disqualification is entitles to
(2) The Proper Procedure mandamus relief. See In re Union Pacific
Resources Co., 969 S.W.2d 427, 428 (Tex.
The procedure to be followed is set 1998); Palais Royal, Inc. v. Partida, 916
forth in the constitution: the appellate judge S.W.2d 650, 653 (Tex. App.--Corpus Christi
who is disqualified certifies her disqualification 1996, orig. proceeding.)
to the governor, who then appoints a special Mandamus is appropriate to challenge
judge to preside in her place. See TEX. a trial court’s refusal to disqualify itself
CONST. art. V, § 11; see also William w. because any orders or judgments rendered by
Kilgarlin and Jennifer Bruch, Disqualification a constitutionally disqualified judge are void
and Recusal of Judges, 17 ST. MARY’S L.J. and without effect. See Union Pacific, 969
599, 632 (1986) (citing Nueces County S.W.2d at 428 (citing Glaser, 632 S.W.2d at
Drainage & Conservation Dist. No. 2 v. 148; Fry, 202 S.W.2d at 221). But see
Bevly, 519 S.W.2d 938, 950 (Tex. Civ. App.-- Wallace v. State, 138 Tex. Crim. 625, 138
Corpus Christi 1975, writ ref’d n.r.e)); S.W.2d 116, 117 (1940) (holding that order by
Boynton Lumber Co. V. Houston Oil Co. of disqualified judge requiring court reporter to
Texas, 189 S.W. 749 (Tex. Civ. App.-- make statement of facts was purely ministerial,
Beaumont 1916, writ dism’d w.o.j.) (opinion non-discretionary act and not one judge was
on reh’g). prohibited from rendering); Chilicote Land
It is not necessary, however, in every Co. v. Houston Citizens Bank & Trust Co.,
instance of disqualification on an appellate 525 S.W.2d 941. (Tex. Civ. App.--El Paso
justice or judge, to certify a disqualification to 1975, no writ) (holding that disqualified judge
the governor, or for the governor to is incapacitated from taking any action that
commission a judge or judges. The requires exercise of judicial discretion). The
disqualification of one justice or judge does supreme court has long held that mandamus
N–xvi 1999 Marriage Dissolution Institute

will lie in the case of a void order, and that it is S.W.2d at 186.
unnecessary for the relator to pursue other
remedies even if they exist. See Dikeman v. 8. Sanctions
Snell, 490 S.W.2d 183, 186 (Tex. 1967);
Fulton v. Finch, 162 Tex. 351, 346 S.W.2d As with the procedures applicable to
823, 827 (1961); see generally Karen R. disqualification, there is a question as to the
Vowell, “Writ” Happens: A Practical Guide availability of sanctions for frivolous motions
to Seeking Extraordinary Relief When It Does, to disqualify. Rule 18a provides that if a party
Eighth Annual conference on State and files a “motion to recuse” and the motion is
Federal Appeals (1998) (discussing the brought solely for delay and without sufficient
relationship between mandamus and void cause, the trial court may impose any sanction
orders). It would be anomalous to require an authorized by rule 215(2)(b) of the Texas
order, void upon its face, to be appealed from Rules of Civil Procedure. See TEX. R. CIV.
before it is treated as a nullity and disregarded. P. 18a(h).
See Fulton, 346 S.W.2d at 830. As we noted before, rule 18a purports
to apply to recusal and disqualification, but
b. Appeal subsection (h) specifically refers to motions to
recuse. Id. There is a solution to this
Though mandamus relief is available, problem, and it is found in rule 13 of the Texas
this does not foreclose the right to complain of rules of Civil Procedure.
constitutional disqualification on direct appeal. If rule 18a(h) applies only to motions
See McElwee v. McElwee, 911 S.W.2d 182, to recuse, and is thereby inapplicable to
186-87 (Tex. App. --Houston [1st Dist.] 1995, motions to disqualify, sanctions are still
writ denied) (addressing issue of constitutional available under rule 13. Rule 13 applies not
disqualification on direct appeal.) In other only to pleadings, but motions and other
words, requesting mandamus relief is not a papers. See TEX. R. CIV. P. 13. The rule
mandatory prerequisite to review by direct provides that the filing of motions or other
appeal. See Pope v. Stephenson, 787 S.W.2d papers containing groundless or false
953, 954 (Tex. 1990) (stating that failure to statements, for the purposes of delay, may
file writ of mandamus does not prejudice or subject a party to sanctions under rule
waive right to complain on appeal.) 215(2)(b). Id. These are the same sanctions
The filing of a writ of mandamus that are available under rule 18a(h). Compare
would, nevertheless, be a better procedure TEX. R. CIV. P. 13. with TEX. R. CIV. P.
than awaiting the outcome of a full trial on the 18a(h). The only difference is that rule 13
merits because disqualification should not be sanctions require a finding of “good cause”
allowed to interfere with the fair disposition of before sanctions are imposed, and rule 18a(h)
a suit. See Hall v. Birchfield, 718 S.W.2d states sanctions may be imposed “in the
313, 322 n.1 (Tex. App.--Texarkana 1986), interest of justice.” Id.
rev’d on other grounds, 747 S.W.2d 361 (Tex.
1987). 9. The Caselaw and the Statutory Law
If the issue of disqualification is raised
for the first time on appeal, and it is unclear a. Issue: “Interested in the Case”
whether the trial judge should have been
disqualified, the appellate court may abate the “No judge shall sit in any case
appeal and return the matter to the trial court wherein he may be interested .
for an evidentiary hearing. See McElwee, 911 . .” TEX. CONST. art. V, §
Disqualification of Judges & Lawyers . . . N–xvii

11. things, that a trial judge’s potential interest in

a class action suit, where the class was not yet
(1) Type of Interest that Mandates certified, was too remote to automatically
Disqualification disqualify the judge. 916 S.W.2d at 653.
The court also found that the fact that
(a) Cameron v. Greenhill, 582 S.W.2d 775 the judge’s wife was a credit card customer of
(Tex. 1979). This case recognizes the settled one of the parties did not vest the judge with a
principle of law that the interest which direct pecuniary interest in the subject matter
disqualifies a judge is that interest, however, of the litigation. Id.
small, which rests upon a direct pecuniary
interest in the result of the case at the time of (d) Macey v. Citizens Nat’l Bank of Lubbock,
the suit. Id. at 776. See also Sun Oil Co. v. 489 S.W.2d 697 (Tex. Civ. App.--Amarillo
Whitaker, 483 S.W.2d 808, 823 (Tex. 1972); 1972), rev’d on other grounds, 507 S.W.2d
Hidalgo County Water Improvement Dist. No. 722 (Tex. 1974). Mere bias and prejudice do
2 v. Blalock, 157 Tex 206, 301 S.W.2d 593 not constitute an “interest” sufficient to
(1957); City of Dallas v. Peacock, 89 Tex. 58, constitutionally disqualify a judge. See also
33 S.W.220 (1895); King & Davidson v. Sapp, Taylor v. Williams, 26 Tex. 583 (1863);
66 Tex. 519, 2 S.E. 573 (1886); Taylor v. Querner Truck Lines, Inc. v. Alta Verde
Williams, 26 Tex. 583 (1863); Palais Royal, Indus., Inc., 747 S.W.2d 464, 470 (Tex. App.-
Inc. v. Partida, 916 S.W.2d 650, 653 (Tex. -San Antonio 1988, not writ). But see
App. --Corpus Christi 1996, [leave denied]); McClenan v. State, 661 S.W.2d 108, 109
Blanchard v. Krueger, 916 S.W.2d 15, 19 (Tex. Crim. App. 1983) (holding that in
(Tex. App.--Houston [1st Dist.] 1995, orig. criminal cases bias might be grounds for legal
proceeding). disqualification if that bias was “shown to be
of such a nature and to such an extent as to
(b) Love v. Wilcox, 119 Tex. 256, 28 S.W.2d deny a defendant due process of law.”); Elam
515, 518-19 (1930). The case states that the v. State, 841 S.W.2d 937, 939 (Tex. App.--
disqualifying interest must be direct, real and Austin 1992, no pet.) (recognizing
certain, i.e., an interest that is capable of McClenan); Lovely v. State, 894 S.W.2d 99,
monetary valuation. See also Hubbard v. 103 (Tex. App. --Beaumont 1995, pet. ref’d)
Hamilton County, 113 Tex. 547, 261 (same); Stafford v. State, 948 S.W.2d 921,
S.W.990, 991 (1924); Narro Warehouse, Inc. 924 (Tex. App.--Texarkana 1997, pet. ref’d)
v. Kelly, 530 S.W.2d 146 (Tex. Civ. App. -- (same).
Corpus Christi 1975, writ ref’d n.r.e.).
Practical Tip: Because the Court of
(c) Palais Royal, Inc. v. Partida, 916 S.W.2d Criminal Appeals has obviously added “bias
650 (Tex. App.--Corpus Christi 1996, [leave that denies due process” to the list of
denied]). For disqualification purposes, the constitutional disqualifications, the practitioner
pecuniary interest to the judge must be an in a civil case might attempt the same
immediate result of the judgement to be argument in the proper case. After all, due
rendered in the pending case, and not result process is recognized in the civil context as
remotely, or at some future date, from the well as the criminal! We recognize that the
general operation of law upon the status fixed Texas Supreme Court rejected a specific “due
by the judgement. Id. At 653. See also Love, process” argument in Cameron v. Greenhill,
28 S.W.2d at 519; Narro, 530 S.W.2d at 149. 582 S.W.2d at 776-77; however, the opinion
In Partida, the court found, among other was seemingly limited to the specific due
N–xviii 1999 Marriage Dissolution Institute

