In re Amos
Dallas Court of Appeals, No. 05-12-01500-CV (March 6, 2013)
Justices Moseley, FitzGerald (Opinion), and Myers
When a judge assigned to rule on a recusal motion announced her intention to reconsider her order recusing the challenged, original trial judge—at the request of that original judge, and in order to allow that judge to participate—the court of appeals conditionally granted mandamus to prohibit reconsideration. The court held that it would be improper for the original judge to participate in the recusal hearing process, upon reconsideration or otherwise, and also that the assigned judge’s authority ceased after she decided the motion to recuse and the presiding administrative judge reassigned the case to a new court.
Relator was a defendant in a criminal case. When she filed a motion seeking recusal of the trial judge, the presiding administrative judge assigned the motion to a former judge for decision. After a hearing attended by counsel for Relator and the State, the assigned judge found grounds to justify recusal (“the appearance of impropriety, the appearance of prejudice”) and signed an order to that effect. Three weeks later, the original trial judge filed a motion for reconsideration, arguing that she was a necessary party to the recusal hearing and had been deprived of the opportunity to cross-examine witnesses and present argument and evidence. The assigned judge granted the motion for reconsideration, and set the motion to recuse for another hearing, which would include the original trial judge. Relator immediately sought mandamus, asking the appeals court to bar that hearing and vacate the order granting reconsideration.
The court of appeals found the reconsideration order improper on two grounds. First, the court observed that it would defeat the purpose of having recusal motions referred to another judge for decision if the challenged judge continued to participate in the process. “It is not just inappropriate,” said the court, “but blatantly improper for a challenged judge to take action designed to influence the outcome of the matter at issue. To hold otherwise would seriously compromise the independence of the assigned judge and undermine the integrity of the judicial recusal process.” Noting that Tex. R. Civ. P. 18a expressly provides that the challenged judge “should not file a response to the motion” for recusal, the court said that “it follows that a judge who has actually been recused should not file a motion for reconsideration of that decision.”
In addition, the court held that the assigned judge exceeded her authority when she purported to issue the reconsideration order after having decided the motion to recuse, and after the presiding judge had reassigned the case. After that, her assignment was complete and she had no continuing power over the recusal motion.
Finally, the court brushed aside arguments that conducting the recusal hearing without affording the trial judge notice or the chance to be heard violated her due process rights, and that Relator was not entitled to mandamus relief because she had not first presented her arguments to the assigned judge at the hearing set upon reconsideration. On the first point, the court held that the challenged judge had no constitutionally protected interest in presiding over Relator’s case, and therefore suffered no due process violation. With respect to the second, the court observed that the purpose of Relator’s mandamus petition was to prevent the hearing upon reconsideration from going forward at all, and therefore she did not have to jump through the hoop of attending that challenged hearing in order to present her arguments, and only then to seek mandamus help from the appeals court.
