recusal hearing in Texas

2008App. 1992), and Franks v. State , 90 S.W.3d 771, 781 (Tex. App.—Fort Worth 2002, no pet.) (trial judge’s testimony from a recusal hearing should not have been admitted into evidence at trial)); see also Kemp v. State , 846 S.W.2d 289 , 305 n.9 (“In Hensarling v. State , 829 S.W.2d 168 (Tex. Crim.

2007Contrary to the State's arguments at the recusal hearing, Kniatt did not have to show "some kind of bias or prejudice" because he did not move for recusal under the first part of Rule 18b(2)(b) and because, as we hold below, bias arising only from an extrajudicial source need not be shown under Rule 18b(2)(a) or the second part of Rule 18b(2)(b), the two provisions on which Kniatt sought recusal. [5] Cumpian v. State, 812 S.W.2d 88, 91 (Tex. App.-San Antonio 1991, no pet.) ("`To require recusal, a judge's bias must be extrajudicial and not based upon in-court rulings.'") (quoting Grider v. Bos

2014We presume for the sake of argument the truth of all the factual assertions made by Fox in his motion to recuse and attached affidavit and in his arguments at the recusal hearing and that Judge Warne engaged in all the conduct alleged by Fox. 4 Under these presumptions and after having carefully considered all of these matters and the alleged conduct of Judge Warne, we conclude Judge Underwood did not err by impliedly determining that Judge Warne did not display a deep-seated favoritism or antagonism that would make fair judgment impossible. 5 See Liteky, 510 U.S. at 550-51, 555-56 , 114 S.Ct.

2004See Ludlow v. DeBerry, 959 S.W.2d 265, 271 (Tex.App.-Houston [14th Dist.] 1997, no pet.) However, as previously discussed, appellant's trial counsel admitted during the recusal hearing that Judge Harmon was "going through a great deal of effort" to be fair to his client and to every defendant in his courtroom, and the sense from the testimony was that Judge Harmon was being fair.

2026“If the appellate court determines that the judge presiding over the recusal hearing abused his or her discretion in denying the motion and the trial judge should have been recused, the appellate court can reverse the trial court’s judgment and remand for a new trial before a different judge.” Id.

2017Co., 969 S.W.2d 427, 428 (Tex. 1998) (“If the appellate court determines that the judge presiding over the recusal hearing abused his or her discretion in denying the motion and the trial judge should have been recused, the appellate court can reverse the trial court’s judgment and remand for a new trial before a different judge.”).

2006Code § 22.3 (d) (2005). 29 The Commission’s recusal rule is similar to Texas Rule of Civil Procedure 18b, which states that “a judge shall recuse himself in any proceeding in which: (a) his impartiality might reasonably be questioned.” Under rule 18b, “[r]eeusal is appropriate if the movant has provided enough facts to establish that a reasonable person, knowing all the circumstances involved, would harbor doubts as to the impartiality of the trial court, but only when the bias is of such a nature and extent as to deny the movant due process of law.” Rosas v. State, 76 S.W.3d 771, 774 (Tex.App

2006Code § 22.3 (d) 2005). (29) The Commission's recusal rule is similar to Texas Rule of Civil Procedure 18b, which states that "a judge shall recuse himself in any proceeding in which: (a) his impartiality might reasonably be questioned." Under rule 18b, "[r]ecusal is appropriate if the movant has provided enough facts to establish that a reasonable person, knowing all the circumstances involved, would harbor doubts as to the impartiality of the trial court, but only when the bias is of such a nature and extent as to deny the movant due process of law." Rosas v. State , 76 S.W.3d 771, 774 (Tex.

2023Id.