process argument raised in that case, i.e., 1975, writ ref’d n.r.e.) (also noting this is the
whether it was a due process violation for the law in most states).
justices who ordered the submission of a Specifically, taxpayer status has never
referendum of the fee assessment to determine been deemed a sufficient interest to warrant
the legality of such assessment. Id. At 777. disqualification. See Rio Grande Valley, 962
Moreover, Cameron was decided before S.W.2d at 639; Hubbard v. Hamilton County,
McClenan, and the issue has not been recently 113 Tex. 547, 261 S.W. 990, 991 (1924); City
revisited. of Dallas v. Peacock, 89 Tex. 58, 22 S.W.220,
220-21 (1895); Wagner v. State, 217 S.W.2d
(e) Blanchard v. Krueger, 916 S.W.2d 15 463, 464-65 (Tex. Civ. App.--San Antonio
(Tex. App.--Houston [1st Dist.] 1995, orig. 1948, writ ref’d n.r.e.).
proceeding). In Blanchard, a child custody
case, the mother sought to recuse the trial (g) Gulf Maritime Warehouse Co. v. Tower,
judge alleging ex parte communications with 858 S.W.2d 556 (Tex. App. --Beaumont 1993,
the father. 916 S.W.2d at 17. The trial court writ denied). In this case, the injured plaintiff
referred the recusal motion to the presiding sued Gulf Maritime, the corporation that had
judge, and, before the recusal hearing, filed a hired his employer to provide certain services.
general denial in the custody suit and asked for Id. at 557. The plaintiff also sued Quantum
attorney’s fees and court costs against the Chemical, the producer of the product plaintiff
mother. Id. The mother sought mandamus was unloading at the time he was injured. Id.
relief and the court of appeals held the trial During trial, Gulf Maritime became aware that
judge voluntarily joined the underlying suit as the judge’s wife was an employee of Quantum
a party and secured a disqualifying pecuniary Chemical in a managerial capacity. Id.
interest in the suit by asking for $500.00 in Resulting from her employment, the judge’s
attorney’s fees. Id. at 19. The court found wife received a salary and owned stock
those cases holding that a party may not cause through the pension, stock ownership, and/or
the recusal or disqualification of a judge by 401(k) plans. Id. at 558. The trial judge
naming her as a party to the suit were refused to disqualify himself, and on appeal,
inapplicable because in this case, the judge the court of appeals held the trial judge was
joined the suit of his own accord. Id. (citing disqualified because the evidence showed that
Cameron, 582 S.W.2d at 776). he had a “direct ownership interest” Id. at 562.
The evidence came from Quantum Chemical,
(f). Rio Grande Valley Gas Co. v. City of which admitted the judge’s interest. Id.
Pharr, 962 S.W.2d 631 (Tex. App. --Corpus
Christi 1997, pet. For review and application (h). Pahl v. Whitt, 304 S.W.2d 250 (Tex. Civ.
for mandamus filed February 13, 1998.) This App. --El Paso 1957, no writ). This case
case recognizes the long-standing rule that an recognizes the long-standing rule that a judge,
interest held by a judge which is common with who is a stockholder in a corporation, is
that of the public at large is not disqualifying. disqualified to sit in a case where the
Id. At 639 (citing Elliott v. Scott, 119 Tex. 94, corporation is a party. Id. at 252. See also
25 S.W.2d 150, 151 (1930)). See also Templeton v. Giddings, 12 S.E. 851, 852
Hidalgo county Water Improvement Dist. NO. (Tex. 1889); King & Davidson v. Sapp, 66
2 v. Blalock, 301 S.W.2d 593, 596 (Tex. Tex. 519, 520, 2 S.W. 573, 573-74 (1886).
1957); Nueces County Drainage & When, however, a judge owns stock in
Conservation Dist. No. 2 v. Bevly, 519 S.W.2d a corporation that is a party, but is not directly
938, 953 (Tex. Civ. App.--Corpus Christi interested in the outcome of the suit, the judge
Disqualification of Judges & Lawyers . . . N–xix

is not disqualified. See City of Pasadena v. membership in the State Bar of Texas, a party
State, 428 S.W.2d 388, 399, 404 (Tex. Civ. to the suit. Id. at 817. The court reasoned
App. --Houston [1st Dist.] 1968) (majority that to sustain disqualification in such a case
opinion on reh’g and Coleman, J., concurring would be to hold that no State tribunal could
on rehearing), rev’d on other grounds, 442 exist. Id.
S.W.2d 325 (Tex. 1969). In City of
Pasadena, the court reasoned that neither of (k) Rocha v. Ahmad, 662 S.W.2d 77 (Tex.
the corporations in which the appellate justices App.--San Antonio 1983, no writ). This case
held stock had an “interest” in the suit as that holds that a judge is not constitutionally
term is used for purposes of disqualification. disqualified for having received campaign
Id. at 404-404. The court found that while the contributions from a party or someone else
corporations were interested in the issue to be associated with the case. Id. at 78. See also
determined, neither company had an interest River Road Neighborhood Ass’n v. South
different from other members of the public and Texas Sports, Inc., 673 S.W.2d 952 (Tex.
would not be subject to a pecuniary loss or App.--San Antonio 1984, no writ); Degarmo
gain based on the outcome. Id. at 404. v. State, 922 S.W.2d 256, 267 (Tex. App.--
Houston [14th Dist.] 1996, pet. ref’d) (holding
(i) Hidalgo County Water Improvement Dist. that judge was not disqualified from presiding
No. 2 v. Blalock, 157 Tex. 206, 301 S.W.2d over capital murder case by virtue of
593 (1957). This case held that a judge’s acceptance of $500.00 campaign contribution
patronage of a municipal water system did not from victim’s parents).
disqualify hm from sitting in a case in which
the water district was a party. Id. at 596. The b. Issue: “Related by Affinity or
court reasoned that the judge’s interest, if any, Consanguinity”
was indirect, uncertain, and remote. Id.
The reasoning of Hidalgo County “No judge shall sit in any case . . .
Water has been applied to utility districts as where either of the parties may be
well. See City of Houston v. Houston Lighting connected with him, either by affinity
and Power Co., 530 S.W.2d 866, 868 (Tex. or consanguinity, within such a
Civ. App.--Houston [14th Dist.] 1975, writ degree as may be prescribed by law .
ref’d n.r.e.). But see Pahl v. Whitt, 304 . .” TEX CONST. art. V, § 11.
S.W.2d 250, 252 (Tex. Civ. App.--El Paso
1957, no writ) (holding that trial judge who
was member of 5,000 member electric (1) Computing Affinity and Consanguinity
cooperative was constitutionally disqualified).
We note, however, that the El Paso court (a) Texas Government Code section 21.005.
likely did not have the benefit of Hidalgo This section of the code provides that no judge
County Water because the supreme court’s shall sit in any case where any party is related
opinion came out only a week before Pahl was to him by affinity or consanguinity, as
issued. determined by Chapter 573 of the government
code. See TEX. GOV’T CODE ANN. §
(j) Alamo Title Co. V. San Antonio Bar Ass’n 21.005 (Vernon Supp. 1998) (emphasis
360 S.W.2d 814 (Tex. Civ. App.--Waco, added).
1962, writ ref’d n.r.e.). Relying on Hidalgo
County Water, the court held the trial judge (b) Texas Government Code section 573.022.
was not disqualified by virtue of his This section of the code defines a relationship
N–xx 1999 Marriage Dissolution Institute

by consanguinity. See TEX. GOV’T CODE of relationship is determined by adding: (1) the
ANN. § 573.022 (Vernon 1994). It states that number of generations between the relative
two individuals are related by consanguinity if: and the nearest common ancestor. For
(1) one is a descendant of the other; or (2) example, Karen and Pam are sisters, i.e., they
they share a common ancestor. See TEX. are blood relatives, but are not descended from
GOV’T CODE ANN. § 573.022(a) (Vernon one another. To determine the degree of
1994). consanguinity of this relationship, you would
This section specifically provides that add the number of generations each sister is
an adoptive child is considered a child of the separated from their nearest common ancestor.
adoptive parent for purposes of determining In this example, the nearest common ancestor
consanguinity. See TEX. GOV’T CODE for each sister is a parent. There is one
ANN. § 573.022(b) (Vernon 1994). generation between Karen and the parent.
Thus, one and one does equal two: Karen and
(c) Texas Government Code section 573.024. Pam are separated by two degrees of
This section defines a relationship by affinity. consanguinity.
See TEX. GOV’T CODE ANN. § 573.024 Subsection (c) of section 573.023
(Vernon 1994). It states that two individuals purports to be a list of individual’s relatives
are related by affinity if: (1) they are married separated by the third degree. See TEX.
to each other; or (2) the spouse of one of the GOV’T CODE ANN. § 573.023(a) (Vernon
individuals is related by consanguinity to the 1994) (“An individual’s relatives within the
other individual. See TEX. GOV’T CODE third degree by consanguinity are the
ANN. § 573.024(a) (Vernon 1994). individual’s . . .”). When you read the
The code further provides divorce or subsection, however, you will see that it is not
death of a spouse ends relationships of affinity a list of relatives separated by the third degree;
unless a child of that marriage is living, in rather it is a list of examples for first, second,
which case the marriage is considered to and third degrees of separation. (NOTE:
continue as long as the child lives. See TEX. Apparently, there is no one in the Texas
GOV’T CODE ANN. § 573.024(b) (Vernon Legislature to proofread statues before they
1994) (emphasis added). are enacted.)
In any event, subsection (c) probably
(d) Texas Government Code section 573.023 exists because the Legislature, recognizing that
This section provides the proper method for most lawyers went to law school so they
computing the degree of consanguinity. See would not have to use what little math skills
TEX. GOV’T CODE ANN. § 573.023(a) they may have, decided to give practitioners a
(Vernon 1994). The degree of relationship by list of common relationships and their degrees
consanguinity between an individual and the of separation.
individual’s descendant is determined by the 1. Parent or child = first degree;
number of generations that separate them. Id. 2. Brother, sister, grandparent, or
For example, a parent and child are related in grandchild = second degree; and
the first degree, a grandparent and grandchild 3. Great-grandparent, great-
in the second degree, a great-grandparent and grandchild, great-aunt, great-uncle,
great-grandchild in the third degree and so on. first cousin = third degree.
Id. See TEX. GOV’T CODE ANN. § 573.023 (c)
If an individual and the individual’s (Vernon 1994).
relative are related by consanguinity, but
neither is descended from the other, the degree (e) Texas Government Code section 573.025.
Disqualification of Judges & Lawyers . . . N–xxi

