September-October 2010

To recuse or not to recuse?

A guide for prosecutors (in both fighting a defendant’s motion and in filing our own motion) on this possibly touchy topic

Andrea Westerfeld

Assistant Criminal District Attorney in Collin County

One foundation of the American legal system is the idea that a person should be tried by a neutral court instead of a judge or jurors who have a personal interest in the outcome. For a jury, the entire voir dire process is intended to discover who might be biased in the case. But for a judge, there is no formal procedure. Judges simply have an ethical obligation to recuse themselves if they know of any reason to do so, and the parties may file a motion to recuse if they believe a judge should not hear the case.

    Prosecutors therefore have two potential roles when judicial recusal becomes an issue. We may have to argue against a recusal when a defendant is trying to force a judge to be removed, or we may need to file the recusal motion ourselves. This article is intended to give a general guide to prosecutors for handling motions to recuse from either side, including both the grounds when a recusal is necessary and the procedural aspects of a motion to recuse.

Disqualification v. recusal

There are actually two distinct ways of removing a judge from a case, disqualification and recusal. The terms are often used interchangeably, but they are very different. Grounds for disqualification are found in the Texas Constitution and the Rules of Civil Procedure.1 (All recusals, including in criminal cases, are governed by Rule of Civil Procedure 18a.)2 These grounds include where the judge has previously served as a lawyer on the case,3 has a personal or financial interest in its outcome, or is related to any of the parties.4 Disqualification is concerned with situations where the judge has a direct, personal connection to the case.

    Most importantly, disqualification is absolute. A recusal may be waived by failing to file a timely motion,5 but disqualification may be raised at any time because actions taken by a judge who is disqualified are void.6 Disqualification may even be raised for the first time on a collateral attack or by the appellate court on its own motion.7 Therefore, if you know of any reason why your judge is disqualified on a case, it is vital to raise the issue immediately so that a new judge may take over. Otherwise, all of your hard work may be useless.

When is recusal necessary?

Recusal is an important matter and not something that should be taken lightly. Judges should not recuse themselves for no reason. Judges have a duty to sit and decide matters brought before them unless a valid basis exists for recusal.8 There is as much obligation for a judge not to recuse himself where there is no valid reason as there is for him to do so where there is such a reason. And the parties have an incentive for not filing recusal motions on a whim as well: If the judge presiding at the recusal hearing determines that the recusal was brought “solely for delay and without sufficient cause,” then the judge may assign sanctions.9

    The reasons for recusal are governed by Rule of Civil Procedure 18b. Some of the reasons are very specific. A judge may not sit on a case where he has a financial interest in the case, whether in one of the parties to the case or in the “subject matter in controversy.”10 Judges have an obligation to stay informed of their various financial interests and that of their spouses and children so they know when they may run afoul of this rule.11 The only exception is if the financial interest is in a mutual fund that owns securities—the judge’s interest is only in the mutual fund itself, not each individual security owned.12 If, however, the judge takes an active role in the management of the mutual fund, then the rule applies.13 Similarly, if the judge holds an office in a charitable or civic organization, the judge does not have a financial interest in the securities held by the organization.14

    A judge must also recuse himself if the judge, his former law partner, or his close relative has been or will likely be a material witness in the case.15 In part, this is because the Rules of Evidence prohibit the judge of a proceeding from testifying as a witness, and thus not requiring the judge to recuse himself could deprive a party of a necessary witness.16 But this requirement applies only when the judge is a material witness. Otherwise a party could force the recusal of a judge merely by threatening to call that judge as a witness.17 Although “material witness” is not defined, the Court of Criminal Appeals has held that a witness was not material when he was not a witness to the offense, had no personal knowledge of the offense, and could not provide relevant evidence regarding the defendant’s mental state or motive.18 As a party may not disqualify opposing counsel by unnecessarily calling counsel as a witness, so too a party may not recuse a judge merely by claiming the judge might be a witness.19

    A judge’s actually having served as a lawyer on the case is a grounds for disqualification, not simply recusal.20 But if the judge’s spouse or close relative is a lawyer on the case, then the judge must recuse himself.21 Also, if the judge “participated” in the case—even as an adviser or merely giving an opinion on the merits—as a government attorney, then he is also subject to recusal.22

