the State of Texas v. Volkswagen Aktiengesellschaft

Supreme Court of Texas
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No. 21-0130
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The State of Texas,
Petitioner,
v.
Volkswagen Aktiengesellschaft,
Respondent
═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Third District of Texas
═══════════════════════════════════════
~ consolidated with ~
══════════
No. 21-0133
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The State of Texas,
Petitioner,
v.
Audi Aktiengesellschaft,
Respondent
═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Third District of Texas
═══════════════════════════════════════
PER CURIAM
Justice Blacklock and Justice Young did not participate in this
decision.
We lift the abatement order issued June 24, 2022, and reinstate
these cases to our active docket.
Following the voluntary recusal of two of the Court’s nine justices,
the Chief Justice, pursuant to Texas Government Code
Section 22.005(a), requested that the Governor of the State of Texas
appoint two qualified and active appellate justices or district judges to
participate in the Court’s determination of these consolidated appeals.
Respondents VW Germany and Audi Germany 1 objected and urged the
Chief Justice to rescind the request on the basis that allowing the
Governor to appoint justices in this case would create both due-process
and ethical problems because the State is a party. Respondents argue
that the Court should dismiss the petitions as improvidently granted if
five of the seven remaining justices cannot concur on a decision, as the
Texas Constitution requires. See TEX. CONST. art. V, § 2(a); TEX. R. APP.
P. 56.1(d). For the reasons explained below, we deny Respondents’
requests.
1 We refer to these parties, Volkswagen Aktiengesellschaft (VW
Germany) and its subsidiary Audi Aktiengesellschaft (Audi Germany),
collectively as “Respondents.”
2
I. Background
The Attorney General of the State of Texas, acting on behalf of
the Texas Commission on Environmental Quality (TCEQ), sued two
related foreign corporations—VW Germany and Audi Germany—
asserting violations of Texas environmental statutes 2 in connection with
an alleged vehicle-emissions cheating scandal that has come to be
referred to as “dieselgate.” Respondents filed special appearances
challenging Texas courts’ authority to exercise personal jurisdiction over
them. The trial court concluded Respondents are subject to personal
jurisdiction in Texas, and Respondents appealed. A divided court of
appeals reversed and dismissed the State’s claims. ___ S.W.3d ___, 2020
WL 7640037 (Tex. App.—Austin Dec. 22, 2020). The State sought
review, and this Court granted both petitions and consolidated them for
oral argument, which was heard on February 22, 2022. While the cases
have been pending, two of the Court’s nine justices recused sua sponte.
The Court abated the cases on June 24, and the Chief Justice, relying
on Section 22.005 of the Government Code, requested by letter that the
Governor “commission two persons with the qualifications prescribed for
Justices of the Supreme Court, each either an active appellate court
justice or active district court judge, to participate in the deliberation
and determination of these cases.” By letter dated August 25, 2022,
2 The Texas Water Code requires that such cases be brought by the
Attorney General in the name of the State of Texas. See TEX. WATER CODE
§ 7.105(a).
3
Governor Abbott responded, appointing two active appellate court
justices to participate in the Court’s determination of the cases. 3
Respondents submitted letters to the Court on June 29 and
July 13, 2022, objecting to the Governor’s appointment of the two
substitute justices. They correctly point out that Section 22.005(a) is not
mandatory but, rather, vests the Chief Justice with discretion to request
appointment of justices under these circumstances. And they argue the
Chief Justice should rescind his request because employing the
statutory process here would violate the principle that “no one may be
the judge in his or her own cause.” Respondents advance various
theories in support of this core complaint. Although they acknowledge
the Governor, the Attorney General, and TCEQ (the client-agency in
this case) are different actors, Respondents urge us to treat them—and
the commissioned substitute justices—as if they were all one,
contending that employing the Section 22.005 certification process
“would effectively allow the State to be the judge of its own cause.” Next,
relying on Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009), they
argue that even if the Governor is not technically a named party, he “has
the kind of stake in these cases” that would violate constitutional
guarantees of due process and due course of law if he were to commission
justices under Section 22.005(b). Third, they contend any justice
appointed in this case would be required to recuse under Texas’s
procedural rules and ethical canons. Respondents proclaim there is but
3 The two appointed justices are Chief Justice Bonnie Sudderth of the
Second Court of Appeals and Justice Jaime Tijerina of the Thirteenth Court of
Appeals. Neither participated in this decision regarding Respondents’
objections to their appointment.