This section provides the proper method for Ass’n v. Lennox, 117 Tex. 94, 297 S.W. 743
computing the degree of affinity. See TEX. (1927) (noting that the fact that a stockholder
GOV’T CODE ANN. § 573.025(a) (Vernon may be related within the prohibited degree to
1994). A husband and wife are related to each judge would not disqualify judge from trying
other in the first degree by affinity. Id. For case to which corporation was party).
other relationships by affinity, the degree of
separation is the same as the degree of the (d) Hidalgo and Cameron Counties Water
underlying relationship by consanguinity. Id. Control and Improvement Dist. No. 9 v.
In other words, if two individuals are related in Starley, 373 S.W.2d 731 (Tex. 1964). Texas
the second degree of consanguinity, the spouse law notes an interesting exception to the rule
of one of those individuals is related to the of disqualification because of relationship to
other individual in the second degree. Id. party. Apparently, when there are no judges
Taking again the example of the sisters, Karen qualified to sit, a disqualified judge may do so.
and Pam. Karen and Pam are related in this In Starley, there was difficulty in finding a
second degree of consanguinity. Therefore, judge to preside over a huge case involving
Pam’s husband would also be related to Pam water rights to the American share of the
in the first degree, but by affinity rather than lower Rio Grande River. Id. at 732. The case
consanguinity. involved three counties, 3,000 defendants,
would effect more than 25, 000 individual
(2) Specific Examples landowners, and was expected to last several
years. Id.
(a) Fry v. Tucker, 146 Tex. 18,202 S.W.2d During the course of the case, there
218 (1947). This case held that the trial judge had been several disqualifications and
was disqualified to preside over a case where withdrawals, and ultimately Judge Starley was
his wife was a first cousin of one of the parties. appointed to preside over the case. Id. at 733.
Id. at 222. The judge was related to a party by Before the case began, Starley was single, but
affinity in the third degree. about a year later, Starley married, and it just
so happened that his new wife was a niece of
(b) Milan v. Williams, 119 Tex. 60, 24 S.W.2d one of the parties. Id. The marriage caused
391 (1930). Where the plaintiffs were the Judge Starley to be related to a party by
brothers-in-law of the presiding judge, the affinity in the second degree.
judge was disqualified. Id. at 391-92. The Clearly, Judge Starley was
judge was related to the plaintiffs by affinity in constitutionally disqualified, however, the
the second degree. supreme court ordered the judge to continue
presiding over the case. Id. at 734. Noting
(c) Texas Farm Bureau cotton Ass’n v. the unique circumstance of the case, it was
Williams, 117 Tex. 218, 300 S.W. 44 (1927). unlikely that any judge could be found to
In this case, the supreme court held that a complete the case. Id. Thus, out of necessity,
judge who was related by affinity in the second Judge Starley remained. Id. See also Hidalgo
degree to stockholders in the defendant County Water Control and Improvement Dist.
corporation was not disqualified. Id. at 48. No. 1 v. Boysen, 354 S.W.2d 420, 423 (Tex.
The court reasoned that the corporation, not Civ. App.--San Antonio 1962, writ ref’d)
the individual stockholders, was the defendant (recognizing (early in the same litigation) that
in the case, and therefore, the judge was not a disqualified judge might be compelled to
related to anyone with a direct interest in the preside out of necessity.).
case. Id. See also Texas Farm Bureau Cotton
N–xxii 1999 Marriage Dissolution Institute

(e). Kimmell v. Leoffler, 791 S.W.2d 648, McGee, 163 Tex. 412, 356 S.W.2d 666
650 (Tex. App. --San Antonio 1990, writ (1962). An attorney in a worker’s
denied) (stating there is no authority that compensation case is a party because the trial
membership in the same branch of government judge, pursuant to the statutory law, is
or the same professional organization required to award attorney’s fees to the
constitutes relationship by affinity or attorney out of the plaintiff’s recovery. Id. at
consanguinity). 667-68 (citing Postal Mut. Indem. Co. v. Ellis,
140 Tex. 570, 169 S.W.2d 482, 485 ( 1943)).
(3) Relationship to Attorney in the Case This exception to the general rule
would obviously not apply, however, to
(a) Postal Mut. Indem. Co. v. Ellis, 140 Tex. appellate judges who may review the case on
570, 169 S.W.2d 482 (1943). In this case, the appeal. See William w. Kilgarlin and Jennifer
supreme court was determining whether an Bruch, Disqualification and Recusal of
attorney was a “party” for purposes of judicial Judges, 17 ST. MARY’S L.J. 599, 632 (1986)
disqualification. Id. at 483-486. The court (citing Texas Employers’ Ins. Ass’n v.
defined the term “party” to include “all persons Leavins, No. C-2529 (Tex. App. --Beaumont,
directly interested in the subject matter and December 15, 1983, writ ref’d n.r.e.)
result of the suit, regardless of any appearance (unpublished)). The reason is clear: the
of their names in the record.” Id. a 484. The attorney’s fees have already been set by the
court recognized that as a general rule, an trial judge, and therefore, the appellate judge
attorney is not a “party.” Id. See also would have no reason to disqualify himself.
Martinez v. Martinez, 608 S.W.2d 719, 720-
21 (Tex. Civ. App.--San Antonio 1980, no (d) Canavati v. Shipman, 610 S.W.2d 200
writ); Runyon v. George, 349 S.W.2d 107, (Tex. Civ. App. --San Antonio 1980, no writ).
108 (Tex. Civ. App.--Eastland 1961, writ This case held that trial judge was not
dism’d) (citing Patton v. Collier, 90 Tex. 115, disqualified to preside over case after
37 S.W. 413 (1896)). appointing his son-in-law as guardian ad litem.
Id. at 203. The court stated that even though
(b) Sun Exploration and Production Co. v. the judge would be setting the fees for the
Jackson, 783 S.W.2d 202, (Tex. 1989) guardian ad litem, the public policy
(Gonzalez, J., concurring). An attorney is considerations present in workers’
generally not a “party” for purposes of compensation cases were not present in this
disqualification. Id. at 207. Even if the instance. Id. See also Niles v. Dean, 363
attorney is to receive a contingent fee, she is S.W.2d 317, 320-21 (Tex. Civ. App. --
not a “party” for purposes of disqualification Beaumont 1962, no writ) (holding that judge
decisions. See Dow Chemical Co. v. Benton, who appointed his son to represent defendants
163 Tex. 477, 357 S.W.2d 565, 568 (1962); cited by publication was not disqualified even
Postal Mut. Indem. Co. v. Ellis, 140 Tex. 570, though judge set attorney’s fees for his son for
169 S.W.2d 482, 484 (1943). See also services rendered). Neither the Canavati or
Winston v. Masterson, 87 Tex. 200, 27 S.W. Niles court, however, bothered to explain the
768, 768 (1894) (holding that judge was not distinction.
disqualified from presiding over case in which These cases are difficult to reconcile
his brother-in-law was attorney with with the worker’s compensation cases: why is
contingent interest in result). setting a fee in one instance disqualifying, and
setting a fee in another is not disqualifying.
(c) Indemnity Ins. Co. of North America v. The cases leave open the opportunity for
Disqualification of Judges & Lawyers . . . N–xxiii

practitioners to argue the presence or absence S.W.2d 916, 920 (Tex. Civ. App. --Tyler
of “public policy concerns” in disqualification 1981, no writ) (holding that judge’s previous
motion based on affinity or consanguinity in performance of legal services for parties in
cases where fees are set by the trial judge. routine real estate transaction did not
disqualify him). Thus, disqualification is
c. Issue: “Counsel in the Case” required only when the subject matter and
some of the parties are the same. Id; Matlock
“No judge shall sit in any case . . . v. Sanders, 273 S.W.2d 956, 958 (Tex. Civ.
.when he shall have been counsel in App.--Beaumont 1954, no writ).
the case. TEX. CONST. art. V, § In Conner, the court also recognized
11. that is was unnecessary that a formal
relationship of attorney and client exist for a
(1) Judge as Former Counsel judge to be disqualified. 457 S.W.2d at 594.
In Pinchback v. Pinchback, 341 S.W.2d 549
(a) Slavin v. Wheeler, 58 Tex. 23 (1882). The (Tex. Civ. App. --Fort Worth 1960, writ ref’d
supreme court, in considering the n.r.e.), the court considered whether a judge
disqualification of a judge who, as an attorney was disqualified from presiding over a
in the case, had advised “as to a matter in subsequent suit by a natural daughter to set
dispute,” held the judge was disqualified aside an adoption, when, as an attorney, he
because “he has then been of counsel in had been present at a conference regarding the
reference to the matter in dispute, and the adoption. Id. at 551. The daughter, who had
reasons for his disqualification to sit in the case been excluded from her father’s will, was
will never cease.” Id. at 26. See also seeking to set aside the adoption on grounds
Williams v. Kirven, 532 S.W.2d 159, 161 of fraud. Id.
(Tex. Civ. App. --Austin 1976, writ ref’d The only action taken by the judge in
n.r.e.) (citing Hobbs v. Campbell, 79 Tex. the prior adoption case was to make
360, 15 S.W.282 (1891)). In Slavin, the court arrangements to have the children taken to the
found that it made no difference that judge home of the adopting parents. Id. The court
could not recall his involvement in the matter. noted that a formal attorney-client relationship
58 Tex. at 26. was unnecessary and that a judge who has
The judge is disqualified even if no fee performed acts appropriate to any attorney
was charged as long as the judge, as an may be disqualified. Id. at 553. Based on the
attorney, was consulted professionally. See record, however, the court ultimately held the
Slavin, 58 Tex. At 26; Williams, 532 S.W.2d judge was not disqualified. Id.
at 161.
(c) Galveston & Houston Investment Co. v.
(b) Conner v. Conner, 457 S.W.2d 593 (Tex. Grymes, 94 Tex. 609, 64 S.W. 778 (1901).
Civ. App. --Amarillo 1970, writ dism’d). This This case hold that the fact that a judge may
case recognizes the general rule that in order have tried a case in a lower court or
for a trial judge to come within the participated in the decision therein does not
constitutional and statutory disqualifications constitutionally disqualify the judge from
from sitting as a judge in a case in which he sitting in the case on appeal. Id. at 778.
has been counsel for some of the parties in the (emphasis added). See also Monroe v.
suit before him in some proceeding in which Blackman, 946 S.W.2d 553, 539 (Tex. App.--
the issues were the same as in the case before Corpus Christi 1997, orig. proceeding)
him. Id. at 594. See also Lade v. Keller, 615 (Dorsey, J., dissenting) (recognizing Grymes
N–xxiv 1999 Marriage Dissolution Institute

rule). had previously practiced with a person who

served as an attorney in the matter. Id.

