Untitled Texas Attorney General Opinion

QBffice of tip Rttornep Qkneral
&ate of llCexae
DAN MORALES April 20,1992
ATTORNEY
GENERAL
Mr. Robert Plowers Opinion No. DM-109
Executive Director
State Commission on Judicial Conduct Re: Whether a constitutional county
P. 0. Box 12265, Capitol Station judge is disqualified from presiding over
Austin Texas 78711 probate proceedings involving wills that
he prepared or witnessed and related
questions (RQ-48)
Dear Mr. Plowers:
You ask whether the county judge is disqualified from presiding over probate
matters under various circumstances.t You state that in some of the more sparsely
populated counties in Texas, the county judge presides over probate matters and is
also one of the few attorneys in the county. In such counties, it is probable that wills
prepared by the county judge will be offered for probate in his court. You ask
whether constitutional county judges who are also licensed to practice law may
preside over probate proceedings under the following circumstances:
1. when the will offered for probate was prepared by the judge
for a deceased client prior to the time the judge assumed. the
bench?
2. when the will offered for probate was prepared by the judge
for a deceased client after the judge assumed the bench?
3. when the will offered for probate was prepared by an
attorney related to the judge by affinity or consanguinity within
the third degree?
1Thc musty judge i the presiding officer of the constitutional county court established in each
county of the state by article V, section I5 of the Texas Constitution. See Tex. coast. art. V, 0 16; Gov’t
Code 5 21.009. The county court has the general jurisdiction of a probate court including authority to
probate wiUs,grant letters testamentary and of admiitration and guardianship, settle accounts of
personalrepr~otatives, and transact all business relative to estates subjcd to administmtion or
guardianship. Prob. Code 0 4; see aho id 0 36 (duty of county judge with respect to estates).
Mr. Robert Plowers - Page 2 (DM-109)
4. when the will offered for probate was prepared by an
attorney with whom the judge is, or was, engaged in the practice
of law?
5. when the wilt offered for probate was prepared by another
attorney but witnessed by the judge either prior to or after
assuming the bench?
You also ask whether the answers would be different for a particular will that is self-
proven or uncontested.
You direct our attention to article V, section 11 of the Texas Constitution,
which governs disqualification, and rule 18b of the Texas Rules of Civil Procedure,
which governs recusal, as relevant to your questions. We will address each provision
in turn.
We will advise you about the law governing disqualification of a judge, but
we cannot determine whether disqualification of a judge would be required in a
particular case. This determination requires an evaluation of all relevant facts. A
legal opinion from this office cannot make the fact findings necessary to decide
whether a judge should be disqualified in a particular case.2
The constitutional provision sets out grounds for disqualification of a judge in
the following language:
No judge shall sit in any case wherein he may be interested,
or where either of the parties may be connected with him, either
%IIC salient facts of some cases may be so similar to the facts recited in jdkial decisions that
the question of disqualification can be resolved as a matter of law. The facts you se2 out do not permit
us to mok your questions as a matter of law.
p. 546
Mr. Robert Plowers - Page 3 (DM-109)
by aftinity or consanguinity, within such a degree as may be pre-
scribed by law,3or when he shall have been counsel in the case.
Tex. Const. art. V, 9 11 (footnote added); see uko Tex. R. Civ. P. 18b(l) (restating
constitutional grounds for disqualification).
Disqualification under the constitution affects the judge’s jurisdiction and
power to act and camrot be waived. Postal Mut. Indem Co. v. Ellis, 140 Tex. 570,
169 S.W.2d 482 (1943). Any judicial act or discretion exercised by a judge who is
subject to disqualification pursuant to. the constitution is void. Templeton v.
Giddings, 12 S.W. 851 (Tex. 1889). The grounds for disqualification of judges stated
in the constitution are exclusive. Love v. Wilcox,28 S.W.2d 515 (Tex. 1930); see ako
Ahiridge v. State, 170 Tex. Grin 502,342 S.W.2d 104 (1960); Berry v. State, 83 Tex.
Grim. 210,203 S.W. 901(1918).
We will discuss each of the three constitutional grounds for disqualifica-
tion: the judge’s interest in the case; his relationship with a party in a prohibited
degree; and his having been counsel in the case.
The term “interest” refers to direct pecuniary interest. C@vof Oak C@f v.
Stare, 97 Tex. 391,79 SW. 1068 (1904). Some of the early cases on disqualification
for interest address disquahfication of the county judge from presiding in a probate
matter. A county judge was disqualified to preside in the probate of a will when he
had previously acted as temporary administrator and had not closed his accounts.
