Bennie Fuelberg v. State , 2013 Tex. App. LEXIS 10739 ( 2013 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-11-00317-CR
Bennie Fuelberg, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF BLANCO COUNTY, 424TH JUDICIAL DISTRICT
NO. CR01015, HONORABLE DANIEL H. MILLS, JUDGE PRESIDING
OPINION
A jury found appellant Bennie Fuelberg guilty of misapplication of fiduciary
property, theft, and money laundering. See Tex. Penal Code §§ 31.03, 32.45, 34.02. The jury
assessed punishment at ten years’ imprisonment for each offense, but recommended that the
sentences be suspended and Fuelberg be placed on community supervision. In seven appellate
issues, Fuelberg asserts that (1) the trial judge, the Honorable Daniel H. Mills, was disqualified from
the case; (2) the assigned judge abused his discretion in failing to recuse Judge Mills; (3) the trial
court abused its discretion in admitting testimony of two of the State’s witnesses; and (4) the trial
court erred in its determination of restitution. We will abate and remand this appeal.
BACKGROUND
The Pedernales Electric Cooperative (PEC) is a member-owned utility that provides
electrical service to twenty-four counties in Central Texas. See Tex. Util. Code §§ 161.001–.254
(describing formation and operation of utility cooperatives). Any resident in the PEC’s service area
is required to join the PEC in order to receive electric service, and as of 2008 the PEC had over
225,000 members. As a utility cooperative, the PEC operates on a non-profit basis, meaning that
the rates, fees, and other charges paid by PEC members can be spent only on reasonable business
expenses, and any excess revenue must be refunded to members. See id. § 161.059.
Fuelberg was the general manager of the PEC from 1976 until his retirement in
February of 2008, and was given broad authority to oversee its day-to-day operations. The State
alleged that between November 1996 and March 2007, Fuelberg conspired with Walter Demond
to funnel over $200,000 in PEC funds through Demond’s law firm to Fuelberg’s brother and the
son of a former PEC board member. The State charged Fuelberg and Demond with first-degree
misapplication of fiduciary property and theft and second-degree money laundering. See Tex. Penal
Code §§ 31.03, 32.45, 34.02.
Prior to trial, Fuelberg and Demond filed motions to disqualify or, alternatively,
recuse Judge Mills from their respective cases. The motions asserted that as a PEC member,
Judge Mills had a financial interest in the outcome of the trial and was a putative victim of the
alleged offenses. Following a brief discussion with the parties, Judge Mills declined to voluntarily
recuse himself and referred the motions to the presiding judge, who assigned the motions to the
Honorable Bert Richardson. See Tex. R. Civ. P. 18a (prescribing procedure for resolving motions
to disqualify and recuse).1 Judge Richardson conducted a hearing after which he denied Fuelberg’s
1
Although Fuelberg and Demond were tried separately, they filed identical motions to
disqualify and recuse Judge Mills, and Judge Richardson conducted a single hearing for both
Fuelberg’s and Demond’s motions.
2
and Demond’s motions. Fuelberg and Demond filed petitions for writ of mandamus, seeking orders
from this Court directing Judge Richardson to reverse his rulings. This Court denied the mandamus
petitions. See In re Fuelberg, No. 03-10-00027-CV, 2010 Tex. App. LEXIS 1256, at *2–4 (Tex.
App.—Austin Feb. 19, 2010, orig. proceeding [leave denied]) (mem. op.).
After a nine-day trial, the jury found Fuelberg guilty of third-degree misapplication
of fiduciary property, theft, and money-laundering, indicating that the value of the property misapplied,
stolen, and laundered was between $20,000 and $100,000. See Tex. Penal Code §§ 31.03(e)(5),
32.45(c)(5), 34.02(e)(2). Following a punishment hearing, the jury assessed punishment at ten
years’ imprisonment for each offense, but recommended that the sentence be suspended and
Fuelberg be placed on community supervision. The trial court rendered a judgment consistent with
the jury’s verdict, and also ordered Fuelberg to pay $126,000 in restitution. This appeal followed.