4
one path forward if five of the seven remaining justices cannot concur
on a decision as required by our Constitution: to dismiss the petitions as
improvidently granted under Rule of Appellate Procedure 56.1(d),
leaving the jurisdictional question the cases present to be resolved in a
future case.
II. Governing Law
The United States Constitution guarantees that a state shall not
deprive any person of life, liberty, or property without due process of
law. U.S. CONST. amend. XIV, § 1. The Texas Constitution includes a
similar but not identical guarantee. See TEX. CONST. art. I, § 19 (“No
citizen of this State shall be deprived of life, liberty, property, privileges
or immunities, or in any manner disfranchised, except by the due course
of the law of the land.”). A fair trial in a fair tribunal is a basic
requirement of due process. In re Murchison, 349 U.S. 133, 136 (1955).
A fair tribunal, in turn, requires a neutral and detached hearing body or
officer. See Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006)
(citing Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973)). “The due process
clause entitles a person to neutrality in adjudicative proceedings in both
civil and criminal cases. This neutrality helps to guarantee ‘that life,
liberty, or property will not be taken’” in error “while preserving ‘both
the appearance and reality of fairness.’” Texaco, Inc. v. Pennzoil, Co.,
729 S.W.2d 768, 844 (Tex. App.—Houston [1st Dist.] 1987, writ ref’d
n.r.e.) (citation omitted) (quoting Marshall v. Jerrico, Inc., 446 U.S. 238,
242 (1980)). “To this end no man can be a judge in his own case and no
man is permitted to try cases where he has an interest in the outcome.”
Id. (quoting In re Murchison, 349 U.S. at 136). But that interest cannot
5
be defined with precision; “[c]ircumstances and relationships must be
considered.” In re Murchison, 349 U.S. at 136.
While these constitutional guarantees protect the state’s strong
interest in judicial integrity, they rarely are implicated in disputes
regarding judicial disqualification and recusal. See FTC v. Cement Inst.,
333 U.S. 683, 702 (1948) (“[M]ost matters relating to judicial
disqualification [do] not rise to a constitutional level.” (citing Tumey v.
Ohio, 273 U.S. 510, 523 (1927))). “[O]nly in extreme cases would
disqualification on the basis of bias and prejudice be constitutionally
required.” Texaco, 729 S.W.2d at 844 (citing Aetna Life Ins. Co. v.
Lavoie, 475 U.S. 813, 821 (1986)). Allegations of bias and prejudice
typically are not enough to sustain claims that constitutional
due-process rights have been violated. See Aetna, 475 U.S. at 821.
Rather, the judge or justice must have “a more direct stake in the
outcome” of the case. See id.A further reason that constitutional guarantees are only rarely
implicated in disputes regarding judicial disqualification and recusal is
that Congress and the states, by legislation and rule, have imposed more
rigorous protections of judicial integrity than our Constitutions
mandate. The result is that most cases involving questions of judicial
disqualification and recusal are determined under nonconstitutional
standards. Tumey recognized this:
All questions of judicial qualification may not involve
constitutional validity. Thus matters of kinship, personal
bias, state policy, remoteness of interest, would seem
generally to be matters merely of legislative discretion.
273 U.S. at 523 (citing Wheeling v. Black, 25 W. Va. 266, 270 (1884)).
6
Indeed, the Supreme Court of the United States has recognized
only three situations in which the Due Process Clause requires
disqualification:
(1) when the judge has a financial interest in the outcome of
the case, see id. (judges may not preside over cases in which
they have a “direct, personal, substantial pecuniary
interest”);
(2) when the judge seeks to preside over a contempt
proceeding against a witness who testified in secret before
the judge, see In re Murchison, 349 U.S. at 137 (a judge may
not act as a grand jury and then adjudicate contempt
charges against “the very persons accused as a result of his
investigations”); and
(3) when “a person with a personal stake in a particular case
had a significant and disproportionate influence in placing
the judge on the case by raising funds or directing the
judge’s election campaign when the case was pending or
imminent.” Caperton, 556 U.S. at 884.
Outside of these situations, determinations whether disqualification or
recusal is required are made by reference to the Texas Code of Judicial
Conduct, the Texas Rules of Appellate Procedure, and the Texas Rules
of Civil Procedure.
