Disqualifications, Recusals, and Visiting Judges 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 Article 5, amendment are continued unless otherwise provided by law. 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 he may be the party injured, or where he has been of Code of Crim. counsel for the State of the accused, or where the accused or the party injured may be connected with him by Procedure, Art. consanguinity or affinity within the third degree, as 30.01 determined under Chapter 573, Government Code. Rule 18a: Recusal and Texas Rules of Civil Disqualification of Procedure 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 701 (Tex. Crim. App. someone to hear the motion. 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.[14th] 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 previously practiced law served during such Rule 18b(a): association as a lawyer concerning the matter; Grounds 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 18b(b): A judge must recuse in any proceeding in which: 1) the judge’s impartiality might reasonably be Grounds for questioned; 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 18b(b): Grounds for Recusal Rule 18b(b): A judge must recuse in any proceeding in which: Grounds for 3) the judge has personal knowledge of disputed Recusal evidentiary facts concerning the proceeding; 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 for Recusal A judge must recuse in any proceeding in which: Rule 18b(b): 5) the judge participated as counsel, adviser, or material witness in the matter in controversy, Grounds for or expressed an opinion concerning the Recusal 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 18b(b): as a fiduciary, or the judge’s spouse or minor child residing in the judge’s household, has a Grounds for financial interest in the subject matter in Recusal controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding; Rule 18b(b): A judge must recuse in any proceeding in which: 7) the judge or the judge’s spouse, or a Grounds for person within the third degree of relationship to either of them, or the 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): Grounds for 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 18b(c): 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;

(c) The proprietary interest of a policyholder in a mutual insurance company, of a Rule 18b(d) 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.[1st] 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 Gov’t Code Section 26.011: Assignment of Visiting 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 and If the county judge is absent, Mental Health incapacitated, or disqualified to act in a probate, guardianship, or mental health Matters matter, a visiting judge shall be assigned in accordance with Texas Gov’t Code Section 25.0022(h): Statutory County Courts, Administration (h) A judge or a former or retired judge of a statutory probate court may be assigned to hold court in a statutory probate court, county court, or any statutory court exercising probate jurisdiction when: (5) The presiding judge of an administrative judicial district requests the assignment of a statutory probate judge to hear a probate matter in a county court or a Texas Gov’t Code Sec. 25.0022(h) statutory county court; [in relevant part] Texas Gov’t Code Sec. 26.015. VISITING JUDGE TO TAKE OATH

In addition to any oath previously taken, a person appointed as a visiting judge of a constitutional county court, including a person who is a retired, former, or active judge, shall take the oath of office required by the constitution. (emphasis added) Appointment of Visiting Judges

Counties WITHOUT a Statutory County Court Texas Gov’t Code Section 26 Subchapter C • § 26.021: Application of Subchapter • § 26.022: Appointment for Particular Matters • § 26.023: Appointment for Absence of Judge • § 26.024: Appointment to Share Bench • § 26.026: Compensation of Visiting Judge • § 26.027: No Administrative Powers • § 26.028: Attorney Recommendations Texas Gov’t Code Chapter 26: Constitutional County Courts

Sec. 26.021. APPLICATION OF SUBCHAPTER This subchapter applied only to a county in which: (1) There is no statutory county court at law or statutory probate court; and (2) All duties of the county court devolve on the county judge The county judge for good cause may at any time appoint a visiting judge with respect to any pending civil or criminal matter. Texas Gov’t The visiting judge may be appointed on motion of the court or on motion of any counsel of record in the matter. Each counsel Code Sec. of record is entitled to notice and hearing on the matter.

26.022 To be appointed a visiting judge, a person must be agreed on by APPOINTMENT the counsels of record, if the counsels are able to agree. FOR The motion for appointment and the order appointing the PARTICULAR visiting judge shall be noted on the docket. A written motion or MATTERS order may be filed among the papers of the case. The visiting judge has the powers of the county judge in relation to the matter involved. Williams v. State, 677 S.W.2d 584 (Tex. App.-San Antonio 1984). Error in appointing special judge not in compliance with statutory authority, required reversal.

Relevant Case Saylors v. State, 863 S.W.2d 769 (Tex. App.- Waco 1992). Hill County case. Judgement rendered by Special judge who has not been appointed or selected in accordance Law for with constitutional and statutory requirements governing Appointments such matters is an absolute nullity.

Applied to probate matters according to Attorney General Opinion H-1132. Texas Gov’t Code Sec. 26.023 Appointment for Absence of Judge

(a) The county judge may appoint a retired judge or a constitutional county judge from another county as a visiting judge when the county judge is absent from the county or absent because of physical incapacity. (emphasis added) (b) The visiting judge shall sit in all matters that are docketed on any of the county court’s dockets and has the powers of the county judge in relation to the matter involved. (c) Without the consent of the commissioners court, visiting judges appointed under this section may not sit for more than 15 working days during a calendar year. (d) The order appointing the visiting judge shall be noted in the docket of the court. (a) The county judge may appoint a retired judge or a Texas Gov’t constitutional county judge from another county as a visiting judge to share the bench if the county judge Code Sec. finds that the dockets of the county court reflect a case load that the county judge considers to be in excess of 26.024 that which can be disposed of properly in a manner consistent with the efficient administration of justice. Appointment (b) The visiting judge may share the bench for periods authorized by the commissioners court. to Share (c) The visiting judge shall sit in those matters authorized by the county judge and has the powers of the county Bench judge in relation to those matters. (d) The order appointing the visiting judge shall be noted on the docket of the court. Texas Gov’t Code Sec 26.026 Compensation of Visiting Judges

A visiting judge appointed under this subchapter is entitled to compensation from the commissioners court for each day the judge sits as visiting judge at the rate according to law. A visiting judge appointed under this subchapter does not have the powers of the county judge as a member and presiding officer of the commissioners court or the powers of the county judge relating to the general administration of county business.

Texas Gov’t Code Sec 26.027 No administrative powers Texas Gov’t Code Sec 26.028 Attorney Recommendations

The county judge shall consider the recommendations of attorneys of the court as to the implementation of this subchapter and the accomplishment of its purposes.

HILL COUNTY JUDGE [email protected] Justin W. Lewis

OFFICE 254-582-4020 CELL 254-580-5020