DISCUSSION
Fuelberg raises seven issues on appeal, which we group into the following four
complaints. First, Fuelberg asserts that Judge Mills was disqualified from presiding over his trial,
and therefore his trial and conviction are void. Second, Fuelberg claims that Judge Richardson
abused his discretion in failing to recuse Judge Mills from Fuelberg’s trial. Third, Fuelberg argues
that the trial court abused its discretion in admitting the testimony of two witnesses because their
testimonies were hearsay and violated the confrontation clause. Finally, Fuelberg claims that the
trial court erred in ordering restitution above the amount reflected in the jury’s verdict. We will
address Fuelberg’s first two appellate issues in turn and need not reach his third and fourth issues,
as explained below.
3
Disqualification
In his first issue on appeal, Fuelberg asserts that Judge Mills was disqualified from
presiding over his trial. See Tex. Const. art. V, § 11. Specifically, Fuelberg claims that Judge Mills
was disqualified because, as a PEC member, he (1) had a pecuniary interest in the subject matter in
controversy and (2) had a personal interest in the case because he was putative victim of the alleged
offenses. See id.; Tex. R. Civ. P. 18b(a)(1) (defining disqualifying financial interest);2 Tex. Code
Crim. Proc. art. 30.01 (defining “injured party” as disqualifying interest). According to Fuelberg,
Judge Mills lacked authority to hear this case, and thus the underlying proceedings are void.
See Tesco Am., Inc. v. Strong Indus., Inc., 221 S.W.3d 550, 555 (Tex. 2006) (noting that if trial judge
is disqualified, any orders or judgments issued by court are “void and without effect”).
“Since Texas became a state in 1845, judicial disqualification has always been a
matter of constitutional dimension.” Tesco Am., Inc., 221 S.W.3d at 551. The Texas Constitution
provides that “[n]o judge shall sit in any case wherein the judge may be interested . . . .” Tex. Const.
art. V, § 11. Rule 18b(a) of the Rules of Civil Procedure and article 30.01 of the Code of Criminal
Procedure clarify when a judge is disqualified, but these statutes “expound rather than expand the
Constitution.” Tesco Am., Inc., 221 S.W.3d at 553. Therefore, regardless of whether disqualification
is discussed in terms of Rule 18b(a) or article 30.01, disqualification is a constitutional issue in this
2
Although this is a criminal case, it is well established that the standards for disqualification
and recusal of a trial judge provided for in the Rules of Civil Procedure are applicable in the criminal
context “absent an explicit or implicit legislative intent indicating otherwise.” Gaal v. State, 332
S.W.3d 448, 452–53 (Tex. Crim. App. 2011) (applying rule 18b of Rules of Civil Procedure to
disqualification and recusal issue in criminal case) (internal quotations omitted). We cite to the
current versions of the Rules of Civil Procedure for convenience because there have been no
intervening amendments that are material to our disposition of this appeal.
4
case. See id.; see also Kilgarlin & Bruch, Disqualification and Recusal of Judges, 17 St. Mary’s L.J.
599, 602 (1986) (discussing “constitutional statutory provisions” that embody article V, section 11
of Texas Constitution).
A disqualified judge may perform a ministerial act, but “is prohibited from performing
any and all acts that call for the exercise of judicial discretion.” Koll v. State, 157 S.W.2d 377, 379
(Tex. Crim. App. 1941) (concluding disqualified judge’s order transferring venue was void). Thus
any discretionary orders or judgments by a disqualified judge are void. See Whitehead v. State,
273 S.W.3d 285, 289 (Tex. Crim. App. 2008) (noting that if trial judge is disqualified under article
30.01 of Code of Criminal Procedure, conviction is nullity). Therefore, if Judge Mills was disqualified
from Fuelberg’s trial, Fuelberg’s judgment of conviction and all of Judge Mills’s discretionary
rulings would be void and this case would be remanded for new proceedings.
Standard of review
Whether a judge is disqualified is a question of law that we generally review de novo.
However, the State asserts that this Court’s prior mandamus opinion—in which we rejected
Fuelberg’s disqualification and recusal issues—is the law of the case. See In re Fuelberg, 2010 Tex.