The grounds for disqualification and recusal under Texas law are
set out in Rule of Civil Procedure 18b. Relevant to this case, Rule 18b
requires a judge to recuse if “the judge’s impartiality might reasonably
be questioned” or “the judge has a personal bias or prejudice concerning
the subject matter or a party.” TEX. R. CIV. P. 18b(b)(1), (2); see TEX. R.
APP. P. 16.2 (“The grounds for recusal of an appellate court justice or
judge are the same as those provided in the Rules of Civil Procedure.”).
Canons 2 and 3 of the Code of Judicial Conduct address these same
7
issues. Titled “Avoiding Impropriety and the Appearance of Impropriety
in All of the Judge’s Activities,” Canon 2 requires that “[a] judge shall
not allow any relationship to influence judicial conduct or judgment.”
TEX. CODE JUD. CONDUCT, Canon 2(B). Similarly, Canon 3 requires a
judge to “perform judicial duties without bias or prejudice.” Id.Canon 3(B)(5). Notably, the Rules and Canons do not concern
themselves merely with mandating disqualification or recusal where
appropriate; Canon 3(B)(1) also prohibits unnecessary disqualifications
and recusals by mandating that judges “shall hear and decide matters
assigned . . . except those in which disqualification is required or recusal
is appropriate.” Id. Canon 3(B)(1) (emphasis added). This prohibition
reflects a recognition that a too-casual approach to disqualification or
recusal would threaten to frustrate our judicial system.
Where, as here, a justice has determined that recusal is
appropriate, Government Code Section 22.005 sets forth a process by
which substitute justices may be commissioned to participate in the
Court’s determination of a case. It states that “when one or more
justices of the supreme court have recused themselves . . . or are
disqualified . . . to hear and determine a case in the court,” the “chief
justice may certify” that fact to the Governor. TEX. GOV’T CODE
§ 22.005(a). In that event, Section 22.005(b) mandates that the
Governor “immediately shall commission the requisite number of
persons who are active appellate or district court justices or judges and
who possess the qualifications prescribed for justices of the supreme
court to try and determine the case.” Id. § 22.005(b). This statutory
commissioning power is derived from the Texas Constitution, which has
8
required since 1876 that when any member of the Court is “disqualified
to hear and determine any case or cases in said court, the same shall be
certified to the Governor of the State, who shall immediately
commission” a substitute justice. TEX. CONST. art. V, § 11.
Our Constitution also authorizes the Governor to appoint judges
when “[a] vacancy in the office of Chief Justice, Justice, or Judge of the
Supreme Court, the Court of Criminal Appeals, the Court of Appeals, or
the District Courts” arises, usually due to death or retirement. Id.
art. V, § 28(a). Because Texas has more than 500 justices and district
court judges, the Governor is called upon to exercise this constitutional
appointment power on a routine basis. See News – Appointment, OFF.
TEX. GOVERNOR, https://gov.texas.gov/news/category/appointment (last
visited Nov. 10, 2022) (reflecting the Governor has appointed more than
ten justices and judges so far this calendar year). Regardless of the
circumstances giving rise to the need for a judicial appointment, Texas
justices and judges are presumed to act impartially. See Rodriguez v.
State, 491 S.W.3d 18, 33 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d)
(citing Brumit, 206 S.W.3d at 645) (requiring “a clear showing of bias”
to rebut the presumption of a judge’s impartiality); see also Withrow v.
Larkin, 421 U.S. 35, 47 (1975) (stating that there is a “presumption of
honesty and integrity in those serving as adjudicators”). And they are
bound by the same ethical rules regarding disqualification and recusal,
regardless of whether they took office by means of election or
appointment.
9
III. Discussion
A. Commissioning justices does not amount to allowing the
State to “be the judge of its own cause”
Respondents argue that allowing the Governor to commission two
justices to participate in the Court’s determination of these cases is
tantamount to allowing the State “to be the judge of its own cause” and
“would create an appearance of partiality that the Court should avoid at
all costs.” Respondents’ argument rests on two fallacies: (1) that the
Governor is the State and thus effectively a party in these cases, even if
not named as such; and (2) that commissioned justices, by virtue of
having been appointed by the Governor, must be partial to the State or,
at a minimum, will necessarily appear to an ordinary person to be
partial to the State.
The claim that the Governor’s commissioning of temporary
justices would be attributable to the State, the named plaintiff,
misunderstands the nature and structure of Texas’s government. As
Respondents concede in their July 13 letter, “Texas does not have a
unitary executive.” See In re Abbott, 645 S.W.3d 276, 280 (Tex. 2022)
(“[T]he Texas Constitution does not vest the executive power solely in
one chief executive. Instead, the executive power is spread across
several distinct elected offices . . . .”).
