F.S. New Products, Inc. v. Strong Industries, Inc. , 2003 Tex. App. LEXIS 9882 ( 2003 )

TERRY JENNINGS, Justice,

dissenting from en banc order on motion to disqualify.

Because the en banc Court unnecessarily denies appellant, Tesco American, Inc. d/b/a Tesco/Williamsen (Tesco), relief that Tesco never requested and erroneously adopts a procedure for the disqualification of appellate justices, I respectfully dissent.

In its “Motion to Disqualify,” Tesco requests the following relief:

Tesco respectfully moves that Justice Higley¹ remove herself from this case. Moreover, given the collegial nature of the Court and the indisputable fact that the other justices on the panel were influenced by the authoring judge, in order to take a cautious approach to avoid any appearance of impropriety and to promote public confidence in the judicial system, Tesco moves the Court to reassign the case to a new panel for re-argument and disposition.

(Emphasis added.) Tesco, in no uncertain terms, has requested two actions: (1) for Justice Higley, individually, to “remove herself from this case,” and, without precedent, (2) for the entire Court “to reassign the case to a new panel.”

Recusal

I do not agree with the en banc majority’s conclusion that Tesco’s motion effectively seeks to recuse the other panel members, Chief Justice Radack and Justice Alcala. Tesco simply has not asked for the recusal of Chief Justice Radack² and Justice Alcala.³ In fact, Tesco, in its “Motion to Disqualify,” in no way argues for their recusal and does not even brief the issue.

It is well-settled that, if a party does not comply with the mandatory requirements of a recusal rule, it waives its right to complain of a judge’s refusal to recuse herself. See Gill v. Dep’t of Crim. Justice, 3 S.W.3d 576, 579 (Tex.App.-Houston [1st Dist.] 1999, no pet.). Here, Texas Rule of Appellate Procedure 16.3(a) requires that a party seeking to recuse a justice “promptly” file a motion to recuse a justice “after the party has reason to believe that the justice ... should not participate in deciding the case.” Tex.R.App. P. 16.3(a) (emphasis added). Both Chief Justice Radack and Justice Alcala have already participated in deciding the case. Accordingly, Tesco, in failing to timely file a motion to recuse, has waived any issue in regard to their recusal.

No matter what Tesco’s reason, the bottom line is that it has not asked Chief Justice Radack and Justice Alcala to re-cuse themselves. This Court should not deny Tesco relief that it never requested. If a majority of this Court wants to deny Tesco’s unprecedented motion to “reassign the case to a new panel,” it should do so in a succinct order.

Disqualification

In its motion, Tesco contends that Justice Higley is constitutionally disqualified⁴ to participate in the case. See Tex. Const. art. Y, § 11 (“No judge shall sit in any ease ... when he shall have been counsel in the case.”).

Although it cites to the comment to Rule 16 that “[t]he procedure for disqualification [of appellate justices] is not specified,” the en banc majority holds that, “as a matter of first impression,” “the procedure prescribed by Rule 16.3 for the recusal of appellate justices,” nevertheless, “should be followed in determining the disqualification of a challenged justice.” In support of its holding, the en banc majority relies on McCullough v. Kitzman, 50 S.W.3d 87 (Tex.App.-Waco 2001, pet. denied) and Sears v. Olivarez, 28 S.W.3d 611 (Tex. App.-Corpus Christi 2000, no pet.). However, neither the McCullough court nor the Sears court articulated any basis for their holdings that a court should follow “the same procedure to address both recu-sal and disqualification issues.” In fact, McCullough merely cites Sears. Likewise, here, the en banc majority merely follows McCullough and Sears without stating why.

Neither this Court, the McCullough court, nor the Sears court, seem to recognize the very distinct possibility that the Texas Supreme Court, in drafting Rule 16, may have consciously chosen not to provide appellate courts with “the same procedure to address both recusal and disqualification issues.”

Constitutional disqualification and re-cusal are very different creatures. As noted by the Supreme Court:

Judges may be removed from a particular case either because they are constitutionally disqualified, Tex. Const, art. Y, § 11, because they are subject to a statutory strike, Tex. Gov’t.Code § 74.053(d), or because they are recused under rules promulgated by this Court. Tex.R. Civ. P. 18a, 18b; Tex.R.App. P. 16. The grounds and procedures for each type of removal are fundamentally different. See generally Kilgarlin & Bruch, Disqualification and Recusal of Judges, 17 St. Maey’s L.J. 599 (1986).

In re Union Pac. Res. Co., 969 S.W.2d 427, 428 (Tex.1998) (emphasis added). Accordingly, “the requirements and procedures governing disqualification and recusal are entirely separate and distinct.” Kilgarlin & Bruch, 17 St. MaRy’s L.J. at 601 (emphasis added).