2011In reviewing the denial of the motion to recuse, we consider ―the totality of the evidence and information elicited at the recusal hearing to see if the record reveals sufficient evidence to support the recusal judge‘s ruling that the trial judge was unbiased.‖ Gaal, 332 S.W.3d at 456 ; see also Abdygapparova v. State, 243 S.W.3d 191, 199 (Tex. App.—San Antonio 2007, pet. ref‘d) (―[I]n determining whether the presiding judge erred in denying the motion to recuse, we are bound by the evidence before the presiding judge at the time of the hearing on the motion.‖).3 In his first issue, appellant

2008App. 1992), and Franks v. State , 90 S.W.3d 771, 781 (Tex. App.—Fort Worth 2002, no pet.) (trial judge’s testimony from a recusal hearing should not have been admitted into evidence at trial)); see also Kemp v. State , 846 S.W.2d 289 , 305 n.9 (“In Hensarling v. State , 829 S.W.2d 168 (Tex. Crim.

2004See In re Bruce, 112 S.W.3d 635 , 642 n. 1 (Tex.App.Fort Worth 2003, pet. dism’d, untimely filed) (where a different judge presided over the habeas corpus hearing, trial judge who had not officially recused himself from the case when the State called him as a witness was not “stepping down from the bench” and testifying as a witness in the very same proceeding over which he was currently presiding) (citing Hensarling v. State, 829 S.W.2d 168, 170 (Tex.Crim.App.1992), and Franks v. State, 90 S.W.3d 771, 781 (Tex.App.-Fort Worth 2002, no pet.) (trial judge’s testimony from a recusal hearing shou

2010Huber Corp. v. Santa Fe Energy Res., 871 S.W.2d 842, 844 (Tex.App.-Houston [14th Dist.] 1994, writ denied) (“An amended petition ... supersedes all prior petitions.... ”).

2010Huber Corp. v. Santa Fe Energy Res ., 871 S.W.2d 842, 844 (Tex. App.-Houston [14th Dist.] 1994, writ denied) ("An amended petition . . . supersedes all prior petitions . . . .").

2010P. 62, 63 (defining and explaining amendments of petitions, answers, pleadings, responses, or pleas for relief), 69 (explaining supplementation of a petition or answer), 71; In re Fifty-One Gambling Devices, 298 S.W.3d 768, 771-73 (Tex.App.Amarillo 2009, pet. denied) (concluding that the use of the terms “supplemental” and “amended” in the title of the motions did not alter their effect but rather, after reviewing the purpose of the pleadings and the substance of the motions, expanded the original recusal claim to include a constitutional claim of denial of due process and a *242 claim of impr

2010P. 62, 63 (defining and explaining amendments of petitions, answers, pleadings, responses, or pleas for relief), 69 (explaining supplementation of a petition or answer), 71; In re Fifty-One Gambling Devices , 298 S.W.3d 768, 771-73 (Tex. App.-Amarillo 2009, pet. denied) (concluding that the use of the terms "supplemental" and "amended" in the title of the motions did not alter their effect but rather, after reviewing the purpose of the pleadings and the substance of the motions, expanded the original recusal claim to include a constitutional claim of denial of due process and a claim of improp

2010P. 62, 63 (defining and explaining amendments of petitions, answers, pleadings, responses, or pleas for relief), 69 (explaining supplementation of a petition or answer), 71; In re Fifty-One Gambling Devices, 298 S.W.3d 768, 771-73 (Tex.App.Amarillo 2009, pet. denied) (concluding that the use of the terms “supplemental” and “amended” in the title of the motions did not alter their effect but rather, after reviewing the purpose of the pleadings and the substance of the motions, expanded the original recusal claim to include a constitutional claim of denial of due process and a *242 claim of impr

2010P. 62, 63 (defining and explaining amendments of petitions, answers, pleadings, responses, or pleas for relief), 69 (explaining supplementation of a petition or answer), 71; In re Fifty-One Gambling Devices , 298 S.W.3d 768, 771-73 (Tex. App.-Amarillo 2009, pet. denied) (concluding that the use of the terms "supplemental" and "amended" in the title of the motions did not alter their effect but rather, after reviewing the purpose of the pleadings and the substance of the motions, expanded the original recusal claim to include a constitutional claim of denial of due process and a claim of improp

2008App. 1992), and Franks v. State , 90 S.W.3d 771, 781 (Tex. App.—Fort Worth 2002, no pet.) (trial judge’s testimony from a recusal hearing should not have been admitted into evidence at trial)); see also Kemp v. State , 846 S.W.2d 289 , 305 n.9 (“In Hensarling v. State , 829 S.W.2d 168 (Tex. Crim.