App. LEXIS 1256, at *2–4; see also Texas Parks & Wildlife Dep’t v. Dearing, 240 S.W.3d 330, 338
(Tex. App.—Austin 2007, pet. denied) (explaining law-of-the-case doctrine). “Under the law-of-
the-case doctrine, a court of appeals is ordinarily bound by its initial decision on a question of law
if there is a subsequent appeal in the same case.” Dearing, 240 S.W.3d at 348. If a prior legal
conclusion is the law of the case, that conclusion will not be disturbed unless it was “clearly
erroneous.” Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716 (Tex. 2003).
5
The law-of-the-case doctrine is prudential rather than statutory, and the decision
to revisit a previous holding is generally left to the discretion of the court under the particular
circumstances of a given case. City of Houston v. Jackson, 192 S.W.3d 764, 769 (Tex. 2006).
When a court denies mandamus without any comment on the merits, the mandamus is not the law
of the case. Perry Homes v. Cull, 258 S.W.3d 580, 586 (Tex. 2008). Some courts have held that
the law-of-the-case doctrine may apply when the court’s denial of mandamus addresses the merits.
See, e.g., In re B.G.D., 351 S.W.3d 131, 141 (Tex. App.—Fort Worth 2011, no pet.). This Court has
never extended the doctrine to a mandamus ruling. Without foreclosing the possibility of our doing
so in the future, for purposes of this appeal we will not treat our previous denial of mandamus as
law of the case, and we will address the disqualification issue de novo.
Pecuniary interest
Fuelberg asserts that Judge Mills was disqualified from this case, in part, because
he had a pecuniary interest in the subject-matter in controversy. See Tex. R. Civ. P. 18b(a)(2).
Specifically, Fuelberg claims that as a PEC Member, Judge Mills stood to potentially gain from
any restitution he ordered. This issue was the primary focus of Fuelberg’s disqualification motion,
Judge Richardson’s findings of fact and conclusions of law, and our opinion denying mandamus.
See In re Fuelberg, 2010 Tex. App. LEXIS 1256, at *2–4. Furthermore, it presents an issue of first
impression in this Court: Does a judge’s participation in a member-owned utility cooperative
disqualify him from hearing cases that might affect the cooperative financially? Under the facts of
this case, we answer no.
6
“It is a settled principle of law that the interest which disqualifies a judge is that
interest, however small, which rests upon a direct pecuniary or personal interest in the result of the
case.” Cameron v. Greenhill, 582 S.W.2d 775, 776 (Tex. 1979). Thus, if a judge has a direct
financial interest in the outcome of the case, such as stock ownership in a company who is a party
to litigation, the judge is disqualified. See Williams v. City Nat’l Bank of Quanah, 27 S.W. 147, 148
(Tex. Civ. App.—Fort Worth 1894, no writ) (concluding that ten shares in bank that was party to
suit disqualified trial judge).
However, a judge’s interest which is “merely indirect, incidental, remote, contingent,
or possible” or based on his status as “a resident or taxpayer” in which he “will be no more affected
by any decision which may be made in the case than every other citizen of the county who is a
taxpayer” is not disqualifying. Elliot v. Scott, 25 S.W.2d 150, 152 (Tex. 1930). For this reason, a
judge is not disqualified from hearing a case that may affect a public utility or regulated utility of
which he is a customer. See Tex. R. Civ. P. 18b(d)(4)(E) (“[A]n interest as a taxpayer or utility
ratepayer, or any similar interest, is not a ‘financial interest’ unless the outcome of the proceeding
could substantially affect the liability of the judge . . . more than other judges.”) (emphasis added);
Hidalgo Cnty. Water Imp. Dist. No. 2 v. Blalock, 301 S.W.2d 593, 596 (Tex. 1957); City of Houston
v. Houston Lighting & Power Co., 530 S.W.2d 866, 868 (Tex. Civ. App.—Houston [14th Dist.]
1975, writ ref’d n.r.e.). Thus, it is the nature of the judge’s financial interest, rather than its potential
value, that determines whether the interest is disqualifying.3
3
To the extent our prior mandamus opinion could be read to conclude that Judge Mills’s
financial interest was not disqualifying because it was de minimis, that conclusion would be
incorrect. See In re Fuelberg, No. 03-10-00027-CV, 2010 Tex. App. LEXIS 1256, at *2–4 (Tex.