In Texas, it is not the Governor but the Attorney General, a
distinct and separately elected officer, who has authority to initiate and
conduct enforcement actions on the State’s behalf. See TEX. CONST.
art. IV, §§ 1, 2, 22; In re Abbott, 645 S.W.3d at 283-84 (holding that “the
Governor lacks the authority to investigate or prosecute” a state
agency’s enforcement actions). Consistent with the Texas Constitution,
10
the enforcement actions here were brought not by the Governor but by
the Attorney General, as authorized by the Water and Government
Codes. See TEX. WATER CODE § 7.105(b) (requiring TCEQ to refer
certain environmental violations to the Attorney General for
enforcement); 4 TEX. GOV’T CODE § 402.021 (establishing the Attorney
General’s duty to “prosecute and defend all actions in which the state is
interested before the supreme court and courts of appeals”). Because
these actions were not brought by the Governor, at his direction, or on
his authority, we do not impute the status of party to the Governor
himself. The State acts through its officers, to be sure, but the Governor
is not automatically implicated in every state action or even every
executive-branch action.
Our cases acknowledge the separateness of a government entity
and its constituent government actors. In Abbott v. Mexican American
Legislative Caucus, this Court considered the distinction between the
State and the Governor for purposes of identifying the proper defendant.
647 S.W.3d 681, 698 (Tex. 2022) (“[C]laims . . . may be brought against
the relevant governmental entity.” (emphasis added)). We determined
that the State was not the proper defendant for one of the plaintiffs’
claims, whereas the Governor or the Secretary of State may have been.
Id. at 698, 704. In short, actors within the executive branch, be they
individuals or entities, are not interchangeable and cannot be
considered alter egos of one another. For this reason, the fact that these
4 Though the Attorney General acts on behalf of TCEQ in bringing such
enforcement actions, the Water Code requires that such actions be brought “in
the name of the state.” TEX. WATER CODE § 7.105(a).
11
enforcement actions were brought by the Attorney General on behalf of
and at the request of TCEQ is insufficient to impute party status to the
Governor.
Nor does the Governor’s authority to appoint TCEQ
commissioners or officers justify imputing party status to him. Though
the Legislature creates agencies within the executive department, their
“animating statutes do not subject their decisions to the Governor’s
direct control,” and where the Governor has the authority to appoint
agency officers, the “enabling statutes rarely give the Governor formal
control over the officers’ decisions once appointed.” See In re Abbott, 645
S.W.3d at 280 & n.1. TCEQ’s enabling statute is structured in this way.
See TEX. WATER CODE § 5.052(a) (“The commission is composed of three
members who are appointed by the governor with the advice and consent
of the senate to represent the general public.”); id. § 5.126 (requiring
TCEQ to report its enforcement actions to the Governor, Lieutenant
Governor, and Speaker of the House of Representatives); id. § 5.178
(requiring TCEQ to prepare and file biennial reports of its activities to
the Governor and the Legislature). The Governor may appoint TCEQ
commissioners and receive reports on its activities, but nothing in
TCEQ’s enabling statute gives him the authority to direct their actions.
Respondents claim the Governor has a direct interest in this
lawsuit because it will potentially increase the state’s general fund. But
the Governor, of course, holds no pecuniary interest in the general fund.
And Respondents overstate the extent of his control over the state’s
appropriations and budgeting decisions. The appropriation of the state
budget, including the general revenue fund, lies within the power of the
12
legislative department. See TEX. CONST. art. III, §§ 5(b), 35 (recognizing
the Legislature’s authority to act on appropriations and to pass a
general appropriations bill); TEX. GOV’T CODE §§ 316.021, .022
(requiring the Legislature to consider and approve general
appropriations bills); id. § 322.008 (requiring the Legislative Budget
Board to prepare the general appropriations bill for approval by the
Legislature). The Governor is involved in the budget process, to be sure.
He may prepare a budget for the Legislature’s consideration. See id.
