Disqualifications, Rec ecusa sals, s, a and nd Visiting ng J Judg dges es Preserving the Integrity of the Bench
Disqualifications Recusals Assigning a Visiting Judge Agenda
DISQUALIFY To divest or deprive of qualifications to render ineligible or unfit; to take away from someone the ability to do or play a part in something because that person is unsuitable or has done something wrong: Definitions RECUSAL Recusal is the act of a Judge or Prosecutor being removed or excusing one’s self from a legal case due to conflict of interest or other good reason.
Sec. 16. COUNTY COURTS: JURISDICTION; COUNTY JUDGE POWERS; DISQUALIFICATION OF COUNTY JUDGE. The County Court has jurisdiction as provided by law. The County Judge is the presiding officer of the County Court and has judicial functions as provided by law. County court judges shall have the power to issue writs necessary to enforce their jurisdiction. Texas Constitution, County Courts in existence on the effective date of this amendment are continued unless otherwise provided by law. Article 5, Section 16 When the judge of the County Court is disqualified in any case pending in the County Court the parties interested may, by consent, appoint a proper person to try said case, or upon their failing to do so a competent person may be appointed to try the same in the county where it is pending in such manner as may be prescribed by law.
No judge or justice of the peace shall sit in any case where Co Code o of Cr Crim. he may be the party injured, or where he has been of counsel for the State of the accused, or where the accused Proced ocedure, Ar Art. or the party injured may be connected with him by consanguinity or affinity within the third degree, as 30.0 .01 determined under Chapter 573, Government Code.
Rule 18a: Recusal and Texas R Rule les of Civil vil Disqualification of Pro rocedure re Judges These rules apply to criminal cases. See, Party may file motion for recusal, if for example, DeBlanc judge doesn’t recuse himself/herself, v. State , 799 S.W.2d then the presiding judge assigns someone to hear the motion. 701 (Tex. Crim. App. 1990); Arnold v. State , 853 S.W.543 (Tex. Crim. App. 1993) Until decided, take no action except for “good cause” stated in writing or on the record.
Rule 18b: Grounds for Recusal and Disqualifications of Judges (a) Grounds for (b) Grounds for (c) Financial Disqualification Recusal Interests The courts also apply Rule 18b in criminal cases. See, for example, Rhodes v. State , 357 S.W.3d 796 (Tex. App.—Hou.[14 th ] 2011, no pet.)
(a) Grounds for Disqualification . – A judge must disqualify in any proceeding in which: (1)The judge has served as a lawyer in the matter in controversy, or a lawyer with whom the judge Rule 1 Ru 18b(a) a): : previously practiced law served during such association as a lawyer concerning the matter; Grounds unds f for (2)The judge knows that, individually or as a Disqualification fiduciary, the judge has an interest in the subject matter in controversy; or (3)Either of the parties may be related to the judge by affinity or consanguinity within the third degree.
Texas Government Code Chapter 573, Subchapter B: Relationships by Consanguinity or by Affinity Individuals are related by consanguinity if one is a descendant of the other, or if they share a common ancestor. ... Approval must be obtained if the relationship is within the third degree by consanguinity (blood) or within the second degree by affinity (marriage).