App.—Austin Feb. 19, 2010, orig. proceeding [leave denied]) (mem. op.).
7
By statute, an electric cooperative like the PEC “shall operate without profit to its
members.” See Tex. Util. Code § 161.059(a) (emphasis added). The “rates, fees, rents, and other
charges” for a co-op’s services must be used to first pay for prudent business expenses, including
the repayment of loans, and then to create reserves. Id. § 161.059(b)–(c). A utility cooperative
“must periodically return revenues not required for those purposes to its members in proportion to
that amount of business done with each member”—in the form of a cash payment, abatement of
charges, or a general rate reduction—effectively reimbursing members for charges that they should
not have paid. See id. § 161.059(d) (emphasis added).
This statutory framework is consistent with the testimony of the PEC’s Chief Financial
Officer, Michael Vollmer, at the disqualification and recusal hearing concerning how the PEC
calculates reimbursements to its members. Vollmer explained that excess funds, which he called
“margins,” are calculated annually and then allocated to each member’s “capital credit account”
based on the “relative amount of electricity that [the member] purchased during the previous
year.” From there, the PEC board of directors can “distribute” portions of each member’s capital
credit account to the member. Vollmer emphasized that margins should not be called profits and
distributions should not be called dividends, indicating that they are distinguishable, at least from
an accounting standpoint.
At the time of the recusal hearing, Judge Mills had approximately $1,200 in his PEC
capital credit account. Judge Mills did not receive a distribution from this account until 2007—27
years after he first became a PEC member—and that distribution was for approximately $18.
Vollmer’s testimony indicated that the PEC would be making more distributions in the near future.
8
Furthermore, Vollmer testified that any restitution that was ordered in this case could increase the
PEC’s margin, thereby increasing the amount allocated to each member’s capital credit account for
that year, which in turn could lead to a larger distribution in the future.
Fuelberg asserts that the potential distribution that Judge Mills could receive
from ordering restitution is a direct, disqualifying pecuniary interest. Fuelberg relies primarily on
Pahl v. Whitt, 304 S.W.2d 250, 252 (Tex. Civ. App.—El Paso 1957, no writ), which appears to
be the only Texas case that directly addresses whether a judge’s membership in a utility cooperative
is disqualifying. The court in Pahl concluded that the interest was disqualifying because “if a
Cooperative makes money, its members may receive dividends in the form of money or lowered
rates for electricity, thus such members are in very much the same situation as stockholders in a
corporation.” Id. To the extent Pahl can be read to mean that distributions by all utility cooperatives
are like dividends from a private corporation, we respectfully disagree. See 304 S.W.2d at 252.
Each case must be reviewed on its own facts with regard to the character of the cooperative’s
distributions to its members.
Given the statutory framework and real-world application at PEC, as outlined above,
the PEC’s distributions to its members—whether in the form of cash distributions or reductions in
future rates—function as a refund to members for previous overcharges. PEC members’ capital
credit accounts operate as an accounting tool to keep track of these overcharges and in no way equate
to an ownership interest in the PEC. Therefore, the distributions from the capital credit accounts are
more akin to a tax rebate or rate reduction than a dividend paid based on a company’s profits. This
interpretation is consistent with section 161.059(a) of the Utility Code, which specifically requires
9
that an electric cooperative must operate “without profit to its members.” Given that Judge Mills
automatically became a member of the PEC when he purchased his home and electrical service, his
interest in obtaining lower electricity rates from the PEC in these ways is indistinguishable from
that of a judge who is a customer of a public or regulated utility.4 See Tex. R. Civ. P. 18b(d)(4)(E);
Hidalgo Cnty., 301 S.W.2d at 596; City of Houston, 530 S.W.2d at 868.
The record indicates that Judge Mills has no other financial interest in the PEC.
