Opinion
01-23-00331-CV
06-27-2024
ELIZABETH THOMAS, JAMES ALLEN, ALLAN HAYE, ROBERT THOMAS, AND JAMES M. ANDERSEN, Appellants v. PCF PROPERTIES IN TX, LLC, Appellee
On Appeal from the 80th District Court Harris County, Texas Trial Court Case No. 2020-35780
The en banc court consists of Chief Justice Adams and Justices Kelly, Goodman, Landau, Hightower, Rivas-Molloy, Guerra, and Farris.
ORDER
PER CURIAM.
Appellants James Allen and Robert Thomas have filed a pro se motion to disqualify Justice Julie Countiss from consideration of this appeal. Appellants seek "constitutional disqualification" on the grounds of alleged bias, impartiality, and lack of fairness, citing federal law.
A disqualified judge has no power to act in a case. Freedom Commc'ns, Inc. v. Coronado, 372 S.W.3d 621, 624 (Tex. 2012). "[T]he disqualification of a judge is a jurisdictional issue that cannot be waived." Id.
"The grounds for disqualification of an appellate court justice or judge are determined by the Constitution and laws of Texas." Tex.R.App.P. 16.1. The Texas Constitution provides, in pertinent part:
No judge shall sit in any case wherein the judge may be interested, or where either of the parties may be connected with the judge, either by affinity or consanguinity, within such a degree as may be prescribed by law, or when the judge shall have been counsel in the case. . . .Tex. Const. art. V, § 11.
"Texas courts have consistently held these three grounds [interest, connection, and counsel] to be the mandatory, inclusive, and exclusive bases for disqualification." Tesco Am., Inc. v. Strong Indus., Inc., 221 S.W.3d 550, 553 (Tex. 2006) (internal quotations omitted).
In In re Wilhite, a majority of this Court, sitting en banc, noted that because federal cases discussing recusal and disqualification often use the terms interchangeably, those cases are of limited guidance in interpreting the Texas rule for disqualification, which does not include an alleged appearance of impropriety as a basis for disqualification. 298 S.W.3d 754, 760-61 (Tex. App.-Houston [1st Dist.] 2009, orig. proceeding [mand. denied]).
Here, Justice Countiss considered appellants' motion, found no reason to disqualify herself, and certified the matter to the entire Court. See Tex. Const. art. V, § 11; Tex.R.App.P. 16.3(b).
Motions to disqualify are addressed following the same procedure as motions to recuse. See Tesco Am., Inc. v. Strong Indus., Inc., 221 S.W.3d 550, 563 (Tex. 2006) (Hecht, J., dissenting) ("[A]n appellate court should follow the same procedure in determining disqualification as in determining recusal."); see Tex. R. App. P. 16.3 ("Procedure for Recusal").
The remaining Justices, sitting en banc without the participation of Justice Countiss, then considered the motion. See Tex. R. App. P. 16.3(b) ("The challenged justice . . . must not sit with the remainder of the court to consider the motion as to him or her."). A majority of the Justices voted to deny the motion to disqualify Justice Countiss. See Tex. Const. art. V, § 11; Tex.R.App.P. 16.3(b); McCullough v. Kitzman, 50 S.W.3d 87, 88 (Tex. App.-Waco 2001, pet. denied).
Accordingly, the motion to disqualify Justice Countiss from consideration of this appeal is denied in all things.
It is so ORDERED.