A constitutional disqualification deprives a judge of the authority to act; “any orders or judgments rendered by a judge who is constitutionally disqualified are void and without effect.” In re Union Pac. Res. Co., 969 S.W.2d at 428. Thus, the Texas Constitution provides that, “[w]hen the ... Court of Appeals, or any member [thereof] shall be thus disqualified to hear and determine any cause or cases in said court, the same shall be certified to the Governor of the State, who shall immediately commission the requisite number of persons learned in the law for the ... determination of such cases or causes.” Tex. Const, art. V, § 11. If, on the other hand, “a judge continues to sit in violation of a constitutional proscription,” the objecting party is “entitled to mandamus relief’ to “compel the judge’s mandatory disqualification without a showing that the relator lacks an adequate remedy by appeal.” In re Union Pac. Res. Co., 969 S.W.2d at 428 (emphasis added).

In contrast, the erroneous denial of a recusal motion does not void or nullify a judge’s subsequent acts. Id. While a judgment rendered in such circumstances may be reversed on appeal, it is not fundamental error and, as noted above, can be waived if not timely raised by proper motion. Id. If a higher court determines that a recusal motion is erroneously denied, it can reverse the lower court’s judgment and remand for new proceedings before a different judge. Id. Such a procedure is “no different than the correction of any ... court error through the normal appellate process.” Id.

Accordingly, it has been stated, with some authority, that, “[bjecause constitutional disqualification cannot be waived and can be raised at any time, the Appellate Rules do not prescribe a procedure for raising disqualification.” 10 William V. DoRSANEO III, ET AL„ TEXAS LITIGATION Guide § 150.02[7][h] (2008).

Here, Tesco’s motion is made directly to Justice Higley, individually, and not to this Court. The reason that such a motion is made directly to a purportedly disqualified judge is because, as noted above, a constitutional disqualification deprives a judge of the authority to act. See In re Union Pac. Res. Co., 969 S.W.2d at 428. If a judge erroneously continues to sit in violation of a constitutional proscription, the aggrieved party is “entitled to mandamus relief’ to “compel the judge’s mandatory disqualification without a showing that the relator lacks an adequate remedy by appeal.” Id.

Because the Texas Constitution provides the procedure for an appellate justice to remove herself from a case on the basis of disqualification and because a party is “entitled to mandamus relief’’ when a justice continues to sit in the case in violation of a constitutional proscription, the en banc majority’s decision to create such a procedure identical to the recusal procedure in Rule 16.3 is in serious error.

Conclusion

In its opinion, the en banc majority holds that Tesco’s “motion to recuse is without merit and groundless.” I would agree, except that Tesco never made a motion to recuse any member of this Court from deciding this appeal. As noted above, if a majority of this Court wants to deny Tesco’s unprecedented motion to “reassign the case to a new panel,” it should do so simply in a succinct order.⁵

The en banc majority further holds that “Justice Higley is not constitutionally disqualified from deciding the appeal in this case.” The Supreme Court may ultimately come to this conclusion in a denial of a writ of mandamus.⁶ However, because an objecting party is “entitled to mandamus relief’ to compel a judge’s mandatory disqualification when the judge continues to sit in violation of a constitutional proscription, this is not the en banc Court’s decision to make.

1 . The Honorable Laura Carter Higley, Justice, Court of Appeals, First District of Texas at Houston.

2 . The Honorable Sherry Radack, Chief Justice, Court of Appeals, First District of Texas at Houston.

3 .The Honorable Elsa Alcala, Justice, Court of Appeals, First District of Texas at Houston.

4 . Tesco notes that the “constitutional disqualification rule ... does not necessitate showing any improper conduct, and no claim of such conduct is made or implied by this motion.” Tesco did not even file its motion to disqualify Justice Higley until 15 days after the panel issued its opinion.

5 . If Justice Higley is constitutionally disqualified, as argued by Tesco, then its request that the Court resubmit the case to a new panel is without merit because, as noted above, the Texas Constitution provides the procedure to be utilized in regard to disqualified justices. See Tex Const, art. V, § 11.

6 . However, in regard to constitutional disqualification, it has been noted that, "[i]t matters not if the judge, while an attorney, had nothing to do with the civil litigation pending before him, if he was a member of a lawfirm that gave counsel as to the pending litigation.” Kilgarlin & Bruch, 17 St. Mary’s L.J. at 613 (citing State ex rel Routh v. Burks, 82 Tex. 584, 18 S.W. 662, 662-63 (1891)). In Burks, the Supreme Court held that a "judge properly held himself disqualified” to sit in a lawsuit in which the State sought to dissolve a corporation which his former law firm had assisted in organizing. Id. at 663