Recusal and Disqualification


One of the guiding principles of the American system of jurisprudence is the idea of an independent and neutral judiciary. In order to ensure the aims of justice and to protect the integrity of the judicial system, all judges must understand the law governing (1) disqualification and (2) recusal. While the terms disqualification and recusal are used interchangeably, such use is a grievous error. If a judge is disqualified under the constitution, he or she is absolutely without jurisdiction in the case, and any judgment rendered by him or her is void, without effect, and subject to collateral attack. The failure of a judge to recuse when recusal is appropriate can constitute a violation of the Code of Judicial Conduct. Failure to recuse may rise to the level of disqualification when it impacts a litigant’s right to due process.

S.B. 480, passed by the 82nd Legislature and effective June 17, 2011, repealed problematic Government Code Section 29.012 and replaced it with a comprehensive series of procedures located in Subchapter A-1 of Chapter 29 of the Government Code. These new highly detailed laws, adapted from Texas Rule of Civil Procedure 18a, are designed to accommodate all sizes of municipal courts, and strike a balance between uniformity in application of the law and judicial efficiency. The new series of laws can be used in any kind of criminal or civil case in which a municipal court has jurisdiction.


The text of Subchapter A-1, Chapter 29, Government Code is set out below.

Sample orders and letters have been included where necessary. Simply click on the Word icon where it appears to download the SAMPLE order or letter.

Other Resources:

Read the bill summary for S.B. 480, printed in the TMCEC Legislative Update materials.

The grounds for disqualification are set out in the Texas Constitution and Article 30.01 of the Code of Criminal Procedure.

The grounds for recusal are set out in Texas Rule of Civil Procedure 18b.

Download a chart and accompanying commentary detailing the new procedures set out in Subchapter A-1.

Download the Bench Book checklist detailing the new procedures.

To find your Regional Presiding Judge, visit the Office of Court Administration website.

 


Government Code, Chapter 29, Subchapter A-1 

RECUSAL OR DISQUALIFICATION OF MUNICIPAL JUDGES

Sec. 29.051. Definitions. 

In this chapter:

(1)  "Active judge" means a person who holds office as a district court judge or statutory county court judge.

(2)  "Presiding judge" means the presiding judge of a municipal court, including a municipal court of record.

(3)  "Regional presiding judge" means the presiding judge of the administrative judicial region appointed under Section 74.005.

 

Sec. 29.052. Motion for Recusal or Disqualification.

(a)  A party in a hearing or trial in a municipal court, including a municipal court of record, may file with the clerk of the court a motion stating grounds for the recusal or disqualification of the municipal judge.  The grounds may include any disability of the judge to preside over the case.

(b)  A motion for the recusal or disqualification of a municipal judge must:

(1)  be filed at least 10 days before the date of the hearing or trial, except as provided by Subsection (c);

(2)  be verified; and

(3)  state with particularity the alleged grounds for recusal or disqualification of the judge based on:

(A)  personal knowledge that is supported by admissible evidence; or

(B)  specifically stated grounds for belief of the allegations.

(c)  A motion for recusal or disqualification must be filed at the earliest practicable time before the beginning of the trial or other hearing if a judge is assigned to a case 10 or fewer days before the date set for a trial or hearing.

 

Sec. 29.053. Notice. 

A party filing a motion for recusal or disqualification under this subchapter shall serve on all other parties or their counsel:

(1)  copies of the motion; and

(2)  notice that the movant expects the motion to be presented to the judge three days after the filing of the motion unless the judge orders otherwise.

 

Sec. 29.054. Statement Opposing or Concurring with Motion. 

A party may file with the clerk of the court a statement opposing or concurring with a motion for recusal or disqualification at any time before the motion is heard.

 

Sec. 29.055. Procedure Following Filing of Motion; Recusal or Disqualification Without Motion.

(a)  Before further proceedings in a case in which a motion for the recusal or disqualification of a municipal judge has been filed, the judge shall:

(1)  recuse or disqualify himself or herself; or

(2)  request the regional presiding judge to assign a judge to hear the motion.

