Motion to Disqualify a Judge in Texas

What Is a Motion to Disqualify a Judge?

The procedure for the disqualification and recusal of judges is set out in Texas Rule of Civil Procedure 18a. (Tex. R. Civ. P. 18a; see Castano v. San Felipe Agricultural, Manufacturing, & Irrigation Co. (2004) 147 S.W.3d 444, 451.) The rule requires that a motion to recuse or disqualify shall be filed at least ten days before the date set for trial or other hearing, that the motion shall be verified, and that the motion must state with particularity the grounds why the judge before whom the case is pending should not sit. (Id.)

Grounds for Disqualification

Tex. R. Civ. P. 18b(a) provides:

Grounds for Disqualification. A judge must disqualify in any proceeding in which:

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 association as a lawyer concerning the matter;
the judge knows that, individually or as a fiduciary, the judge has an interest in the subject matter in controversy; or
either of the parties may be related to the judge by affinity or consanguinity within the third degree.

In Texas, a judge may be removed from a case because he is constitutionally disqualified, subject to a statutory strike, or recused. (In re Union Pac. Res. Co. (1998) 969 S.W.2d 427, 428.)

The grounds and procedures for each type of removal are fundamentally different. (Id.)

Judge as Lawyer

In establishing the grounds for judicial disqualification, the Texas Constitution states, “No judge shall sit in any case ... when the judge shall have been counsel in the case.” (Tex. Const. art. V, § 11.) Judicial disqualification is also addressed in the Texas Rules of Civil Procedure, which provide that:

“Judges shall disqualify themselves in all proceedings in which: (a) they have served as a lawyer in the matter in controversy, or a lawyer with whom they previously practiced law served during such association as a lawyer concerning the matter....”

(Tex. R. Civ. P. 18b(a)(1).)

Rule 18b(a)(1)'s reference to the “same matter in controversy” is synonymous with the Texas Constitution's reference to “the case.” (Tesco Am., Inc. v. Strong Indus., Inc. (2006) 221 S.W.3d 550, 553 [rule 18b(1)(a) “was intended to expound rather than expand the Constitution.”]; Slaven v. Wheeler, 58 Tex. 23, 25 [1882].)

The same "matter in controversy" must be involved, regardless of whether the same lawsuit is involved. (In re O'Connor, infra, 92 S.W.3d at 449.) As the Supreme Court of Texas states,

By its own terms, rule 18b(1)(a) is not limited to disqualifying a trial judge only when the “same lawsuit” is involved. Rather, in plain language, rule 18b(1)(a) requires disqualification when the same “matter in controversy” is involved.

(In re Wilhite (2009) 298 S.W.3d 754, 758 citing Tex. R. Civ. P. 18b(1)(a)).)

Thus, a judge is disqualified when two prongs are met:

the judge or the judge's law firm was the attorney for a party in the case, and
the matter before the judge is the same matter that was before the judge or judge's law firm.

(See In re O'Connor (2002) 92 S.W.3d 446, 448.)

A judge will not be disqualified if only prong one applies. City of Austin v. Cahill, 99 Tex. 172, 89 S.W. 552, 552 (1905) (judge who has previously represented one party currently before him on different matter is not disqualified.). Nor will a judge be disqualified if only prong two applies. (See Glasscock v. Hughes (1881) 55 Tex. 461, 468-69 [fact that judge has “been connected as counsel at one period with the matters, or a portion of them” does not disqualify him]; Matlock v. Sanders (1954) 273 S.W.2d 956, 957-58 [judge not disqualified even if, as attorney, he previously gave his opinion in regard to validity of title to land in controversy before him, when controversy concerns different parties than any of those previously represented by judge]); Butts v. Davis (1912) 149 S.W. 741, 742 [judge who “long prior to the institution of the suit" had rendered legal advice on similar matter to lawsuit he currently presided over should not be disqualified because it "in no way involved this action.”). Therefore, both prongs must be present for a judge to be disqualified. (In re Wilhite (2009) 298 S.W.3d 754, 764.)