    Most contested recusals, however, fall under the two more general “catch-all” provisions. A judge must recuse himself in any proceeding in which his impartiality might reasonably be questioned, where he has a personal bias or prejudice against the subject matter or the parties, or where he has personal knowledge of any disputed facts.23 But “bias or prejudice” does not simply mean any unfavorable disposition toward a party.24 It refers to a disposition that is wrongful or inappropriate, either because it is based upon an improper source or is excessive. A recusal based on bias or prejudice must show “a deep-seated favoritism or antagonism that would make fair judgment impossible.”25 Bias may be a ground for disqualification “only when it is shown to be of such nature, and to such extent, as to deny the defendant due process of law.”26

    The test for deciding whether bias or prejudice has been proven is whether the movant showed facts to establish that a reasonable person, knowing all the circumstances involved, would harbor doubts as to the impartiality of the trial judge.27 Keep in mind that this is a person knowing all the circumstances involved. As Justice Scalia recently reminded us, determining whether a judge’s impartiality might be questioned should be based “in light of the facts as they existed, not as they were surmised or reported.”28 Media reports alone do not subject a judge to recusal. The reports must be supported with evidence. Facts, not speculations, establish grounds for recusal.

    Generally, bias or prejudice must be from an extra-judicial source to warrant recusal.29 If a judge hears evidence in a case and becomes convinced the defendant is a terrible person, that is not grounds for a recusal. Rather, it is a necessary part of trial to make judgments based on the evidence. “Impartiality is not gullibility. Disinterestedness does not mean child-like innocence. If the judge did not form judgments of the actors in those court-house dramas called trials, he could never render decisions.”30 But if the judge’s beliefs—although based on events occurring at trial—are so extreme that they make fair judgment impossible, the judge may still be subject to recusal.

    For this reason, judicial rulings alone almost never constitute a valid basis for a bias or partiality claim because they will rarely show the kind of favoritism or antagonism required.31 Expressions of “impatience, dissatisfaction, annoyance, and even anger” do not show the kind of bias that would subject a judge to recusal.32 A judge’s pretrial actions, including issuing a search warrant or ruling on a motion to suppress, also do not inherently show bias.33 And the mere fact that a judge has previously tried a particular defendant does not establish bias or partiality.34

    In short, a judge may be recused if only he has some actual interest—personal, familial, or financial—in the outcome of a case, or where he has shown himself to be so prejudiced against one of the parties or the case’s subject matter that he cannot be trusted to rule fairly. The threshold is a high one, and it is meant to be. Judges are presumed to be impartial and are trusted to apply the law fairly to all sides. It is only when there is a genuine reason to question a judge’s impartiality that he should be removed from a case.

Procedural guidelines

After deciding whether the judge in a particular case is subject to recusal, there are still important procedural requirements to consider. As mentioned before, all recusals, including in criminal cases, are governed by Rule of Civil Procedure 18a.35 A party’s failure to comply with the requirements of Rule 18a waives any right to complain about the judge’s failure to recuse himself.36 A motion to recuse must be verified, based on personal knowledge, and set out with particularity the grounds of disqualification.37 It must be filed at least 10 days before the trial setting or “any hearing,”38 meaning a substantive hearing of some kind rather than a merely ministerial act by the court.39 If grounds for recusal arise less than 10 days before trial, then the motion must be filed at the “earliest practicable time” after the grounds for recusal become apparent.40 If a motion is filed less than 10 days before the proceeding, then the party must explain in the motion how the grounds for recusal only just developed or risk its dismissal as untimely filed.

    Once a timely motion has been filed, the judge is left with only two options: either recuse himself or refer the matter to another judge to decide.41 There previously was a separate standard for criminal judges, allowing them to first decide whether the motion stated sufficient grounds for recusal.42 However, the Court of Criminal Appeals determined that there was no reason for criminal judges to have a different standard than civil judges.43 The only determination that the judge may make is whether the motion was timely filed because an untimely motion for recusal does not trigger the requirements of Rule 18a.44

    If the judge declines to recuse himself, he must forward a copy of the motion to the district administrative judge.45 The administrative judge must then hold a hearing personally or designate another judge to conduct it.46 Generally the administrative judge will assign another judge in the same county to hear the recusal hearing, if one is available, but the decision is completely discretionary. The hearing is mandatory; the defendant’s failure to object does not waive the right.47

    If the order is granted, then the presiding judge appoints another judge to hear the case.48 An order granting a motion to recuse may not be appealed.49 An order denying the motion may be appealed but only after the final judgment.50 There is no right to an interlocutory appeal.


Recusal is not a method of first resort. There are many requirements that must be met before a judge can be removed from a case, both from a procedural standpoint and on the merits. Prosecutors should zealously oppose any attempt to remove a judge that does not meet the standards of recusal. But they should be equally zealous in pursuing a recusal where there is a genuine question of the judge’s impartiality, on either side. The justice system can only succeed where both sides can be confident of receiving a fair trial from an unbiased judge.