(2) Judge as Former Associate of Counsel or D. Recusal

Firm Who Handled Case
1. Introduction
(a) Texas Rule of Civil Procedure 18b(1).
Though the Texas Constitution speaks only to As mentioned previously, the concept
judges having served as counsel in the case, of having an unbiased judge preside over cases
rule 18b(1) provides that a judge is disqualified has existed for centuries. See Richard C.
if he served as counsel in the case, or if a Flamm, Judicial Disqualification in Florida,
lawyer with whom the judge previously 70 FLORIDA BAR JOURNAL 58 (1996).
practiced law served as a lawyer in the matter Thus, the Texas Constitution listed the three
during the time the judge and the lawyer situations in which a judge was disqualified
practiced together. See TEX. R. CIV. P. from hearing a case. See TEX. CONST. Art.
18b(1)(a) (emphasis added). 5, § 11. But, these were the only times a
judge had the duty to step aside:
(b) State ex rel. Routh v. Burks, 82 Tex. 584,
18 S.W. 662 (1891). The addition to rule While delicate discretion might indicate a
18b(1)(a) to include disqualification based on judge’s withdrawal from a case in a
practicing with an attorney who handled the contentious situation; there is no compulsion
case is not constitutionally infirm. Cases to step aside when the judge is not legally
interpreting article V, section 11 have long disqualified; indeed, unless legally disqualified,
interpreted the section to include it is the duty of the judge to preside. Grounds
disqualification because of an association with of disqualification in civil matters dictated by
another attorney or firm. Id. at 662; Vernon’s Ann. Tex. Const. Art. 5, Section 11,
Templeton v. Giddings, 12 S.W. 851 (Tex. and by Vernon’s Ann. Civ. St. art. 153, and the
1889). But see Walker Count y Lumber Co. v. grounds therein enumerated are inclusive and
Sweet, 63 S.W.2d 1061-62 (Tex. Civ. App. -- exclusive.
Beaumont 1933, writ dism’d w.o.j.) (holding
that judge was not disqualified where former ....
partner undertook representation of defendant
several years after partnership between Because the constitutional and statutory
attorney and judge was dissolved. disqualifying grounds are inclusive and
exclusive, mere prejudice and bias are
(c) McElwee v. McElwee, 911 S.W.2d 182 excluded as a disabling factor. (emphasis
(Tex. App. --Houston [1st Dist.] 1995, writ
denied). In this case, the appellate court held
3
the trial judge was not disqualified by virtue of Article 15 of the Texas Civil
having appointed the associate judge, who had Statutes Annotated stated the following: “No
previously practiced law with a person who judge or justice of the peace shall sit in any
served as an attorney in the matter. Id. at 187. case wherein he may be interested or where
The court found the ground argued for either of the parties may be connected with
disqualification did not fit within the him by affinity or consanguinity within the
constitutional confines of article V, section 11 third degree, or where he shall have been
because it was not alleged that the trial judge counsel in the case.” TEX. REV. CIV.
STAT. ANN. art. 15 (Vernon 1969).
Disqualification of Judges & Lawyers . . . N–xxv

added) useable form.

Maxey v. Citizens Nat’l Bank, 489 S.W.2d 2. Source of Law

697, 702 (Tex. Civ. App. --Amarillo 1972),
rev’d on other grounds, 507 S.W.2d 722 (Tex. Currently, rules 18a and 18b of the
1974). Texas Rules of Civil Procedure govern recusal
Apparently, the legislators and the of any court other than the court of appeals or
Supreme Court concluded that these three the Supreme Court. TEX. R. CIV. P. 18a,
situations adequately protected the parties 18b. Rule 18a discusses the filing, form, and
from an unbiased judge and adequately contents of the motion, the procedures the
protected the reputation of the judiciary. But, judges are to follow when confronted with a
gradually, during the 1980's the seeds were motion to recuse as well as waiver of the right
sown that would enlarge the reasons for which to recuse and sanctions for filing a frivolous
a judge much be recused. Thus, by 1992, the motion. Rule 18b(2) sets forth the grounds for
idea that a judge could be recused because he recusal and pertinent definitions. Rule 18b(2)
was impartial had come to full fruition, as now contains nine instances in which a judge
underscored by the following excerpt from an must not sit. However, as noted in the
opinion. introduction, the grounds for recusal only
recently have been so expansive. Recusal, as
Public policy demands that a judge opposed to disqualification, was first added to
who tries a case act with absolute the rules of civil procedure in 1987. TEX. R.
impartiality. Predergass v. Geale, 59 CIV. P. 19B, 50 TEX B.J. 852 (1987). The
Tex. 446, 447 (1883). It further rule contained one section listing the grounds
demands that a judge appear to be for disqualification (the old article 15 referred
impartial so that no doubts or to in the introduction to this portion of the
suspicions exist as to the fairness or paper) and one section covering recusal. The
the integrity of the court. Aetna Life recusal section was short.
Ins. Co. v. Lavoie, 475 U.S. 813, 106
S. Ct. 1580, 89 L.Ed.2d 823 (1986). (2) Recusal
Judicial decisions rendered under
circumstances that suggest bias, Judg es shall r ecuse
prejudice or favoritism undermine the themselves in proceedings in which
integrity of the courts, breed their impartiality might reasonably be
skepticism and mistrust, and thwart questioned, including but not limited
the principles on which the judicial to, instances in which they have a
system is based. Sun Exploration personal bias or prejudice concerning
and Prod. Co. v. Jackson, 783 the subject matter of a party, or
S.W.2d 202, 206 (Tex. 1989) personal knowledge of disputed
(Spears, J., concurring). evidentiary facts concerning the
proceeding.
CNA Ins. Co. v. Scheffey, 828 S.W.2d 785,
792 (Tex. App. --Texarkana 1992, writ TEX. R. CIV. P. 18b, 50 TEX. B. J. 852
denied). (1987). In the 1990, the rule was amended to
The purpose of this portion of the its current form. See TEX. R. CIV. P. 18b.
papers is to review the law or recusal in the Appellate recusal had an equally late
State of Texas and present it in a practical genesis. The current rule governing recusal of
N–xxvi 1999 Marriage Dissolution Institute

appellate judges is Rule 16. Its predecessors, is a party or an officer, director, or trustee of
rules 15 and 15a were adopted by the Supreme a party (Rule 18b(2)(f)(I)); (7) she, her
Court in 1986, to be effective on September 1, spouse, or any relative within the third degree
1986. or their spouse has an interest that could be
Rules 18a, 18b and appellate rule 16 substantially affected by the outcome of the
are the only rules governing recusal. Contrary case (Rule 18b(2)(f)(ii)); (8) she, her spouse or
to what some lawyers may think, the Code of a relative within the third degree or their
Judicial Conduct does not govern when a spouse likely to be a material witness in the
judge must step down for reasons of bias or proceeding (Rules 18b(2)(f)(iii)); (9) she, her
appearance of impartiality. The Code of spouse, or a relative within the first degree is
Judicial Conduct discusses in a very general a lawyer in the proceeding. We will discuss
way that a judge should avoid the appearance each of the recusal situations in more detail
of impropriety and perform his duties in an under the case law section of this paper.
unbiased manner. See Cannons 2 and 3, TEX.
CODE JUDICIAL CONDUCT. The Code 4. Important Definitions
also lists how a judge should act in particular
circumstances so that he will be, and appear, Rule 18b has three definitions that are
impartial. However, the Code’s provisions are crucial to proper application of the rule. They
not mandatory; The Code is only a guide, and are set forth below.
is only intended to state “basic standards
which should govern all judges.” See TEX. a. Proceedings
CODE JUDICIAL CONDUCT, Preamble.
The rule defines proceedings as
3. Grounds for Recusal including “pretrial, trial or other stages of
litigation” - in essence, at any time while the
Rule 18b states that a judge shall case is before that trial court. But lawyers
recuse herself when any of the nine following should beware, because there is a caveat to
circumstances are present in a case: (1_ her this rule. As discussed below, unless a party
impartiality might reasonably be questioned, timely files a motion to recuse upon learning of
(Rule 18b(2)(a)); (2) she has a personal bias or a reason for recusal, the party waives the right
prejudice concerning the subject matter or a to raise the complaint. See, e.g. Logic
party, or has personal knowledge of disputed Science, Inc. v. Smith, 798 S.W.2d 394 (Tex.
evidentiary facts concerning the proceeding App.--Houston [1st Dist.] 1997, orig.
(Rule 18b(2)(b)); (3) she or a lawyer with proceeding.)
whom she practiced has been a material
witness (Rule 18b(2)(c)); (4) she participated b. Degrees of Relationship
as counsel, advisor or material witness on the
case or expressed an opinion concerning the See section C.9.b.(I).
merits of it while acting as an attorney in
government service (Rule 18b(2)(d)); (5) she c. Financial Interest
knows that she has either individually or as a
fiduciary, a financial interest in the subject The rule defines a financial interest as
matter or in a party, or any other interest that “ownership of a legal or equitable interest
could be substantially affected by the outcome however small, or a relationship as director,
(Rule 18b(2)(e)); (6) she, her spouse, or any advisor or other active participant in the affairs
relative within the third degree or their spouse of a party,” TRCP 18b(4)(d). Certain
Disqualification of Judges & Lawyers . . . N–xxvii

exceptions to this rule exist. See Rio Grande Valley Gas Co. v. City of
Pharr, 962 S.W.2d at 637-638. Note: Rio
(1) Mutual Funds - Ownership of mutual or Grande Valley Gas Co. is the only case
common investment funds is not a financial discussing this issue after the enactment of rule
interest if the judge does not manage the fund 186. As a consequence, the other cases
or participate in its management. TRCP discuss the issue in terms of disqualification
18b(4)(d)(I). rater than recusal. See e.g. Hidalgo County
Water Improvement Dist. v. Blalock, 301
(2) Officer of certain non-profit groups - S.W.2d at 596.
holding an office in an educational, religious,
charitable, fraternal or civic organization does 5. Procedure for Recusal When No Motion is
not constitute a financial interest in securities Filed
the organization holds. TRCP 18b(4)(d)(ii).
a. Order
(3) Policyholder or Stockholder - A policy
holder in a mutual insurance company Rule 18b(2) requires a judge to recuse
stockholder of a publicly traded company, or himself if one of the nine enumerated situations
a depositor in a mutual savings company, is is present. A judge may himself decide to
holding a financial interest only if the outcome recuse himself on his own motion and, if he
of the proceeding could substantially affect the does, he must sign an order recusing himself.
value of the interest. TRCP 18b(4)(d)(iii). Dunn v. County of Dallas, 794 S.W.2d 560,
562 (Tex. App. --Dallas, 1990, no writ).
(4) Government Securities - Ownership of a
government securities if a “financial interest” b. Referral
only if the outcome could substantially affect
the value of the interest. TRCP 18b(4)(d)(iv). Once the judge signs the order of
recusal, he must refer the case to the presiding
(5) Taxpayers/Utility ratepayers - A judge judge of the administrative region to assign the
does not automatically hold a financial interest case to another judge in the district. Id.
if the interest is the same as the public at large
holds. TRCP 18b(4)(d). The examples the c. Action after Referral
rule give are taxpayers and utility ratepayers.
TRCP 18b(4)(d)(v). See Hidalgo County After the judge signs the order and has
Water Improvement Dist. v. Blalock, 301 referred the case to the presiding judge, he is
S.W.2d 593, 596 (Tex. 1957); Rio Grande not to enter any other orders in the case except
Valley Gas Co. v. City of Pharr, 962 S.W.2d for good cause stated in the order. Id.
631, 637-638 (Tex. App. --Corpus Christi
1997, applic. filed February 13, 1998, and pet. 6. Procedure for Recusal When Motion is
filed February 13, 1998); Nueces County Filed
Drainage Conservation Dist. v. Bevly, 519
S.W.2d 938, 951-952 (Tex. App.--Corpus a. When to File Motion
Christi 1975, writ ref’d n.r.e.). The only time
this type of interest would require the judge to The rule requires the motion to be filed
step down would be if the outcome of the at least 10 days before the date set for trial or
proceeding could substantially affect the other hearing. Rule 18a(a). See Waste Water,
outcome of the judge. TRCP 18b(4)(d)(v). Inc. v. Alpha Finishing & Development Corp.,
N–xxviii 1999 Marriage Dissolution Institute