§§ 401.0445, .046. And he consults with the Legislative Budget Board
to adopt achievement goals for the government. See id. § 2056.006. His
biennial budget, which he delivers to the Legislature, is often used as a
“guiding policy statement.” SENATE RESEARCH CENTER, BUDGET 101: A
GUIDE TO THE BUDGET PROCESS 12 (2007). But the Governor’s policy
guidance ultimately is advisory; it does not supplant the Legislature’s
ultimate authority to consider, negotiate, and approve or deny the
general appropriations bill. In sum, the Governor’s status as the elected
officer that leads the executive branch does not justify imputing other
state actors’ conduct or party status to him.
Respondents’ claim that the Governor’s commission of substitute
justices under Section 22.005 amounts to allowing “the State to be the
judge of its own cause” fails for another reason. A judge appointed by
the Governor does not, by virtue of his or her appointment, become the
State’s judge. By this, we mean that the mere fact of being appointed
does not taint a judge with partiality in the State’s favor. It does not
support the assertion, pressed heavily by Respondents, that
commissioned justices—whether appointed temporarily for
13
participation in one case or to complete an unexpired term prior to a
general election—will necessarily seek to advance the State’s interests
in the cases that come before them. Indeed, the very nature of an
independent judiciary requires that judges act neutrally and not seek to
further one party’s interests. See Rodriguez, 491 S.W.3d at 33 (citing
Brumit, 206 S.W.3d at 645) (judges are presumed to act impartially).
Respondents’ complaint that a commissioned justice would be acting as
“the State” in the State’s cause is at odds with the very nature of judging.
B. This case is not like Caperton or any other case requiring
disqualification or recusal
Respondents next contend that the Governor is constitutionally
prohibited from commissioning justices to hear these cases. They rely
heavily on Caperton, asserting that even if the Governor is not actually
a party, he has a “personal stake” in the case such that his appointment
of two substitute justices to participate in the determination of these
cases would violate due process. Notably, Respondents do not complain
that either of the two commissioned justices has a personal bias or
individual circumstance that requires disqualification or recusal;
indeed, Respondents objected to their appointment before their
identities were known. Respondents instead contend that the
Governor’s role in the Section 22.005 process taints every justice or judge
who could be appointed. In their view, the Governor’s appointment of
any justice is constitutionally intolerable.
Caperton is the centerpiece of Respondents’ argument, and a
recitation of its “extraordinary” and “extreme” facts demonstrates it
does not control this case. See 556 U.S. at 887. Hugh Caperton had
obtained a $50 million judgment against A.T. Massey Coal in West
14
Virginia state court. Id. at 872. After Massey appealed, Caperton
challenged one justice’s participation in the case on the grounds that
Massey’s president, chairman, and chief executive officer, Don
Blankenship, contributed $3 million to benefit the justice’s judicial
campaign while the appeal was pending. Id. at 873. The candidate won
the election—becoming Justice Benjamin—and participated in the
decision of the case over Caperton’s objection. Id. at 873-74. Justice
Benjamin denied Caperton’s motion to disqualify and voted with the
three-justice majority, which reversed the judgment against Massey. Id.
at 874.
The case took strange turns on rehearing. Photos surfaced of one
justice “vacationing with Blankenship in the French Riviera,” leading
that justice to recuse. Id. at 874. Yet another justice recused on
Massey’s motion, based on his public criticism of Blankenship’s role in
the election. Id. at 874-75. But Justice Benjamin again denied a motion
seeking his disqualification, despite the urging of a recused justice, who
noted that “Blankenship’s bestowal of his personal wealth, political
tactics, and ‘friendship’ have created a cancer in the affairs of th[e
court].” Id. at 875 (internal quotation marks omitted). Justice Benjamin
then became the acting chief justice responsible for selecting two
substitute justices to replace the two who recused. Id. Caperton again
objected, but Justice Benjamin denied the motion anew, and the newly
comprised court again reversed the judgment against Massey. Id.The United States Supreme Court granted certiorari and held
that due process requires recusal when a “person with a personal stake
in a particular case ha[s] a significant and disproportionate influence in
15
placing the judge on the case by raising funds . . . when the case [is]
pending or imminent” and the result is that, in effect, “a man chooses
the judge in his own cause.” Id. at 884, 886. Blankenship held a
personal financial interest in the outcome of the case and had
disproportionate influence in securing Justice Benjamin’s election to the
court. See id. at 884. Justice Benjamin, in turn, obtained a
multi-million-dollar benefit from Blankenship but nevertheless
participated in the decision of the case over Caperton’s repeated
objections and then proceeded to exercise the appointment power to
choose two other judges. See id. at 873, 875. The Court concluded these
circumstances created “a serious, objective risk of actual bias” sufficient
to require Justice Benjamin’s recusal whether or not actual bias exists
or can be proved. Id. at 886. Yet it noted the unlikelihood that such a
fact pattern would arise again, dismissing the dissent’s concerns that its
decision would result in “a flood of recusal motions” or “unnecessary
interference with judicial elections” because the facts were “extreme by
any measure.” Id. at 887.