Although PEC members are technically owners, their ownership is nontransferable—even to
subsequent property owners—and terminates upon their withdrawal or death. Vollmer testified that
if the PEC dissolved, members could be entitled to the amounts in their capital credit accounts,
but there is no indication that they would be entitled to any other distribution. Therefore, the only
financial interest that Judge Mills has in the PEC is in the rates that he pays, or should have paid, for
utility service, which is indistinguishable from the interest of a public utility customer. See Tex. R.
Civ. P. 18b(d)(4)(E).
Finally, as the State correctly notes, this is a criminal proceeding, and neither the PEC
nor its members are actually parties to this case. Therefore, Judge Mills’s potential financial interest
4
Fuelberg also asserts that Judge Mills’s interest in the PEC is equivalent to that of a
policyholder of a mutual insurance company, which has been held to be disqualifying. See Sovereign
Camp v. Hale, 120 S.W.539, 540 (Tex. 1909); New York Life Ins. Co. v. Sides, 46 Tex. Civ. App.
246, 247 (Tex. 1907). However, the judges in Hale and Sides had a pecuniary interest in those cases
not because they technically owned a portion of the insurance company, but because any financial
harm to the insurance company would have endangered the pay-outs of their individual life insurance
policies. See Sovereign Camp, 120 S.W. at 540; New York Life Ins. Co., 46 Tex. Civ. App. at 247;
see also Tex. R. Civ. P. 18b(d)(4)(C) (“[T]he proprietary interest of a policyholder in a mutual
insurance company . . . is a ‘financial interest’ in the organization only if the outcome of the
proceeding could substantially affect the value of the interest.”). Thus, the judges’ pecuniary interest
in the mutual insurance cases are distinguishable from Judge Mills’s interest in this case because
Judge Mills does not have a distinct future payout that could be endangered by his decision.
10
is even more attenuated than it would be in a civil case because he stood to gain only if Fuelberg was
convicted; Judge Mills, in his discretion, ordered Fuelberg to pay restitution; the PEC increased
the allocations to its members’ capital credit accounts based on that restitution; and then the PEC
Board, in its discretion, approved a distribution to its members from the increase in their capital
credit accounts. We have not found any Texas cases that address whether a trial judge’s potential
benefit from criminal restitution can be disqualifying, and the federal cases on the issue are split.5
See United States v. Rogers, 119 F.3d 1377, 1383 (9th Cir. 1997) (noting circuit split).
Furthermore, those federal courts which have found that this type of interest can be
disqualifying noted that only a judge with a “substantial interest” in the corporate victim of the crime
should disqualify himself. See United States v. Nobel, 696 F.2d 231, 234–35 (3d Cir. 1982). The
court in Nobel explained that a judge who owned stock in the “corporate victim of the crimes does
not have a ‘financial interest in the subject matter in controversy,’” but for sake of appearance may
nonetheless be required to be disqualified. See id. Given that the Texas rules governing financial
interests do not require disqualification for the sake of appearances, the federal court’s reasoning in
Nobel appears to be more in line with Texas’s recusal standards, and thus has little if any
applicability to disqualification under Texas law. See supra n.5. In addition, although the court in
Nobel did not define what “substantial interest” means, there is nothing in the record that could
5
The federal rule for disqualification “includes disqualification for the appearance of
impropriety,” which is addressed in the Texas rules for recusal. In re Wilhite, 298 S.W.3d 754,
760–61 (Tex. App.—Houston [1st Dist.] 2009, orig. proceeding [mand. denied]). “Because federal
cases discussing recusal and disqualification often use the terms interchangeably, those cases are of
limited guidance in interpreting Texas’s rule for disqualification that does not include the appearance
of impropriety as a basis for disqualification.” Id.
11
arguably support a claim that Judge Mills has a substantial financial interest in either the PEC or the
outcome of this case. See 696 F.2d at 234–35 (concluding that judge’s impartiality might reasonably
be questioned when he owned between $10,000 and $15,000 in victim’s corporate stock).
Therefore, we conclude that Judge Mills did not have a disqualifying pecuniary
interest in the subject matter of this case. Judge Richardson did not err in denying Fuelberg’s motion
to disqualify Judge Mills on this basis. We overrule Fuelberg’s first appellate issue with respect to
Judge Mills’s pecuniary interest in this case.