874 S.W.2d 940, 944 (Tex. App.--Houston c. Filing the motion and responding to it
[14th Dist.] 1994, no writ). However, other
courts have said that the motion can be filed Rule 18a(b) requires that a party filing
after the trial and the final judgment as long as a motion to recuse serve a copy of the motion
the party files it more than 10 days before the on all other parties or counsel on the day that
hearing. See Bourgeois v. Collier, 959 the motion is filed. The movant also is to
S.W.2d 241, 246 (Tex. App. --Dallas 1997, no include a notice that the movant expects the
writ); Brousseau v. Ranzau, 911 S.W.2d 890, motion to be presented to the judge three days
893 (Tex. App.--Beaumont 1995, no writ). after the motion is filed, although the judge
The rule makes one exception to the 10 day can order otherwise. Id. The rule allows
requirement when a judge is assigned to a case responding or concurring parties to file
less than 10 days before trial or a hearing. In statements at any time before the motion is
this case, the party is to file the motion “at the heard. Id. Before a movant can complain on
earliest practicable time.” Rule 18a(e). The appeal about a motion not being acted upon,
rule lists only this one exception and some the movant should create a record showing
courts have applied the 10 day requirement that she brought the motion to the court’s
literally. In these districts, (the El Paso Court attention. See Wirtz v. Massachusetts Mutual
of Appeals, and possibly San Antonio) the Life Ins. Co., 898 S.W.2d 414, 423 (Tex. App.
motion must be filed 10 days before trial or 10 --Amarillo 1995, no writ).
days before a hearing, even if the movant did
not learn of the problem until the day the 7. Trial Judge Must Act
motion was filed. Note: See section B.8.e for
how the courts have interpreted this All courts agree that when a judge is
requirement. confronted with a timely, procedurally
sufficient motion, the trial judge must either
b. Contents of the Motion recuse herself or refer the case to the presiding
judge. Rule 18a(c), (d); see Brousseau v.
The motion must state “grounds why Ranzau, 911 S.W.2d at 892. These are the
the judge should not sit in the case.” Rule only two options the judge has when a
18a(a). The motion also must be verified and procedurally proper motion is filed.
must “state with particularity the grounds why Brousseau v. Ranzau, 911 S.W.2d at 892.
the judge should not sit. Id. If the motion is
not verified, the party forfeits the right to In such a case, when the judge refuses
complain about the judge’s refusal to recuse. to recuse herself, two things must happen: (1)
See McElwee v. McElwee, 911 S.W.2d 182, she must send all motions, responses, and
185-186 (Tex. App. --Houston [1st Dist.] concurring briefs, and the order of referral, to
1995, writ denied); Wirtz v. Massachusetts the administrative judge; and (2) she must take
Mut. Life Ins. Co., 898 S.W.2d 414, 422-423 no further action and make no further orders in
(Tex. App.--Amarillo 1995, no writ). The the case except for good cause stated in the
motion must be made on personal knowledge order in which the action is taken. Rule
and must set forth facts that would be 18a(d). Likewise, when a judge recuses
admissible in evidence. Rule 18a(a). In spite herself, two things must happen: (1) she must
of this requirement, however, the rule also request that the presiding judge of the
states that the motion may state facts upon administrative judicial district assign another
information and belief if the grounds for the judge to the case; and (2) she must take no
belief are specifically stated. Rule 18a(a) further action and make no further orders in
Disqualification of Judges & Lawyers . . . N–xxix

the case except for good cause, which must be courts addressing the issue in the last 10 years,
stated in the order in which action is taken.4 only the Dallas court of Appeals has
Rule 18a(c). consistently held that a judge can do only one
If a trial judge does not take one of of two things - refer or recuse - when
these two actions, the trial judge places herself confronted with motion to recuse that is
at risk of being ordered by an appellate court untimely or otherwise procedurally
to act in accordance with the rule. First, if the insufficient. See Bourgeois v. Collier, 959
trial does nothing, she is subject to mandamus. S.W.2d 241, 245-246 (Tex. App.--Dallas
See Greenberg, Benson, Fisk & Fielder v. 1997, no writ); Lamberti v. Tschoepe, 776
Howell, 685 S.W.2d 694, 695 (Tex. App.-- S.W.2d at 652.5
Dallas 1984, orig. proceeding). Second, if the
trial judge transfers the case to another judge 8. Duties of Presiding Judge or Judge
rather than referring the case to the presiding Assigned to hear recusal
judge for referral, she is again subject to
mandamus. Rule 18a; Winfield v. Daggertt, Rule 18a requires the presiding judge
846 S.W.2d 920, 922 (Tex. App.--Houston to immediately set a hearing before himself “or
[1st Dist.] 1993, orig. proceeding). In addition, some other judge designated by him.” Id. The
one court has held that a transfer made by the judge also is required to give notice of the
trial judge - not the presiding judge - would be hearing to all parties or counsel and to make
void. Lamberti v. Tschoepe, 776 S.W.2d 651, such other orders including orders on interim
652 (Tex. App.--Dallas 1989, orig. or ancillary relief in the pending cause as
proceeding). justice may require. Id If the judge hearing the
Although all courts agree that a timely, recusal grants the motion, the presiding judge
procedurally sufficient motion imposes a duty shall assign another judge to hear the case.
on the court to either refer or recuse, some See TEX. R. CIV. PRO. 18a(f).6
disagreement exist requiring the duty to rule
on or to refer the motion when it is not timely,
5
or otherwise procedurally, sufficient. Of the The proposed rule would
resolve this conflict. It states
that a trial judge may ignore
4
We have found no cases an unverified motion. See
involving an order entered for Proposed rule 18(d)(1). The
good cause. However, one of rule also deletes the 10 day
the members of the Bar requirement, stating that a
committee rewriting the rule - motion to recuse may be filed
a district judge in the State - at any time.
indicated that this was
6
intended for emergency The new proposed rule has
situations many of which are more deadlines imposed on
found in family law cases - the judge hearing the recusal
family violence and depletion than the current rule, which
of assets, for example. It is imposes no deadlines other
the authors’ understanding than hearing the motion
that judges in Houston have immediately. Under the new
been told to refer emergency rule, the judge is to set the
motions to the presiding motion for a hearing within
judge for a ruling. 10 days of the referral. In
N–xxx 1999 Marriage Dissolution Institute

9. Review of Rulings by Appeal or Mandamus 581 (Tex. App.--Waco 1993, no writ).

a. Mandamus 10. Sanctions

As noted above, when a motion is If the judge hearing the motion to

procedurally sufficient in all respects, all courts recuse concludes that the motion is brought
agree that the trial judge must either recuse or solely for the purpose of delay and without
refer the case to the presiding judge. See sufficient cause, the judge can, “in the interest
Blanchard v. Krueger, 916 S.W.2d 15, 17-18 of justice,” impose any sanction authorized by
(Tex. App.--Houston [1st Dist.] 1995, orig. Rule 215(2)(b). See Enterprise-Laredo Assoc.
proceeding); Winfield v. Daggett, 846 S.W.2d v. Hacker’s Inc., 839 S.W.2d 822 (Tex. App.-
920 (Tex. App.--Houston [1st Dist.] 1993, -San Antonio), writ ref’d per curiam, 843
orig. proceeding). If the trial judge does not S.W.2d 476 (Tex. 1992).
refer or recuse is such a case, he is subject to
a mandamus. See Blanchard, 916 S.W.2d at 11. Right to recuse may be forfeited or
17018; Winfield, 846 S.W.2d at 921-922. waived, and conditions warranting recusal may
be divested
b. Appeal
a. Forfeiture or Waiver
If the motion to recuse is denied, that
ruling is reviewable on appeal from the final As noted above, the requirement that
judgment. Rule 18a(f). The ruling is not the motion to recuse be filed at least 10 days
reviewable by mandamus, and, unlike before a hearing or trial is considered
disqualification, orders entered after the mandatory. Consequently, the courts have
erroneous ruling are not void. In re Union uniformly held that the right to have a judge
Pacific Resources Co., 969 S.W.2d at 428; recused, and the right to complain about a
McElwee v. McElwee, 911 S.W.2d 182, 185 refusal to recuse, can be forfeited by an
(Tex. App.--Houston [1st Dist.] 1995, no writ untimely filing. In re Union Pacific Resources
denied); Thomas v. Walker, 860 S.W.2d 579, Co., 969 S.W.2d 427 (Tex. 1998); Buckholts
Independent School District v. Glaser, 632
S.W.2d 146, 148 (Tex. 1982); Jamilah v.
addition, the assigned Bass, 862 S.W.2d 201, 203 (Tex. App.--
judge must rule within Houston [14th Dist.] 1993, orig. proceeding);
20 days of the referral, Aguilar v. Anderson, 855 S.W.2d 799, 810
or the motion is (Tex. App.--El Paso 1993, writ denied);
deemed granted. Watkins v. Pearson, 795 S.W.2d 257, 259-60
Proposed Rule (Tex. App. --Houston [14th Dist.] 1990, writ
18(d)(4). denied). The parties also can affirmatively
waive any ground for recusal after it is fully
Although the procedure disclosed in the record. Rule 18b(5).
varies across the state, in
Harris County, recusal b. Divesting the condition warranting recusal
motions are heard by a
visiting judge every other In addition, under very specific
Thursday. Consequently, the circumstances, a judge can rid himself of a
motions are heard rather ground for recusal. See Rule 18b(6). Under
quickly in Harris County.
Disqualification of Judges & Lawyers . . . N–xxxi