Caperton is different from this case in meaningful respects. First,
the Governor has constitutional and statutory duties to appoint justices
and judges. TEX. CONST. art. V, §§ 11, 28(a); TEX. GOV’T CODE
§§ 22.005(b), .217(b). Blankenship, by contrast, was under no duty to
support Justice Benjamin’s campaign. His participation in assisting
Justice Benjamin in winning election to the West Virginia court was
voluntary. In the Court’s view, Blankenship’s participation reasonably
could be perceived as having been motivated by his personal financial
16
interest in having the Massey judgment reversed. See Caperton, 556
U.S. at 886.
Second, analogizing the Governor to Blankenship does not work
because, unlike in Caperton, the Governor does not confer on the
commissioned justices anything of pecuniary value. The commissioned
justices do not receive more pay for having been commissioned, and, on
the other side of the coin, commissioning these justices requires no
financial outlay by the Governor. There is no basis for imagining a quid
pro quo exists between them. Blankenship made a multi-million-dollar
outlay for Justice Benjamin’s benefit and vacationed with another
justice while Massey’s appeal was pending. Id. at 873-74.
Third, unlike in Caperton, the factors weighing against requiring
recusal here carry vast significance for our judicial system itself. In
Caperton, Justice Benjamin’s recusal would have had no ill effect on the
judicial system. Had he recused, another justice could have served in
his stead. Massey would not have lost its right to appeal, only its desire
to have it determined by Blankenship’s preferred justices. Here, by
contrast, adopting Respondents’ theory would hinder the normal
operation of Texas’s highest civil court. If no substitute judge or justice
could ethically participate in the decision of these cases and the
remaining justices could not reach a five-justice consensus, the Court
would have no choice but to raise a white flag and dismiss the State’s
appeal without reaching its merits. Neither the due-process guarantee
nor our ethical rules contemplate that their application would bring the
courts to such a grinding halt. See Cameron v. Greenhill, 582 S.W.2d
775, 776 (Tex. 1979) (“The Constitution does not contemplate that
17
judicial machinery shall stop. If this is threatened, the doctrine of
necessity will permit the judge to serve.” (citing Hidalgo Cnty. Water
Control & Improvement Dist. No. 1 v. Boysen, 354 S.W.2d 420, 423 (Tex.
App.—San Antonio 1962, writ ref’d))).
Nor is this case like the others in which the United States
Supreme Court has held due process requires disqualification. Tumey,
on which Caperton relies, involved a city mayor who himself acted as the
judge in cases in which he stood to receive a personal financial benefit if
he obtained a conviction. See Tumey, 273 U.S. at 520. Here, by contrast,
the Governor has not commissioned himself to serve as a justice in these
cases. Likewise, the substitute justices have no financial incentive to
favor one side over the other.
Aetna Life Insurance Co. v. Lavoie likewise illustrates that mere
allegations of bias and prejudice of the type alleged here are insufficient
to create a constitutional due-process violation. See 475 U.S. at 821.
Aetna claimed a state supreme court justice, Justice Embry, was biased
against it because Justice Embry had brought a pending class action
against insurers, the outcome of which would be affected by the court’s
decision in Aetna’s case. Id. at 817. Yet Justice Embry authored the
per curiam opinion that had the “immediate effect of enhancing both the
legal status and the settlement value of his own case.” Id. at 818, 824.
The existence of this concrete, personal, pecuniary interest led the Court
to conclude that Justice Embry had impermissibly “acted ‘as a judge in
his own case.’” See id. at 824 (quoting In re Murchison, 349 U.S. at 136).
Here, Respondents can point to no such personal, pecuniary interest
that would justify disqualifying the entire Texas judiciary.
18
Aetna’s treatment of justices other than Justice Embry is likewise
instructive. The Court refused to disqualify the other justices despite
Aetna’s assertion that they were potential class members in Justice
Embry’s suit. Id. at 825. The Court concluded that any purported
interest other justices might have was too slight and indirect and,
importantly here, doing so on such a slight basis “might require the
disqualification of every judge in the State.” Id. (noting that if
circumstances did require all justices to recuse, a “rule of necessity”
might apply so that “none of the judges or justices would be
disqualified”).