Injured Party
Fuelberg also asserts that Judge Mills was disqualified from this case as a putative
victim of the offenses alleged. Specifically, Fuelberg claims that as a PEC member, Judge Mills was
a “party injured” within the meaning of article 30.01 of the Code of Criminal Procedure. Therefore,
according to Fuelberg, Judge Mills has a disqualifying personal interest in the subject matter at issue.
Article 30.01 states that “[n]o judge or justice of the peace shall sit in any case where
he may be the party injured . . . .” The statute does not define who qualifies as “the injured party”
in a criminal case, although it would presumably always include the victim named in the indictment.
See Ex parte Ambrose, 24 S.W. 291, 291–92 (Tex. Crim. App. 1893) (concluding that county judge
was disqualified from presiding over trial for assault where he was victim of alleged assault); but see
Lane v. State, 634 S.W.2d 65, 66 (Tex. App.—Fort Worth 1982, no pet.) (concluding that “judge
presiding at a trial in which perjury is committed does not thereby become an ‘injured party’” in
subsequent perjury trial). In this case, however, the PEC—not the PEC members generally nor Judge
Mills specifically—is the victim named in the indictment.
12
Whether the judge was named as the victim in the indictment, however, does not
necessarily end the inquiry. The court of criminal appeals recently addressed a similar case in which
the trial judge was not named in the indictment but was nonetheless involved in the underlying
offense. See Whitehead v. State, 273 S.W.3d 285, 286 (Tex. Crim. App. 2008). In that case, the
judge was one of the people threatened in a letter written by the defendant that formed the basis for
the State’s motion to revoke the defendant’s community supervision. Id. The court of criminal
appeals rejected the intermediate court’s conclusion that the judge was not an injured party merely
because he was not named in the indictment, and held that he “may be the party injured, . . . if the
evidence shows that he was among the defendant’s victims in the criminal transaction or episode at
issue, such that a reasonable person would harbor doubts as to the judge’s impartiality.”6 Id. at 289
(internal quotations omitted). The court further held that a reasonable person would harbor doubts
about the judge’s impartiality in that case, and therefore the judge was disqualified. See id.
Given that Judge Mills is not the victim named in the indictment, he is an injured
party, if at all, because he was a victim in the criminal transaction or episode at issue such that a
reasonable person would doubt his impartiality. See id. Judge Richardson did not make findings
6
The defendant in Whitehead v. State did not file a motion to recuse the trial judge, and
thus the court of criminal appeals considered only whether the trial judge was disqualified. See
273 S.W.3d 285, 289 (Tex. Crim. App. 2008). Given that the rationale and standard established in
Whitehead are identical to the rationale and standard for recusal under rule 18b(b)(1) of the Rules
of Civil Procedure, it is possible that the interest addressed in Whitehead could more aptly be
resolved under recusal law. See id. (“We have no doubt that [the trial judge’s] integrity is of the
highest and that he would have recused himself had a motion for recusal been filed.”). Nevertheless,
the court determined that the interest was disqualifying under article 30.01 of the Code of Criminal
Procedure, and we are bound to conform our opinions to those of the court of criminal appeals. See
State v. DeLay, 208 S.W.3d 603, 607 (Tex. App.—Austin 2006).
13
of fact or conclusions of law as to whether Judge Mills was an injured party within the meaning of
article 30.01 or whether a reasonable person would doubt his impartiality.
As we will discuss below, we are abating this appeal and remanding this cause for
a new hearing on the issue of whether Judge Mills should have been recused under rule 18b(b)(1)
of the Rules of Civil Procedure. The objective reasonable-person standard for disqualification
established in Whitehead is identical to the objective reasonable-person standard for recusal under
rule 18b(b)(1). Compare Whitehead, 273 S.W.3d at 286, with Ex parte Ellis, 275 S.W.3d 109,
115–17 (Tex. App.—Austin 2008, no pet.) (describing objective reasonable-person standard for
recusal under rule 18b(b)(1)). Therefore, we will also abate this appeal and remand this cause with
instructions to determine whether Judge Mills is disqualified as an injured party under Whitehead.