this subsection, a judge (1) who, either b. Procedure for recusal

individually or as a fiduciary, has a financial
interest in the subject matter of the suit, or any Just as in the trial court, the movant
other interest that could be substantially must file a motion to recuse. TEX. R. APP. P.
affected by the outcome of the suit, and (2) 16. The motion must be filed promptly “after
after spending substantial time to the suit the party has reason to believe that the justice
discovers that he must recuse, can divest should not participate in deciding the case.”
himself of the interest and continue sitting. Id. Id. Before anything else is done in the case,
The judge also could continue sitting after he the challenged justice must do one of two
has spent substantial time on the suit, if his things: recuse herself or certify the matter to
spouse or a relative within the third degree or the entire court. Id. If the matter is certified,
their spouse divests and interest that could be a majority of the remainder of the court sitting
substantially affected by the outcome of the en banc will decide the motion. The
proceeding. See Rule 18b(6) (referring to rule challenged justice does not sit with the
18b(2)(f)(ii)). Note: The rule refers to remainder of the court when it decides
18b(2)(f)(iii) as the second situation in which whether to recuse the challenged justice. Id.;
a judge could rid himself of the recusing see Manges v. Guerra, 673 S.W.2d 180, 185
ground. I believe this is a typo and that the (Tex. 1984); Resendez v. Schwartz, 940
rule should refer to 18b(2)(f)(ii), because S.W.2d 714 (Tex. App.--El Paso 1996, no
18b(6) refers to interests that can be divested. writ)
Rule 18b(2)(f)(iii) does not involve an interest
that can be divested; instead, it discusses when 13. Source of Law
a spouse or relative is a material witness. Rule
18b(2)(f)(ii), on the other hand, does refer to A party’s right to remove an assigned
an interest that can be divested, and that is judge is grounded in chapter 74 of the Texas
why I believe the rule should refer to it. The Government Code. Chapter 74 provides for
proposed rule 18 does not contain a provision the assignment of judges, see TEX. GOV’T
similar to 18b(6). Presumably, once a judge CODE ANN. § 74.052 (Vernon 1988), and
meets any of the grounds for recusal, he will objection to assigned judges. See TEX.
not be able to divest himself of the interest and GOV’T CODE ANN. § 74.053 (Vernon
continue sitting. Pamph. 1998). This chapter also defines those
judges subject to assignment, see TEX.
12. Appellate Recusal GOV’T CODE ANN. § 74.054 (Vernon
Pamph. 1998), and describes their powers,
a. Grounds for recusal duties, and compensation. See TEX. GOV’T
CODE ANN. §§ 74.054, 74.059, 75.061
Current rule 16 of the rules of appellate (Vernon 1988 & Pamph. 1998).
procedure controls recusal at the appellate
level. See TEX. R. APP. P. 16. The grounds 14. Grounds for Objections Under Section
for recusal are the same as for a trial judge in 74.053
rule 18b, but, in addition, an appellate judge is
recused if the case was in another court while There is only one ground for removal
the judge was there, and the appeal presents a under chapter 74 of the government code:
material issue that the judge decided or assignment of a judge. See TEX. GOV’T
participated in deciding while in the other CODE ANN. § 74.053 (Vernon Pamph.
court. 1998).
N–xxxii 1999 Marriage Dissolution Institute

A party is entitled to unlimited of the Texas Rules of Civil Procedure. See

objections to former judges and justices under TEX. R. CIV. P. 21 (“FILING AND
section 74.053(d); however, parties are only SERVING PLEADINGS AND MOTIONS).
entitled to one objection to assigned judges
who are “regular” or “retired” judges. See (3) Action by Judge
TEX. GOV’T CODE ANN. § 74.053(b);
Flores v. Banner, 932 S.W.2d 500, 501 (Tex. Disqualification of an assigned judge is
1996); Texas Employment Comm’n v. Alvarez, mandatory if the objecting party has filed a
915 S.W.2d 161, 164 (Tex. App.--Corpus timely, written objection. See Mercer v.
Christi 1996, no writ); Garcia v. Employers Driver, 923 S.W.2d 565, 658-59 (Tex. App.--
Ins. Of Wausau, 856 S.W.2d 507, 509 (Tex. Houston [1st Dist.] orig. proceeding [leave
App.--Houston [1st Dist.] 1993, writ denied). denied]). Upon proper objection, the assigned
judge must remove himself and ask the
15. Procedures for Section 74.053 Objections presiding judge to assign another judge to
preside over the case. See TEX. GOV’T
a. The Objection CODE ANN. § 74.054(a) (Vernon Pamph.
1998).
(1) When to File
16. Important Definitions
The objection must be filed before the
first hearing or trial, including pretrial a. “Hearing”
hearings, over which the assigned judge is to
preside. See TEX. GOV’T CODE ANN. § A “hearing” for the purposes of
74.053(c) (Vernon Pamph. 1998). Think of a sections 74.053(b) and (d), occurs when a
section 74.053 objection like a special party files a motion requesting affirmative
appearance, file it first or forget it! But, to relief and the assigned judge considers the
complicate matters more, one court has held merits of the arguments and rules on the
that an objection must be filed before the case motion. See Perkins v. Groff, 936 S.W.2d
is called for trial and the parties announce 661, 666 (Tex. App.--Dallas 1996, writ
ready. Thompson v. State Bar of Texas, 728 denied). It is irrelevant whether oral argument
S.W.2d 854, 855-856 (Tex. App.--Dallas or other actual courtroom proceedings have
1987, no writ). The court reasoned that when occurred. Id.
the case is first called for trial on the merits
“all of the time period “before the first hearing b. “Retired Judge”
or trial has elapsed.” Id.
A “retired” judge is a judge receiving
(2) What to File an annuity under the Texas Judicial Retirement
System. See Mitchell Energy Corp. v.
The courts have held that for the Ashworth, 943 S.W.2d 436, 438 (Tex. 1997).
objection to be valid, it must be in writing. To receive such an annuity, a judge must meet
See Wolfe, 918 S.W.2d at 541; Kellogg v. requirements about either the length of service
Martin, 810 S.W.2d 302, 305 (Tex. App.-- or service plus age. Id. Typically, a judge
Texarkana 1991, no writ). An oral objection must be sixty-five years of age and have at
is insufficient. Id. least ten years of creditable service to become
As with any other motion, practitioners a retiree. Id.
should comply with the requirement of rule 21
Disqualification of Judges & Lawyers . . . N–xxxiii

c. “Former Judge” (Who is Not Retired) a. Mandamus

According to the supreme court, a When a proper objection under section

former judge, who is not a retired judge, is a 74.053 is filed, but the objectionable judge
judge who has not vested under the state refuses to remove herself from the case, the
judicial retirement system when she left office. objecting party is entitled to mandamus relief.
See Mitchell Energy, 943 S.W.2d at 438-39. See In re Union Pacific Resources Co., 969
Any later-acquired status will not remove the S.W.2d 427, 428 (Tex. 1998) (citing Mitchell
judge from the category of former judges, i.e, Energy Corp. v. Ashworth, 943 S.W.2d 436,
those who may be removed by objection of 440-41; Fry v. Tucker, 146 Tex. 18, 202
either party under section 74.053(d). Id. The S.W.2d 218, 221 (1947)). The objecting party
government code does not specifically define is entitled to mandamus relief without showing
the term “former judge,” but it does require there is no adequate remedy by appeal. See
that both former and retired judges must have Union Pacific, 969 S.W.2d 428; Mitchell
served as a regular judge for a minimum of Energy, 943 S.W.2d at 437; In re City of
forty-eight months. See TEX. GOV’T CODE Wharton, 966 S.W.2d 855, 857 (Tex. App.--
ANN. § 74.055(c)(1), (e) (Vernon Pamph. Houston [14th Dist.] 1998 orig. proceeding),
1998). overruled sub nom. on other grounds, 41 Tex.
Sup . Ct. J. 1354 (August 25, 1998).
17. Objections Under Section 74.053 Can be Mandamus is appropriate to challenge
Waived a trial court’s refusal to remove himself after
proper objection because any orders entered
An objection and subsequent appellate by the objectionable judge are void. See
review of an objection under section 74.053 Union Pacific, 969 S.W.2d at 428 (citing
can be waived if the objecting party does not Mitchell Energy Corp. v. Ashworth, 943
comply with necessary procedures. See Dunn S.W.2d 436, 440-41; Fry, 202 S.W.2d at 221).
v. Street, 938 S.W.2d 33, 34 (Tex. 1997); The supreme court has long recognized
Wolfe v. Wolfe, 918 S.W.2d 533, 541 (Tex. that mandamus is appropriate in the case of
App. --El Paso 1996, writ denied); In re void orders, and that it is unnecessary for the
Hidalgo, 938 S.W.2d 492, 498 (Tex. App. -- relator transfer the case under rule 330(e) of
Texarkana 1996, no writ); Texas Employment the Rules of Civil Procedure; (2) section
Comm’n v. Alvarez, 915 S.W.2d 161, 164 74.053 objections are not effective when used
(Tex. App. --Corpus Christi 1996, no writ). against a transfer made pursuant to rule
See also TEX. GOV’T CODE ANN. § 330(e); (3) the policy concerns that prompted
74.053(b) (Vernon Pamph. 1998). The enaction of section 74.053(d) are not present
objection can be waived because the removal in transfer situations; and (4) parties do not
p r o cedu r e o f sect io n 74. 053 is have a proprietary interest in have a case heard
nonconstitutional. See Alvarez, 915 S.E.2d at by a particular judge. See Houston Lighting &
164. Power Co., 41 Tex. Sup. Ct. J. at 1355-56.
Practitioners should be sure to get a Accordingly, the supreme court found the trial
ruling on their objection. If the objecting party judge properly refused to remove himself from
fails to obtain a ruling on the objection, the the case. Id. At 1356.
party waives the right to complain of the One interesting aspect of the opinion is
assignment on appeal. Id. that the supreme court opinion did not
acknowledge that an assignment had been
18. Review of Section 74.053 Objections made and was still pending at the time of the
N–xxxiv 1999 Marriage Dissolution Institute