2004See In re Bruce, 112 S.W.3d 635 , 642 n. 1 (Tex.App.Fort Worth 2003, pet. dism’d, untimely filed) (where a different judge presided over the habeas corpus hearing, trial judge who had not officially recused himself from the case when the State called him as a witness was not “stepping down from the bench” and testifying as a witness in the very same proceeding over which he was currently presiding) (citing Hensarling v. State, 829 S.W.2d 168, 170 (Tex.Crim.App.1992), and Franks v. State, 90 S.W.3d 771, 781 (Tex.App.-Fort Worth 2002, no pet.) (trial judge’s testimony from a recusal hearing shou

2014See Abdygapparova, 243 S.W.3d at 198–99 (noting that review of denial of recusal motion entered at beginning of trial cannot include trial judge’s subsequent actions during trial); Roman v. State, 145 S.W.3d 316, 319 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d).

2011Roman , 145 S.W.3d at 319 .

2015Specifically, Appellant requests review of his conviction to determine whether this Court’s assertion if it actually does “logically follow that the same [recusal] rule would have application where the trial judge had defended the accused at the time of the prior conviction.” Hathorne v. State, 459 S.W.2d 826, 829 (Tex. Crim.

2015Specifically, Appellant requests review of his conviction to determine whether this Court’s assertion if it actually does “logically follow that the same [recusal] rule would have application where the trial judge had defended the accused at the time of the prior conviction.” Hathorne v. State, 459 S.W.2d 826, 829 (Tex. Crim.

2014See Abdygapparova, 243 S.W.3d at 198–99 (noting that review of denial of recusal motion entered at beginning of trial cannot include trial judge’s subsequent actions during trial); Roman v. State, 145 S.W.3d 316, 319 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d).

2011In reviewing the denial of the motion to recuse, we consider ―the totality of the evidence and information elicited at the recusal hearing to see if the record reveals sufficient evidence to support the recusal judge‘s ruling that the trial judge was unbiased.‖ Gaal, 332 S.W.3d at 456 ; see also Abdygapparova v. State, 243 S.W.3d 191, 199 (Tex. App.—San Antonio 2007, pet. ref‘d) (―[I]n determining whether the presiding judge erred in denying the motion to recuse, we are bound by the evidence before the presiding judge at the time of the hearing on the motion.‖).3 In his first issue, appellant

2014We presume for the sake of argument the truth of all the factual assertions made by Fox in his motion to recuse and attached affidavit and in his arguments at the recusal hearing and that Judge Warne engaged in all the conduct alleged by Fox. 4 Under these presumptions and after having carefully considered all of these matters and the alleged conduct of Judge Warne, we conclude Judge Underwood did not err by impliedly determining that Judge Warne did not display a deep-seated favoritism or antagonism that would make fair judgment impossible. 5 See Liteky, 510 U.S. at 550-51, 555-56 , 114 S.Ct.

2014We presume for the sake of argument the truth of all the factual assertions made by Fox in his motion to recuse and attached affidavit and in his arguments at the recusal hearing and that Judge Warne engaged in all the conduct alleged by Fox. 4 Under these presumptions and after having carefully considered all of these matters and the alleged conduct of Judge Warne, we conclude Judge Underwood did not err by impliedly determining that Judge Warne did not display a deep-seated favoritism or antagonism that would make fair judgment impossible. 5 See Liteky, 510 U.S. at 550-51, 555-56 , 114 S.Ct.