See 273 S.W.3d at 286; see also Gamez v. State, 644 S.W.2d 879, 880–81 (Tex. App.—San Antonio
1982, pet. ref’d) (abating case and remanding for factual determination of whether trial judge was
disqualified under article 30.01).
Recusal
In his second issue on appeal, Fuelberg asserts that Judge Richardson erred in denying
his motion to recuse Judge Mills. Specifically, Fuelberg argues that Judge Mills should have been
recused because, given his financial interest in the PEC and his status as a victim of the offenses
alleged, his “impartiality might reasonably be questioned.”7 See Tex. R. Civ. P. 18b(b)(1). Although
7
Fuelberg also asserts that Judge Mills should have been recused because he had “a financial
interest in the subject matter in controversy.” See Tex. R. Civ. P. 18b(b)(6). However, Fuelberg did
not raise this argument in his amended motion to recuse Judge Mills, nor did he assert it as a separate
ground for recusal at the hearing before Judge Richardson. Therefore, Fuelberg has not preserved
this issue for appeal. See Blackwell v. Humble, 241 S.W.3d 707, 713 (Tex. App.—Austin 2007,
14
these complaints mirror the arguments for disqualification discussed above, recusal is concerned not
only with actual personal or pecuniary interests, but also the appearance of impartiality when all
factors are reviewed as a whole. See id.; Rogers v. Bradley, 909 S.W.2d 872, 873 (Tex. 1995)
(“Declaration of Recusal” by Gammage, J.) (noting that issue is one of perception). “[B]eyond the
demand that a judge be impartial is the requirement that judge appear to be impartial so that no
doubts or suspicions exist as to the fairness or integrity of the court.” Sears v. Olivarez, 28 S.W.3d
611, 613–14 (Tex. App.—Corpus Christi 2000, no pet.). Thus, according to Fuelberg, even if Judge
Mills’s alleged interests in this case do not rise to the level of constitutional disqualification, those
interests nevertheless cause his impartiality to be reasonably questioned.
In determining whether recusal is required, “the proper inquiry is whether a
reasonable member of the public at large, knowing all the facts in the public domain concerning the
judge and the case, would have a reasonable doubt that the judge is actually impartial.” Ex parte
Ellis, 275 S.W.3d at 115–17 (internal quotations omitted). Thus, unlike the subjective issue of
whether Judge Mills has a personal or pecuniary interest in this case, recusal is determined from an
objective standard, and asks whether a reasonable person would doubt that Judge Mills could remain
impartial. Id. As discussed above, we will not treat our previous mandamus opinion as law of the
case with respect to recusal. Therefore, we review Judge Richardson’s ruling on Fuelberg’s recusal
motion for an abuse of discretion. Wesbrook v. State, 29 S.W.3d 103, 120 (Tex. Crim. App. 2000).
Judge Richardson issued an order denying Fuelberg’s disqualification and recusal
motions, in which he adopted the findings of fact and conclusions of law he previously announced
no pet.) (noting that party who fails to timely raise grounds for recusal waives right to complain
about judge’s failure to recuse).
15
during the disqualification and recusal hearing. At the hearing, Judge Richardson mostly focused
on the motion to disqualify and made only the following findings of fact and conclusions of law with
respect to recusal:
The recusal issue is something completely different. They argue the
recusal issue under the Code of Judicial Conduct and that Judge Mills
could not be fair and impartial. And the only thing I have to rely on
at this point is as to Cannon [sic] Four, which states the following:
“A judge shall conduct all of the judge’s extra-judicial activities so
that they do not cast reasonable doubt on the judge’s capacity to act
impartially as a judge or interfere with the proper performance of
judicial duty.” I haven’t found any cases directly on point that deal
with this issue, although the defense relies on Whitt,8 and I’ll comment
on that in just a minute.
Specifically, Judge Mills stated in court during the first
hearing when the motion to recuse and disqualify was first brought to
his attention that he could be fair and impartial, that he had no
recollection of ever having received any kind of check from PEC, and
didn’t feel like he needed to step aside. And so the Court is relying
on that representation to resolve the recusal issue, and that is that he
can be. The defense chose not to call him, so that is the only thing
that is reflected in the record as to whether or not he could be fair and
impartial so I’ll rely on his representation that he can be.