order and amended order issued by the

administrative judge. See City of Wharton,
966 S.W.2d 858. It also did not specifically
respond to the court of appeals’ concern that II. DISQUALIFICATION
to allow a transfer to override an assignment
would circumvent the right to object to the A. Introduction
assignment of local, elected judges. Id.
The Texas Family Law Practice and
E. Conclusion Procedure, and it authors, the late John
Montgomery, Brian L. Webb, and Sally
Because each of the removal Emerson, do an excellent review of the
techniques requires asserting different grounds procedures for disqualification of attorneys.
and following different procedures, and the The Texas Family Law Practice and
relief available for each varies, practitioners Procedure also has form motions for the
must determine the type of relief sought, and practitioner to use. The following sections are
attack or defend accordingly. Unless based on the Texas Family Law Practice and
practitioners make the necessary distinctions, Procedure authors comments.
they risk losing the opportunity to challenge
the trial court’s ruling at the earliest possible
opportunity, or at all. B. Disqualifying Other Party’s Attorney
and Grounds for Disqualification
Although we have treated the subject
of disqualification and recusal in a straight- 9. Conflict of Interest
forward, objective manner, we recognize the
subject is an emotionally-charged one for both The Texas Supreme Court has adopted
lawyers and judges. Most judges probably do a standard requiring disqualification whenever
not relish being involuntarily recused, and an attorney undertakes to represent in
most practitioners probably cringe at the litigation a client whose interest is adverse to
thought of having to file a motion to recuse. that of a former client, as long as the matters
This is especially so when a judge is one they embraced in the pending suit are substantially
frequently practice before. But, even though related to the factual matters involved in the
emotions may run high when a lawyer believes previous suit. Texas Disciplinary Rules of
the judge presiding over his case is biased, a Professional Conduct Rule 1.09 (“Rule
lawyer must maintain his composure and 1.09"). This strict rule is based on a
dignity. Grabbing a judge and forcibly conclusive presumption that confidences and
removing him from the bench is not an secrets were imparted to the attorney during
acceptable method of removal. The only the previous representation. Phoenix
methods that work are the three we have listed Founders, Inc. v. Marshall, 887 S.W. 2d 831,
in the paper. 834 (Tex. 1994); NCNB Tex. Nat’s Bank v.
Coker, 765 S.W. 2d 398, 399 - 400 (Tex.
In closing, if you do find yourself 1989). The Phoenix case also defines
wanting to remove a judge, remember to ask confidential information as including any
these three questions: what type of judge do I information relating to a case, even
have?; what type of motion do I need to file?; unprivileged information. Id. at 835, and Texas
and when do I have to file the motion? The Disciplinary Rules of Professional Conduct
answers to each of these lies within this paper. Rule 1.05(a) (“Rule 1.05(a)”).
Disqualification of Judges & Lawyers . . . N–xxxv

Typical conflicts of interest that same or a substantially related matter.

disqualify counsel include:
Rule 1.09 states as follows:
a. One lawyer or firm representing two
clients with adverse interests. Clarke v. “(a) Without prior consent, a lawyer
Ruffino, 819 S.W. 2d 947, 951 (Tex. App. — who personally has formally
Houston [14th] 1991, dwoj). This situation represented a client in a matter shall
may result from a lawyer’s originally not thereafter represent another
undertaking to represent both parties to a person in a matter adverse to the
divorce. If the interests of the parties diverge former client:
during the proceedings, a conflict results. The
attorney will be prohibited from thereafter . . . (3) if it is the same or
representing one spouse against the other in substantially related matter.
any contested proceeding, including an action
to enforce or modify any agreement reached or (b). . . when lawyers are or have
decree entered. Texas Disciplinary Rules of become members of or associated
Professional Conduct Rule 1.06(d) (“Rule with a firm, none of them shall
1.06(d)”); knowingly represent a client if any
one of them practicing alone would
b. A lawyer moving from one firm to be prohibited from doing so by (a).”
another when the two firms represent
clients with adverse interests in ongoing To begin the analysis, one must
litigation. In this situation, a second determine if the matter is adverse to the former
conclusive presumption arises: that an attorney client. The Texas Supreme Court granted
who has obtained confidential information mandamus relief and disqualified an attorney
shares it with other members of the attorney’s from representing a class of plaintiff’s because
firm, because of the interplay among lawyers there was a slight risk that, in vigorously
who practice together. Petroleum Wholesale pursuing claims against the former client’s
v. Marshall, 751 S.W. 2d 295, 299 (Tex. App. employer, the attorney might be acting adverse
— Dallas 1988); and to the former client. National Med. Enter. v.
Godbey, 924 S.W. 2d 123, 131 (Tex. 1996).
c. A paralegal moving from one firm to
another. However, disqualification of the The next question to ask is whether
employer-lawyer will depend on whether the this is the same or a substantially related
paralegal actually worked on the case of one matter. According to the Texas Supreme
of the clients having adverse interests. In Re Court, “to satisfy the substantial relationship
American Home Products Corp., 985 S.W. 2d test as a basis for disqualification a movant
68 (Tex. 1998); Arzate v. Hayes, 915 S.W. 2d must prove that the facts of the previous
616 (Tex. App — El Paso, 1996 writ denied); representation are so related to the facts in the
and Grant v. The Thirteenth Court of Appeals, pending litigation that a genuine threat exists
(Tex. 1994, writ denied). that confidences revealed to former counsel
will be revealed to a present adversary.”
According to Rule 1.09, unless a Metropolitan Life Insurance Co. v. Syntek
former client consents, a lawyer may not Fin. Corp., 881 S.W. 2d 319, 320 (Tex. 1994)
engage in representation adverse to a former citing NCNB Texas Nat’l Bank v. Coker, 765
client where the representation involves the S.W. 2d 398, 400 (Tex. 1989). Syntek sought
N–xxxvi 1999 Marriage Dissolution Institute

to disqualify an opposing law firm, Hughes & The Supreme Court of Texas
Luce, on the ground that Hughes & Luce addressed this issue in December of 1998 in a
formerly represented Syntek’s controlling case styled In re Epic Holdings, Inc. In Epic
shareholder in a divorce and subsequently the Supreme Court held that disqualification of
drafted his prenuptial agreement. The new counsel was warranted due to their prior
litigation arose out of a hotel purchase. In affiliation with the law firm involved in
Syntek the information relevant to the hotel corporation’s formation. In a very complex
purchase dispute was available in the public and detailed fact scenario, the high court
domain and through discovery. Some of the applied Rule 1.09(a)(1) to its holding. Justice
information was available through an Hecht, writing for the majority, stated “[the
examiners report from a bankruptcy legal system’s image is ill-served by lawyers
proceeding. The trial court also conducted an criticizing the work of their former associates
in camera review of documents from the with whom they shared in the fees which paid
former representation. Under these facts, the for the work....Also it is most unfair for a
Court found that the trial court did not abuse client to be forced to defend the work of the
its discretion in failing to disqualify Hughes & former associates of his opponent’s counsel.”
Luce. Metropolitan Life Ins. Co. v. Syntek
Fin. Corp., 881 S.W. 2d at 321. 10. “Chinese Wall” Defense

Further, in Centerline Industries, Inc. When a lawyer or paralegal moves to

v. Knize, 894 S.W. 2d 874, 875 (Tex. App. — another firm, the firm is not disqualified if it
Waco 1995, writ denied) plaintiff argued that, takes appropriate steps to separate the person
based on Syntek, an attorney could avoid being from the sensitive case files and cautions the
disqualified by showing that he had no person against divulging confidential
confidential information or that such information to members of the firm. That is,
information was already publicly disclosed. putting a so-called “Chinese wall” around the
The court rejected this argument and held that newcomer to guard against any disclosure of
defendant’s admission that opposing counsel confidences. On the other hand,
formerly represented defendant in a disqualification will be required in some
substantially related matter disqualified the circumstances, notwithstanding these
attorney and his law firm as a matter of law. precautions, such as when information relating
Id. to the representation of an adverse client has in
fact been disclosed, when the “Chinese wall”
The next question is if one attorney is would be ineffective, or when the person
disqualified under Rule 1.09, is the attorney’s necessarily would be required to work on the
entire firm disqualified? When an attorney other side of a matter that is the same or
would be disqualified by Rule 1.09(a), all other substantially related to the matter on which the
attorneys practicing in the disqualified person previously worked. Phoenix Founders,
attorney’s law firm are also disqualified. Rule Inc. v. Marshall, 887 S.W. 2d 831, 836 (Tex.
1.09(b) and comment 5. Thus, upon a 1994).
showing that the client’s former attorney is
disqualified from representing an adverse party 11. Planned as Witness
in a substantially related matter, every attorney An attorney may be disqualified if the
at the client’s former attorney’s firm is also attorney will testify on the client’s behalf, and
disqualified in the matter. no exception in Rule 3.08(a) may be applied.
Mauze v. Curry, 861 S.W. 2d 869, 869 - 870
Disqualification of Judges & Lawyers . . . N–xxxvii

(Tex. 1993); Warrilow v. Norrell, 791 S.W. 2d would work substantial hardship on the client.
515, 519 - 521 (Tex. App. — Corpus Christi
1989, den.). 12. Related to Judge

The possibility that the lawyer will be An attorney may not appear before a
called as a witness must be more than a judge in a civil case if the attorney is related to
“remote” possibility. However see Spears v. the judge by affinity (marriage) or
Fourth Court of Appeals, 797 S.W. 2d 654, consanguinity (blood) within the first degree,
658 (Tex. 1990) where lawyer would be called as determined for purposes of the antinepotism
as rebuttal witness only if another witness’s statutes. Government Code section 82.066.
trial testimony conflicted with deposition.
Here is a look at the types of
Exceptions to this rule are provided by relationships that disqualify an attorney.
the Texas Disciplinary Rules of Professional
Conduct. Disqualification is not warranted if a. Relatives within the first degree of
one of the following conditions exists, consanguinity (blood relatives), for purposes
pursuant to Rule 3.08(a): of the antinepotism statutes, are a person’s
parents and children. Government Code
a. The testimony will relate to an section 573.023 (c)(1).
uncontested issue. White v. Culver, 695 S.W.
2d 763, 765 - 766 (Tex. App. — El Paso b. Relatives within the first degree of
1985) where disqualification not warranted affinity (relatives by marriage) are a person’s
when fact to be proved by lawyer’s testimony spouse and the spouse’s parents and children.
has been stipulated;

b. The testimony will relate solely to a c. Moreover, if two people are related by
matter of formality, and there is no reason to consanguinity, the spouse of one of them is
believe that substantial evidence will be offered related to the other person in the same degree
in opposition to the testimony. Audish v. of affinity. Government Code section 573.025
Clajon Gas Co., 731 S.W. 2d 665, 673 (Tex. (a). Thus, a child’s spouse is related to the
App. — Houston [14th] 1987, ref. n.r.e.) child’s parent in the first decree of affinity.
where testimony as to service of notice and
storage of items with law firm related solely to Note, however, that the ending of a
matter of formality (decided under former marriage by divorce or the death of a spouse
rule); ends relationships by affinity created by that
marriage unless a child of that marriage is
c. The testimony will relate to the nature living, in which case the marriage is considered
and value of legal services rendered in the to continue as long as a child of that marriage
case; lives. Government Code section 573.024(b).

