The Origins and Development of Judicial Recusal in Texas
| Author | John C. Domino |
| Position | Professor of Political Science and Legal Studies, Sam Houston State University |
| Pages | 149-175 |
Br. J. Am. Leg. Studies 5 (2016), DOI: 10.1515/bjals-2016-0005
T O D J
R T
John C. Domino*
Sam Houston State University, USA
ABSTRACT
In 21st century Texas, a judge’s decision to recuse from a case is based on a
complex set of norms, codes and procedures intended to promote impartia-
lity. For most of the state’s history, however, the sole ground for the removal
of a judge from a case was not recusal for bias but disqualication based on
rigid conditions set out in the Texas Constitution. This article examines the
foundations and emergence of the modern concept of judicial recusal in Texas
with the intent to illustrate a shift from rigid constitutional grounds to a more
uid approach based on judicial interpretation of a code of conduct. The au-
thor concludes that while Texas disqualication and recusal jurisprudence is
conservative and restrained, it remains to be seen whether this restraint can
continue unchanged in a post-Caperton era. The Caperton probability of bias
standard has become part of the dialogue on recusal and disqualication in
Texas, but Caperton-based challenges are unlikely to prevail in the near futu-
re because many members of the bench and bar share the belief that the state’s
judicial campaign contribution restrictions and recusal jurisprudence create
a rewall against violations of the Due Process Clause. The risk, however, is
that continued resistance to change may further erode public condence in
existing ethical safeguards and fall short of assuaging concerns that wealthy
donors continue to exercise disproportionate inuence on the judiciary.
* Professor of Political Science and Legal Studies, Sam Houston State University. Email:
jcd@shsu.edu
CONTENTS
I. C C L O ......................150
II. E R B T .......................... 156
III. D, R, J P ...........162
IV. T A Caperton T .................................173
© 2015 John C. Domino, licensee De Gruyter Open.
This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 3.0 License.
150
5 Br. J. Am. Leg. Studies (2016)
Judicial recusal—a judge’s withdrawal from a legal case because of personal
bias or prejudice—is a mid-twentieth century development in Texas juris-
prudence. In twenty-rst century Texas, a judge’s decision to recuse from
a case is based on a complex set of norms, codes, and procedures intended
to promote impartiality. For most of the state’s history, however, the sole
ground for the removal of a judge from a case was not recusal for bias but
disqualication by reference to the conditions set out in the Texas Consti-
tution. Although the two terms “disqualication” and “recusal” are often
used interchangeably in Texas, the two concepts are differentiated because
the legal authority and grounds for each are fundamentally different. If dis-
qualied from a case on constitutional grounds, a judge does not have ju-
risdiction in the case and any ruling or decree made has no effect.1 Recusal
from a case, on the other hand, occurs voluntarily if the judge’s impartiality
might reasonably be questioned. 2 Refusal to recuse results in the transfer of
the case to another court or assignment of another judge to the case.3This
article examines the foundations and the emergence of the modern concept
of judicial recusal in Texas. It begins with an historical examination of dis-
qualication rulings of the Texas Supreme Court and lower appellate courts
in order to understand early foundational thinking about the circumstances
under which a judge should not hear a case, but my primary interest here is
the emergence of the body of rules and norms of behavior governing judicial
recusal that arose in the late twentieth century. I hope to illustrate a shift
from rigid constitutional grounds to a more uid modern approach based
on judicial interpretation of a code of conduct. Of course, the body of case
law dealing with disqualication as well as recusal is substantial. A complete
treatment is beyond the scope of a single article. The focus here will be on
those rulings that have had a major precedential impact on the origins and
development of the modern concept of recusal.
I. C C L O
In nineteenth century Texas, the grounds for the removal of a judge from a
case were pecuniary interest and consanguinity4 based on the Texas Con-
stitution and the common law. The 1836 Constitution adopted by the Re-
public of Texas reected the old English common law rule that the only
basis for disqualication of a judge was direct pecuniary interest—that is,
1 Art. V, § 11, of the Constitution of Texas.
2 Rule 18b of the Tex. R. Civ. P.
3 See http://www.txcourts.gov/rules-forms/rules-standards.aspx.
4 Thedegreeofafnitytopartiesinalawsuit.
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