(b)  A municipal judge who with or without a motion recuses or disqualifies himself or herself:

(1)  shall enter an order of recusal or disqualification and:

(A)  if the municipal judge is not the presiding judge, request the presiding judge to assign any other judge of the municipal court, including the presiding judge, to hear the case;

(B)  if the municipal judge is the presiding judge, request the regional presiding judge to assign another judge of the municipal court to hear the case; or

(C)  if the municipal judge serves in a municipality with only one municipal judge, request the regional presiding judge to assign a judge of another municipal court in the county to hear the case; and

(2)  may not take other action in the case, except that a judge who recuses himself or herself for good cause may take other action as stated in the order in which the action is taken.

(c)  A municipal judge who does not recuse or disqualify himself or herself:

(1)  shall forward, in original form or certified copy, an order of referral, the motion, and all opposing and concurring statements to the regional presiding judge; and

(2)  may not take other action in the case during the time after the filing of the motion for recusal or disqualification and before a hearing on the motion, except for good cause stated in the order in which the action is taken.

 

Sec. 29.056. Hearing on Motion. 

(a)  A regional presiding judge who receives a request for the assignment of a judge to hear a motion to recuse or disqualify shall:

(1)  immediately set a hearing before the regional presiding judge, an active judge, or a judge on the list of judges who are eligible to serve on assignment under Section 74.055;

(2)  cause notice of the hearing to be given to all parties or their counsel; and

(3)  make any other orders, including orders on interim or ancillary relief in the pending cause as justice may require.

(b)  A judge who hears a motion for recusal or disqualification under Subsection (a) may also hear any amended or supplemented motion for recusal or disqualification filed in the case.

(c)  If none of the parties to an action object, a hearing under Subsection (a) or (b) may be conducted by telephone.

 

Sec. 29.057. Procedure Following Granting of Motion.

(a)  If a motion for recusal or disqualification is granted after a hearing is conducted as provided by Section 29.056, the judge who heard the motion shall enter an order of recusal or disqualification, and:

(1)  if the judge who was the subject of the motion is not the presiding judge, request that the presiding judge assign any other judge of the municipality, including the presiding judge, to hear the case;

(2)  if the judge who was the subject of the motion is the presiding judge, request the regional presiding judge to assign another judge of the municipality to hear the case; or

(3)  if the judge subject to recusal or disqualification is located in a municipality with only one municipal judge, request the regional presiding judge to assign a judge of another municipal court in the county to hear the case.

(b)  If the presiding judge is unable to assign a judge of the municipality to hear a case when a municipal judge is recused or disqualified under Section 29.055 or 29.056 because there are not any other municipal judges in the municipality or because all the municipal judges have been recused or disqualified or are otherwise unavailable to hear the case, the presiding judge shall request the regional presiding judge to first assign a municipal judge from another municipality in the county or, if necessary, assign a municipal judge from a municipality in an adjacent county to hear the case.

(c)  If the regional presiding judge is unable to assign a judge to hear a case when a municipal judge is recused or disqualified under Section 29.055 or 29.056 because there are not any other municipal judges in the county or because all the municipal judges have been recused or disqualified or are otherwise unavailable to hear the case, the regional presiding judge may assign a municipal judge from a municipality in an adjacent county to hear the case.

 

Sec. 29.058. Appeal.

(a)  After a municipal court of record has rendered a final judgment in a case, a party may appeal an order that denies a motion for recusal or disqualification as an abuse of the court's discretion.

(b)  A party may not appeal an order that grants a motion for recusal or disqualification.

 

Sec. 29.059. Contempt. 

If a party files a motion to recuse or disqualify under this subchapter and it is determined by the judge hearing the motion, at the hearing and on motion of the opposing party, that the motion to recuse or disqualify is brought solely for the purpose of delay and without sufficient cause, the judge may in the interest of justice find the party filing the motion in contempt under Section 21.002(c).

 

Sec. 29.060. Compensation.

(a)  An active judge who is assigned to hear a motion to recuse or disqualify a municipal judge under this subchapter is not entitled to additional compensation other than travel expenses.  A judge assigned to hear a motion to recuse or disqualify who is not an active judge is entitled to:

(1)  compensation of $450 per day of service, prorated for any day for which the judge provides less than a full day of service; and

(2)  travel expenses.

(b)  A municipal judge assigned under this subchapter to hear a case in a court other than the one in which the judge resides or serves is entitled to compensation provided by law for judges in similar cases and travel expenses.

(c)  The municipality in which a case subject to this subchapter is pending shall pay the compensation and travel expenses due or incurred under this subchapter.