Judge's Financial Interest

To warrant disqualification, the judge's interest must be a direct pecuniary or property interest in the very subject matter of the litigation such that the interest will be specially affected by the suit. (Palais Royal Inc. v. Partida (1996) 916 S.W.2d 650, 653 citing Nueces County Drainage and Conservation Dist. No. 2 v. Bevly (1975) 519 S.W.2d 938, 951.) A judge is not disqualified by his interest in a case if that interest is affected only "remotely, or at some future date, from the general operation of law upon the status fixed by the judgment." (Narro Warehouse, Inc. v. Kelly (1975) 530 S.W.2d 146, 149.) Similarly, a judge's interest merely in the legal question to be determined is not disqualifying. (Bevly, supra, 519 S.W.2d at 951.)

Grounds for Recusal

Tex. R. Civ. P. 18b(b) provides:

Grounds for Recusal. A judge must recuse in any proceeding in which:

the judge's impartiality might reasonably be questioned;
the judge has a personal bias or prejudice concerning the subject matter or a party;
the judge has personal knowledge of disputed evidentiary facts concerning the proceeding;
the judge or a lawyer with whom the judge previously practiced law has been a material witness concerning the proceeding;
the judge participated as counsel, adviser, or material witness in the matter in controversy, or expressed an opinion concerning the merits of it, while acting as an attorney in government service;
the judge knows that the judge, individually or as a fiduciary, or the judge's spouse or minor child residing in the judge's household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
the judge or the judge's spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

is a party to the proceeding or an officer, director, or trustee of a party;
is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding; or
is to the judge's knowledge likely to be a material witness in the proceeding.

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 a person, is acting as a lawyer in the proceeding.

Disqualification or Recusal

A most distinguishing factor between disqualification and recusal is that recusal may be waived if not raised by proper motion. (See Humble Exploration Co. v. Browning (1984) 677 S.W.2d 111, 114; Gaines v. Gaines (1984) 677 S.W.2d 727, 730.)

“Disqualification [...] is a different creature [from recusal] in that it survives silence.” (Gulf Maritime Warehouse v. Towers (1993) 858 S.W.2d 556, 559-60.) “Although Rules 18a and 18b set forth certain distinguishing characteristics between disqualification and recusal, these rules are lacking of fine-line clarity, particularly regarding effect.” (Id.)

“While recusal requires a certain degree of procedural ‘tip-toeing,’ not so with disqualification. Disqualification may be raised at any time.” (See Buckholts Indep. School Dist. v. Glaser (1982) 632 S.W.2d 146, 148.) “Furthermore, disqualification may even be raised for the first time in a collateral attack on the judgment.” (See Lee v. State (1977) 555 S.W.2d 121, 124; Ex parte Washington (1969) 442 S.W.2d 391, 393.) Either a trial court or appellate court may raise the question of disqualification on its own motion. (See Lee, 555 S.W.2d at 122; City of Houston v. Houston Lighting Power Co. (1975) 530 S.W.2d 866, 868; Pinchback v. Pinchback (1960) 341 S.W.2d 549, 553.)

Response to Order Denying a Motion to Disqualify

An order denying a motion to disqualify is interlocutory. (Dickson v. Dickson, (1974) 516 S.W.2d 28, 31.) Such an order “may be reviewed by mandamus and may be appealed in accordance with other law.” (Tex. R. Civ. P.18a(j)(2).) Because there is no “other law” permitting the interlocutory appeal of an order denying a motion to disqualify in a case such as this, the denial of the motion to disqualify may also be reviewed only upon appeal from final judgment. (Gore v. Gore (2014) No. 05-13-01025-CV, at *3.)

Mandamus relief is proper when a trial court erroneously denies a motion to disqualify. (In re Wilhite (2009) 298 S.W.3d 754, 757 citing In re O'Connor (2002) 92 S.W.3d 446, 450.) An erroneous ruling on a recusal, however, has historically not been addressed by mandamus relief, but rather by direct appeal after the rendition of a final, appealable judgment. (In re Union Pac. Res. Co. (1998) 969 S.W.2d 427, 428.)

Documents for Motion to Disqualify a Judge in Texas

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Leigh Ann Hood vs. Millman Steel, Inc. document preview

Notice of Oral Hearing - Leigh Ann Hood - Notice

3 pages

Cause Number24-03-03962 Leigh Ann Hood In the District Court Plaintiff, versus § of Montgomery County, Texas Mill Man Steel, Inc. Defendant § 284th Judicial District NOTICE OF ORAL HEARING Plaintiff Leigh Ann Hood motion to disqualify is set for in person, oral hearing on May , …