Aetna is thus instructive on several fronts. First, mere
allegations of bias and prejudice are generally insufficient to establish a
constitutional violation; a violation is likely only to occur where there
are extreme facts giving rise to a “direct, personal, substantial,
pecuniary interest” in the case. See id. at 821-22 (quoting Tumey, 273
U.S. at 523)). Second, a pecuniary interest must be direct, rather than
speculative and contingent, to raise constitutional concerns. See id. at
826. Third, the Court recognized the rule of necessity permits judges to
hear cases in which they might otherwise be recused if the case cannot
be heard otherwise. See id. at 825 (citing United States v. Will, 449 U.S.
200, 214 (1980) (allowing federal judges to participate in hearing a
matter in which all Article III judges had a pecuniary interest)).
Texas courts have similarly concluded that a single campaign
contribution to a judge, in the absence of other compounding factors,
does not present an “appearance of bias and prejudice” that would rise
to the level of a constitutional violation. See Texaco, 729 S.W.2d at
19
844-45. In that case, Texaco argued that disqualification of a judge who
had received a campaign contribution from a lawyer participating in the
case was required by Commonwealth Coatings Corp. v. Continental
Casualty Co., 393 U.S. 145 (1968). Texaco, 729 S.W.2d at 844. The court
of appeals distinguished Commonwealth on the basis that it involved the
appeal of an arbitration award in which one of the arbitrators had an
ongoing, sporadic business relationship with one of the parties,
including “the rendering of services on the very projects involved in the
lawsuit.” Texaco, 729 S.W.2d at 845. In contrast, the trial judge in
Texaco had “neither participated with Pennzoil in the case being tried
nor enjoyed even ‘the slightest pecuniary interest’ in the outcome of the
trial.” Id. (quoting Tumey, 273 U.S. at 524). So too here. Because the
commissioned justices do not enjoy even the slightest pecuniary interest
in this case’s outcome, their participation raises no constitutional
concerns.
C. Ethical standards do not require per se disqualification of
every justice or judge commissioned pursuant to
Section 22.005
Respondents also assert that the Governor should not commission
substitute justices because commissioning any justice or judge pursuant
to Section 22.005 would create an appearance of impropriety in the mind
of an ordinary person. The argument ignores a fundamental legal
principle—justices and judges are presumed to act impartially and
honestly. See Rodriguez, 491 S.W.3d at 33 (citing Brumit, 206 S.W.3d
at 645) (requiring clear showing of individual judge’s bias to rebut
presumption of impartiality); see also Withrow, 421 U.S. at 47.
Respondents’ theory turns the presumption upside-down: in their view,
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a reasonable person would necessarily look askance at even the noblest
of judges with unquestionable ethics if they were commissioned to serve
in these cases.
Yet, even leaving the presumption aside, we are not convinced
that a justice’s acceptance of the Governor’s appointment to participate
in the determination of these cases would create in reasonable minds a
perception that the justice is unable to carry out his or her
responsibilities with integrity, impartiality, and competence. The
commissioning statute requires that a temporary justice be selected
from among the state’s “active appellate or district court justices or
judges.” TEX. GOV’T CODE § 22.005(b). The eligible justices and judges
routinely—and ethically—decide cases in which the State, the Governor,
or other state officials are parties. We trust they could meet those same
ethical obligations in these cases.
In short, we do not agree that the mere fact of the Governor’s
selection of justices or judges to participate in a particular case would
necessarily create in reasonable minds a perception that these justices
or judges would be unable to carry out their responsibilities with
integrity, impartiality, and competence; otherwise, every eligible justice
or judge would necessarily be disqualified. In these cases, as in all other
cases, whether to recuse must be a decision for the commissioned justice
or judge in the first instance. See TEX. R. CIV. P. 18b.
IV. Conclusion
The Governor’s appointment of two substitute justices to
participate in the determination of these cases does not, in and of itself,
create a serious risk of actual bias under Caperton and therefore does
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not violate the due-process or due-course-of-law provisions. Nor does it,
standing alone, taint the commissioned justices with the appearance of
partiality or impropriety under Texas ethical rules. We therefore deny
Respondents’ requests to withdraw the Chief Justice’s certification
letter and to dismiss the petitions as improvidently granted.
OPINION DELIVERED: November 18, 2022
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