1 Tex. Const. art. V, §11; Tex. R. Civ. P. 18b(1).
2 Arnold v. State, 853 S.W.2d 543, 544-45 (Tex. Crim. App. 1993).
3 This rule also applies if the judge’s former law partner served as a lawyer on the case, but only if it was during the term that they practiced law together. If the former partner became involved only after he and the judge stopped practicing together, then the judge is not disqualified. He may, however, be subject to recusal if a reasonable person would question the judge’s impartiality.
4 The relationship must be within the third degree of affinity or consanguinity. In other words, the judge must be related by blood or marriage. The Government Code provides an explanation for calculating degrees of relationship and sets out explicitly which relatives are related within the third degree. See Tex. Govt. Code §573.023.
5 Barron v. State Atty. Gen., 108 S.W.3d 379, 382-83 (Tex. App.—Tyler 2003, no pet.).
6 Buckholts Indep. School Dist. v. Glaser, 632 S.W.2d 146, 148 (Tex. 1982).
7 Lee v. State, 555 S.W.2d 121, 124 (Tex. Crim. App. 1977).
8 Rogers v. Bradley, 909 S.W.2d 872, 879 (Tex. 1995) (Enoch, J., concurring), citing Sun Oil Co. v. Whitaker, 483 S.W.2d 808, 823-24 (Tex. 1972).
9  Tex. R. Civ. P. 18a(h).
10 Tex. R. Civ. P. 18b(2)(e). This rule also applies where the judge’s spouse or minor child still residing in the household has a financial interest rather than the judge personally.
11 Tex. R. Civ. P. 18b(3).
12 Tex. R. Civ. P. 18b(4)(d)(i).
13 Id.
14 Tex. R. Civ. P. 18b(4)(d)(ii).
15 Tex. R. Civ. P. 18b(c) & (f)(iii).
16 Tex. R. Evid. 605.
17 Sommers v. Concepcion, 20 S.W.3d 27, 42 (Tex. App.—Houston [14th Dist.] 2000, pet. denied).
18 Green v. State, 676 S.W.2d 359, 363 (Tex. Crim. App. 1984).
19 See Gonzalez v. State, 117 S.W.3d 831, 838 (Tex. Crim. App. 2003) (holding party seeking disqualification may not invite prejudice by unnecessarily calling counsel as witness).
20 Tex. R. Civ. P. 18b(1)(a).
21 Tex. R. Civ. P. 18b(2)(g). Note that a “close relative” here is only one related to the judge or his spouse within the first degree, such as parent or child (or that person’s spouse), rather than the third degree used in the rest of the rule.
22 Tex. R. Civ. P. 18b(2)(d).
23 Tex. R. Civ. P. 18b(2)(a) & (b).
24 Liteky v. United States, 510 U.S. 540, 550 (1994).
25 Id.
26 Kemp v. State, 846 S.W.2d 289, 305 (Tex. Crim. App. 1992).
27 Id.
28 Cheney v. U.S. Dist. Court for Dist. of Columbia, 541 U.S. 913, 914 (2004) (memorandum of Scalia, J.).
29 Liteky, 510 U.S. at 551.
30 Id.
31 Id. at 555.
32 Id. at 555-56.
33 Kemp, 846 S.W.2d at 306.
34 Id.
35 Arnold v. State, 853 S.W.2d 543, 544-45 (Tex. Crim. App. 1993).
36 Barron, 108 S.W.3d at 382.
37 Tex. R. Civ. P. 18a(a).
38 Id.
39 Sanchez v. State, 926 S.W.2d 391, 395 (Tex. App.—El Paso 1996, pet. ref’d) (holding trial court signing order granting substitution of counsel was not a substantive hearing that triggered 10-day requirement).
40 Tex. R. Civ. P. 18a(e).
41 Tex. R. Civ. P. 18a(c).
42 McClenan v. State, 661 S.W.2d 108, 110 (Tex. Crim. App. 1983).
43 DeLeon v. Aguilar, 127 S.W.3d 1, 5 (Tex. Crim. App. 2004).
44 Id.; see also Arnold, 853 S.W.2d at 544-45.
45 Tex. R. Civ. P. 18a(d).
46 Id.
47 Sanchez, 926 S.W.2d at 394.
48 Id.
49 Tex. R. Civ. P. 18a(f).
50 Id.