d. The lawyer is a party appearing pro se; 13. Anticontact Rule

and
An interesting case to review is In re
e. The lawyer promptly notified opposing News America Publishing, Inc., 974 S.W. 2d
counsel that the lawyer expects to testify in the 97 (Tex. App. — San Antonio 1998, writ.
matter, and disqualification of the lawyer overruled). In this case, the court of appeals
N–xxxviii 1999 Marriage Dissolution Institute

focused on the Texas Disciplinary Rules of about the meeting or the letter, until seven
Professional Conduct Rule 4.02(a), which months later in response to a subpoena duces
states as follows: tecum. The nonsuited defendant’s attorney
never withdrew from the case.
“In representing a client, a lawyer
shall not communicate or cause or The court relied on a 5th Circuit
encourage another to communicate opinion to support its holding. In Shelton v.
abo ut t he subject of t he Hess, 599 F. Supp. 905, 909 (S.D. Tex. 1984),
representation with a person, the 5th Circuit established a two prong test for
organization or entity of government movant to establish that some specific
the lawyer knows to be represented identifiable impropriety has occurred and that
by another lawyer regarding that the likelihood of public suspicion or obloquy
subject, unless the lawyer has the outweighs the social interests which will be
consent of the other lawyer or is served by a lawyer’s continued participation in
authorized to do so.” a particular case, in deciding that Akin Gump
should have been disqualified by the trial
In the News America case the trial court.
court denied the defendants’ motion
requesting that plaintiffs counsel be 14. Status as Judicial Officer
disqualified for violation of Rule 4.02(a), the
“anticontact rule.” The court of appeals Generally, judicial officers cannot
ordered the trial court to rescind its previous represent litigants in any court of record in
order and grant the motion, which included Texas. The list of officers so disqualified
sanctions. Everyone at trial was represented include:
by counsel. Just prior to a nonsuit of one of
the defendants, the defendants attorneys a. Judge or clerk of the Texas Supreme
learned that the plaintiffs had a meeting with Court;
the defendant who was to be nonsuited. The
nonsuited defendant met with one of the b. Judge or clerk of the Court of Criminal
plaintiff’s attorneys at the offices of Akin, Appeals;
Gump, Strauss, Hauer & Feld, L.L.P. The
meeting was “in response to” the nonsuited c. Judge or clerk of a Court of Appeals;
defendant’s letter sent to Akin Gump stating
he wanted to meet with them without his d. Judge or clerk of a district court; and
attorney present to discuss the lawsuit. In the
letter, the nonsuited defendant told Akin e. County sheriff. Government Code
Gump that he “decided to terminate” his section 82.064.
attorney’s representation, and that he was “no
longer represented by an attorney.” Shortly The disqualification rule is more
after the meeting plaintiffs nonsuited this narrow when the attorney is also a county
defendant. judge or county clerk. A county judge may
take a case in a district court, including a
The nonsuited defendant had not divorce case; but a county clerk cannot unless
discussed with his own attorney that he wished the court where the clerk serves has neither
to terminate their relationship. No notice was original nor appellate jurisdict io n.
given to the nonsuited defendant’s attorney Government Code section 82.064(c). This
Disqualification of Judges & Lawyers . . . N–xxxix

condition, thus, disqualifies county court-at- opposing counsel exist, a party should file a
law clerks from appearing in district courts. motion seeking an order that the attorney and
Also, county judges and clerks who are firm is disqualified from appearing for the
lawyers are allowed to represent clients in other party. NCNB Tex. Nat’l Bank v. Coker,
county courts, but only in cases over which 765 S.W. 2d 398, 399 (Tex. 1989).
their court has neither original nor appellate
jurisdiction. Government Code section The usual motion practice governs,
82.064(b). meaning that the motion should be filed and
set for a hearing. A copy of the motion, with
15. No Specific Disciplinary Rule Applies a notice of the hearing date, is then to be
served on opposing counsel and attorneys for
The Supreme Court of Texas decided all other parties in the case by delivery,
In re Dana Meador, 968 S.W. 2d 346, in April certified mail or fax. T.R.C.P. 21, 21a.
of 1998. In Meador the defendant’s filed a
Motion to Disqualify plaintiff’s attorney. 9. Remedy upon Disqualification
Defendant’s contend that the lawyer
improperly used privileged documents which The court’s order granting or denying
the lawyer’s client (in another lawsuit) secretly a motion for disqualification is interlocutory
removed from defendant’s office. The trial and not then appealable. Hoggard v.
court denied the motion. The Court of Snodgrass, 770 S.W. 2d 577, 581 (Tex. App.
Appeals granted mandamus relief. The — Dallas, 1989). The only remedies are:
Supreme Court granted mandamus relief
against the Court of Appeals, stating that the a. Petitioning a court of appeals for writ
trial court was correct in its ruling. of mandamus, with the burden to establish a
clear abuse of discretion resulting in harm to
The trial court denied the Motion to the moving party. J. K. & Susie L. Wadley
Disqualify, but ordered that all of the Research Inst. & Blood Bank v. Morris, 776
documents must be returned, and that the S.W. 2d 271, 275 (Tex. App. — Dallas,
attorney could not use them in the Meador 1989).
litigation. Plaintiff argued that the trial court
could not disqualify plaintiff’s attorney b. Assigning the ruling on the motion as
because he did not violate a specific error when appealing from the final judgment.
disciplinary rule. Plaintiff contends that ABA National W. Life Ins. Co. v. Jones, 670 S.W.
Formal Opinion 94-382, on which the court of 2d 752, 755 (Tex. App. — Austin, 1984).
appeals relied is merely advisory, and does not
impose a binding disciplinary standard on 10. Motion to Show Authority
Texas attorneys.
Although appropriate in only the rare
The Supremes agreed with this instance, there is a procedure to “disqualify”
contention. The Supremes also agreed with an attorney who lacks the authority to
plaintiff that no specific Texas disciplinary rule represent the party he is attempting to
applies to the circumstances of this case. represent in court. By filing a sworn written
motion, stating the party’s belief that the suit
8. Procedure is being prosecuted or defended on the other
parry’s behalf without authority, the party my
When grounds for disqualifications of cause the other party’s attorney to be cited to
N–xl 1999 Marriage Dissolution Institute

appear before the court and show his authority a. See National Medical Enterprises, Inc.
to act. T.R.C.P. 12. However, absence of a v. Godbey, 924 S.W. 2d 123 (Tex. 1996) relief
verification on a motion to show authority is a by appeal of denial of motion to disqualify
waivable defect. Sloan v. Rivers, 693 S.W. 2d opposing counsel would have been inadequate,
782, 783 (Tex. App. — Ft. Worth 1985, no as required to support grant of mandamus;
writ).
b. NCNB Texas National Bank v. Coker,
The movant must serve notice on the 765 S.W. 2d 398 (Tex. 1989) mandamus
motion on the challenged attorney at least 10 would issue directing trial court to vacate
days before the hearing on the motion. order of disqualification, where trial court
T.R.C.P. 12. The motion may be heard and failed to apply proper standard of law in ruling
determined at any time before the parties have on defendant’s motion to disqualify plaintiff’s
announced ready for trial, but the trial is not to counsel;
be unnecessarily continued or delayed for the
hearing. T.R.C.P. 12. c. Troutman v. Ramsay, 960 S.W. 2d 176
(Tex. App. — Austin 1997) appeal is not
At the hearing on the motion, the adequate remedy for improper failure to
burden of proof is on the challenged attorney disqualify attorney;
to show sufficient authority to prosecute or
defend the suit. If the attorney fails to show d. Centerline Industries, Inc. v. Knize,
authority, the court will not permit the 894 S.W. 2d 874 (Tex. App. — Waco 1995)
attorney to appear in the cause, and the court issuance of writ of mandamus is limited to
must strike the pleadings if no person who is those instances in which no adequate remedy
authorized to prosecute or defend appears. by appeal exists, and disqualification of
T.R.C.P. 12; see Vela v. Vela, 763 S.W. 2d counsel is proper subject of mandamus
601, 602 - 603 (Tex. App. — San Antonio proceeding; and
1988, den.) where attorney was hired by next
friend, but party was competent to decline e. Occidental Chemical Corporation v.
representation; Sloan v. Rivers, 693 S.W. 2d Brown, 877 S.W. 2d (Tex. App, — Corpus
782, 783 (Tex. App. — Ft. Worth 1985, no Christi 1994) mandamus is appropriate method
writ) where attorney admitted in court that he to review improper disqualification of counsel.
did not have authority to prosecute action for
injunction on behalf of named parties. III. Conclusion

The relief available for each varies,

practitioners must determine the type of relief
sought, and attack or defend accordingly.
11. Mandamus is Appropriate Procedure Unless practitioners make the necessary
distinctions, they risk losing the opportunity to
There are a number of cases that state challenge the trial court’s ruling at the earliest
the correct procedure for the practitioner is to possible opportunity, or at all.
file a Writ of Mandamus from the trial court,
instead of appealing the ruling of the trial court We recognize the subject is an
on a Motion to Disqualify. The ruling from emotionally-charged one for both lawyers and
the trial court is interlocutory, and not, then, judges. Most attorneys probably do not relish
appealable. being involuntarily removed, let alone having
Disqualification of Judges & Lawyers . . . N–xli

a motion to disqualified filed against them. the three we have listed in the paper.
But, again, even though emotions may run
high a lawyer must maintain his composure Good Luck!!
and dignity. The only methods that work are