2026“This procedure is no different than the correction of any trial court error through the normal appellate process.” Id. “[A]n appellate remedy is not inadequate merely because it may involve more expense or delay than obtaining an extraordinary writ. . . . [T]he ‘delay in getting questions decided through the appellate process . . . will not justify intervention by appellate courts through the extraordinary writ of mandamus.’” Walker, 827 S.W.2d at 842 (quoting Iley v. Hughes, 311 S.W.2d 648, 652 (1958)).

2025See Browning v. Prostok, 165 S.W.3d 336 , 345–46 (Tex. 2005) (“Collateral attacks on final judgments are generally disallowed because it is the policy of the law to give finality to the judgments of the courts.”); see also Cheney v. Norton, 181 S.W.2d 835, 836 (Tex. App.—Dallas 1944, to reporter’s supplemental record of the recusal hearing before Judge Chu, in which Judge Chu comments that the attorney’s faces were blank, and that one had sneezed. 14 writ ref’d) (holding that collateral attack on probate orders through bill of review was prohibited).

2025See Browning v. Prostok, 165 S.W.3d 336 , 345–46 (Tex. 2005) (“Collateral attacks on final judgments are generally disallowed because it is the policy of the law to give finality to the judgments of the courts.”); see also Cheney v. Norton, 181 S.W.2d 835, 836 (Tex. App.—Dallas 1944, to reporter’s supplemental record of the recusal hearing before Judge Chu, in which Judge Chu comments that the attorney’s faces were blank, and that one had sneezed. 14 writ ref’d) (holding that collateral attack on probate orders through bill of review was prohibited).

2023See Minor v. Young, No. 05-99-01579-CV, 2000 WL 1023788 , at *2 (Tex. App.—Dallas July 26, 2000, no pet.) (mem. op.) (rejecting argument that recusal judge abused his discretion in denying a motion to recuse the trial judge) (citing El Chadiac v. Cramer, 756 S.W.2d 325, 326 (Tex. App.—Dallas 1988, writ denied)).

2023P. 18a(j)(1)(A); In re E.R.C., 496 S.W.3d 270, 279 (Tex. App.— Texarkana 2016, pet. denied) (explaining that, under this standard, appellate courts “view the evidence [from a recusal hearing] in a light most favorable to the court’s decision and indulge every legal presumption in favor of its judgment”).

2022See id. 18a(g)(3)(A).

2018Bowman, 447 S.W.3d 10 at 888-89 (remanding because, other than the length of the delay, there was nothing in the trial record from which to ascertain whether laches has been proved) (citing Smith, 444 S.W.3d at 670 ) (remanding to afford applicant the opportunity to explain his delay); see also Fuelberg v. State, 410 S.W.3d 498, 510 (Tex. App.—Austin 2013, no pet.) (abating and remanding for a new recusal hearing where trial court did not apply the correct standard).6 The trial court’s order is reversed and the cause remanded for further proceedings in accordance with this opinion. /s/ John Do

2016See Gaal, 332 S.W.3d at 456 ; Steadman v. State, 31 S.W.3d 738, 741 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d).

2016See In re Lewis, No. 09-15-00360-CV, 2016 Tex. App. LEXIS 5046 (Tex. App.— Beaumont May 12, 2016, pet. filed); In re Massingill, No. 09-15-00365-CV, 2016 Tex. App. LEXIS 4769 (Tex. App.—Beaumont May 5, 2016, pet. filed) (mem. op.).

2015Tate v. State. 834 S.W.2d 566, 569-70 (Tex.App.-Houston [1st Dist.) 1992, pet. ret'd); Thomas v. Walker, 860 S.W.2d 579, 581 (Tcx.App.- Waco 1993 , no writ) ("Regarding Judge Walker's ruling quashing the subpoenas duces tecum secured by Relator to obtain Judge Black's testimony and that of his wife at the recusal hearing, no abuse of discretion on Judge Walker's part has been shown.'"') Any inquiry into Judge Wood's mental processes in arriving at his decisions would be improper and would threaten the foundation of an honorable and independent judiciary.