Judge Richardson also issued a supplemental order, in which wrote that “neither side
chose to call Judge Mills as a witness. Therefore, the Court will rely upon the Judge’s representations
in the record vis-a-vis his ability to be fair and impartial.” Judge Richardson noted that Judge Mills
had received only one distribution for $18, and concluded “[t]hat amount hardly seems sufficient to
8
The “Whitt” case Judge Richardson is referring to is Pahl v. Whitt, 304 S.W.2d 250, 252
(Tex. Civ. App.—El Paso 1957, no writ), the case discussed above concerning disqualification based
on membership in an electric cooperative. Judge Richardson did not discuss Whitt in terms of
recusal, and it appears that his brief reference to it during his discussion of recusal is not relevant.
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create a bias that rises to the level of recusal or disqualification—especially in light of his statements
to the contrary in the first hearing on the matter.” These are Judge Richardson’s only findings or
comments with respect to Fuelberg’s recusal motion.
At no point in his oral pronouncement, his original order, or his supplemental order
did Judge Richardson reference the objective reasonable-person standard that applies to recusal.
Judge Richardson’s findings of fact and conclusions of law indicate that he applied a subjective
standard to determine whether Judge Mills was in fact impartial, relying solely on Judge Mills’s own
subjective state of mind and beliefs concerning whether he could be fair and impartial. Instead,
Judge Richardson should have determined whether a reasonable person would doubt Judge Mills’s
impartiality. Therefore, we conclude that Judge Richardson abused his discretion by applying the
incorrect legal standard to Fuelberg’s motion to recuse. See State v. Herndon, 215 S.W.3d 901, 907
(Tex. Crim. App. 2007) (noting that trial court abuses discretion when misapplies the law).
Based upon this conclusion, we now must decide the appropriate remedy. One of
our sister court of appeals recently addressed a similar case in which a recusal court abused its
discretion by “misapplying or misinterpreting recusal law.” See Kniatt v. State, 239 S.W.3d 910,
919–920 (Tex. App.—Waco 2007, no pet.) (op. on reh’g). In that case, the appellate court noted that
it had “not determined that the assigned judge abused his discretion in denying [the defendant’s]
recusal motion under a correct application of recusal law.” Id. at 920. Therefore, the appellate court
concluded that it should abate the appeal and remand the case for a new recusal hearing so that the
court below could apply the correct recusal standard. Id. at 922 (citing several cases from other
courts of appeals abating appeal for new recusal hearing). The court took this action even though
the trial court had already rendered a judgment of conviction.
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We have determined that this procedural approach is appropriate in this case. The
record does not clearly establish as a matter of law that Judge Mills should or should not have been
recused. Furthermore, Judge Richardson has not considered or determined whether a reasonable
person would doubt Judge Mills’s impartiality. Therefore, we will abate this appeal and remand the
case for a new recusal hearing with instructions to apply the correct reasonable-person standard.
Because we are abating this appeal and remanding this case for a new recusal hearing, we need not
reach Fuelberg’s remaining issues at this time. See Tex. R. App. P. 47.1 (requiring appellate courts
to hand down opinions that are as brief as possible while addressing those issues necessary to final
disposition of appeal).
CONCLUSION
We overrule Fuelberg’s complaint that Judge Mills was disqualified based on his
alleged pecuniary interest in the subject-matter of this case. We abate this appeal and remand this
cause for a new hearing, with instructions to address whether, under an objective reasonable-person
standard, Judge Mills (1) was disqualified as an interested party, see Whitehead, 273 S.W.3d at 286,
or (2) should have been recused because his impartiality might reasonably be questioned, see Tex.
R. Civ. P. 18b(b)(1).
The district court shall submit to this Court its findings and conclusions, along with
a transcription of the hearing, in a supplemental clerk’s record and reporter’s record on or before
October 28, 2013. At that time, we may request supplemental briefing from the parties as necessary.
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__________________________________________
Scott K. Field, Justice
Before Chief Justice Jones, Justices Pemberton and Field
Abated
Filed: August 27, 2013
Publish
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