Third Degree by Consanguinity
Rule 1 18b(b (b): ): A judge must recuse in any proceeding in which: 1) the judge’s impartiality might reasonably be Gr Grou ounds f for or questioned; Re Recusal
A judge must recuse in any proceeding in which: 2) the judge has a personal bias or prejudice concerning the subject matter or a party; Rule 1 18b(b): G Grounds for Recusal
Rule 1 18b(b (b): ): A judge must recuse in any proceeding in which: Gr Grou ounds f for or 3) the judge has personal knowledge of disputed evidentiary facts concerning the proceeding; Re Recusal
A judge must recuse in any proceeding in which: 4) the judge or a lawyer with whom the judge previously practiced law has been a material witness concerning the proceeding; Rule 18b(b): Grounds f for R Recu cusal
A judge must recuse in any proceeding in which: Rule 1 18b(b (b): ): 5) the judge participated as counsel, adviser, or Gr Grou ounds f for or material witness in the matter in controversy, or expressed an opinion concerning the Recusal Re merits of it, while acting as an attorney in government service;
A judge must recuse in any proceeding in which: 6) the judge knows that the judge, individually or Rule 1 18b(b (b): ): as a fiduciary, or the judge’s spouse or minor Gr Grou ounds f for or child residing in the judge’s household, has a financial interest in the subject matter in Re Recusal controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
A judge must recuse in any proceeding in which: Rule 1 18b(b (b): ): 7) the judge or the judge’s spouse, or a Gr Grou ounds f for or person within the third degree of relationship to either of them, or the Re Recusal spouse of such a person: (A) Is a party to the proceeding or an officer, director, or trustee of a party; (B) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding; or (C) Is to the judge’s knowledge likely to be a material witness in the proceeding.
Rule 18b( b(b): G Grounds ds for R r Recusal A judge must recuse in any proceeding in which: 8) the judge or the judge’s spouse, or a person within the first degree of relationship to either of them, or the spouse of such person, is acting as a lawyer in the proceeding.
Rule 1 18b(c): F Financial Interests A judge should inform himself or herself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself or herself about the personal financial interests of his or her spouse and minor children residing in his household.
Rule 18b(d): Terminology and Standards (d)(4) “financial interest” means ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party, except that:
(a) Ownership in a mutual or common investment fund that hold securities is not a “financial interest” in such securities unless the judge participates in the management of the fund; (b) An office in an educational, religious, charitable, fraternal, or civic organization is not a “financial interest” in securities held by the organization; Rule 18b(d) (c) The proprietary interest of a policyholder in a mutual insurance company, of a depositor in a mutual savings association, or a similar proprietary interest, is a “financial interest” in the organization only if the outcome of the proceeding Exceptions could substantially affect the value of the interest; (d) Ownership of government securities is a “financial interest” in the issuer only if the outcome of the proceeding could substantially affect the value of the securities; (e) An interest as a taxpayer or utility ratepayer, or any similar interest, in not a “financial interest” unless the outcome of the proceeding could substantially affect the liability of the judge or a person related to him within the third degree more than other judges.
A judge is presumed to be qualified. Rule 18b(e) Waiving a Ground for Recusal . – The parties to a proceeding may waive any ground for recusal after it is fully disclosed on the record. Recusal can be waived, disqualification cannot be waived. McElwee w. McElwee, 911 S.W.2d 182 (Tex. App.-Hou.[1 st ] 1995) If a judge is disqualified then any action the judge takes is void and subject to collateral attack.
Rule 18b(f) Discovery and Divestiture . If a judge does not discover that the judge is recused under subparagraphs (b)(6) or (b)(7)(B) until after the judge has devoted substantial time to the matter, the judge is not required to recuse himself or herself if the judge or the person related to the judge divests himself or herself of the interest that would otherwise require recusal.
Texas Go Gov’t t Code S Secti tion 26. 26.01 011: Assignment t of Visiti ting J Judge If a county judge is absent, incapacitated, or disqualified in a civil or criminal case, the presiding judge shall appoint a visiting judge to hear the case in accordance with Subchapter C, Chapter 74*. *Texas Gov’t Code, Chapter 74, Subchapter C, governs Administrative Judicial Regions, of which there are 11 in Texas, each led by a presiding judge who is a current, former, or retired district judge.
Texas Gov’t Code Sec. 26.012. ASSIGNMENT OF VISITING JUDGE FOR Probate, PROBATE, GUARDIANSHIP, AND MENTAL HEALTH MATTERS. Guardianship a and If the county judge is absent, Mental H Health incapacitated, or disqualified to act in a probate, guardianship, or mental health Ma Matte ters matter, a visiting judge shall be assigned in accordance with Texas Gov’t Code Section 25.0022(h): Statutory County Courts, Administration
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