B&s v. Bennett, 55 Tex. 237 (1881). His consequent liability to account for his
administration was a disqualifying interest such that removal of the probate
proceeding to the district court was authorized. Id. The county judge also had two
small claims against the estate. Id. These claims constituted a direct pecuniary
interest in the probate proceeding that disqualified him from serving as probate
judge and rendered invalid orders he had issued before the estate was removed to
htion 21.005 of the Govemmcnt Code provides that a judge may not sit in a case if either of
the parties is related to him by affinity or ccmsaoguiaity within the third degree. See a&o Tu R. Civ.
p- WW).
p. 547
Mr. Robert Plowers - Page 4 (DM-109)
district court. Burke v. Bennett, 62 Tex. 277 (1884)’ A county judge who was named
in the will as executor and was a creditor of the estate was disqualified for interest
from presiding over the probate proceeding. Prendetgars v. Beale, 59 Tex. 446
(1883). The judge had also drafted the will, but the court did not rely on that fact in
determining that he was disqualified.
Interests other than direct pecuniary interests in a case do not disqualify a
judge. Cameron v. Greenhill, 582 S.W.2d 775 (Tex. 1979). A judge is not
disqualified for having an opinion on the subject matter of the case, or for having
knowledge of the facts of the case. Lambardino v. Firemen’s & Policemen’s Civil
Service Con&n, 310 S.W.2d 651 (Tex. Civ. App.-San Antonio 1958, writ refd
n.r.e.); Chavha v. Ma&r, 252 S.W.2d 262 (Tex. Civ. App.--San Antonio 1952, no
writ). Nor is a judge disqualified for interest from handling the appeal of a case he
heard at the trial level. Be&am v. Rice, 1 Tex. Civ. App. 281,21 S.W. 389 (1892,
writ refd); see alro Hoyt v. Hoyt, 351 S.W.2d 111 (Tex. Civ. App.--Dallas 1961, writ
dism’d w.0.j.).
A judge is disqualified if a party to the proceeding were related to him by
affinity or consanguinity within the prohibited degree provided by law. G&r v.
Bwr, 60 Tex. 676 (1884). A “party”is not restricted to persons named as parties, but
includes all persons directly interested in the subject matter and result of the suit.
Postal Mut. Indem Co. v. Ellis, 140 Tex. 570, 169 S.W.2d 482 (1943). A probate
judge will be disqualified if he is related within a prohibited degree to the
administrator of an estate, even though the administrator is not named as a party.
Duncan v. Herder, 57 Tex. Civ. App. 542, 122 S.W. 904 (1909, writ refd); Gains. 60
Tex. 676. An attorney for a party is ordinarily not a party to the suit so as to
disqualify the trial judge. Wmon v. Marterson, 87 Tex. 200. 27 S.W. 768 (1894);
Canavati v. Shipman, 610 S.W.2d 200 (Tex. Civ. App.-San Antonio-1980, no writ).
But see Postal Mutual Indenvuly Company, 140 Tex. at 575, 169 S.W.2d at 485; Sun
&piomtion & Production Co. v. Jackson, 729 S.W.2d 310 (Tex. App.-Houston [lst
Dist.] 1987, no writ) (rule for attorney in workers compensation cases wherein judge
4Attomey General Opinion V-79 (1947’)dctermincd that a newly-clecIcd county judge who as
a private attorney had handled mm~crous probate matters, many of which were still pending ia county
court, could continue to ad as administrator of estates in county court. The opinion eapremly assumed
that he had no pecuniary interest in the subject matter over which he presided and did not discuss this
arpcd of the law OTrefer to Bwkr V. Benma, 55 Tu 237 (1881) or Ptwtde@?ss Y. Beak, 59 Ta 446
ww.
p. 548
Mr. Robert Flowers - Page 5 (DM-109)
determines attorney’s fee). Thus, the term “parties” in article V, section 11 of the
Texas Constitution includes named parties and other persons with a direct pecuniary
interest in the suit.
counsel m thecase
Finally, a judge is disqualified for having been counsel in the case. None of
the cases construing this portion of article V, section 11 of the Texas Constitution
address the circumstances you have inquired about.5
The court in Matlock v. Sanders, 273 S.W.2d 956 reviewed earlier cases on
disqualification of judges for having been counsel in the case, and stated the
following rule:
[I]n order for a trial judge to come within the constitutional and
statutory inhibitions against sitting as judge in a case in which he
had been counsel, it is necessary that the judge had acted as
counsel for some of the parties in suit before him in some
proceeding in which the issues were the same as in the case
before him.6
273 S.W2d at 958; see ako City of Au& v. CahiU, 99 Tex. 17289 S.W. 552 (1905)
(on motion for rehearing); L&e v. Keller, 615 S.W.2d 916 (Ten Civ. App.-Tyler
1981, no writ).’
sBut see Conon Y.Blair, 121 SE. 517 (Ga. Ct. App. 1923) (judge not disqualified because be
drathd contract on wbicb case was founded); Mtiey v. G9.160 Cal. 390,117 P. 438 (1911) fjudge
not disqualitied to try action to quiet title to mortgaged homestead where he &a&d mortgage). See
&wuml& Aaaotatioo, Diqulijicafion of Judge,72 A.L.R.2d443 (1960) (disqualitkation of judge for
prior representation as attorney of counsel).
a statement is descriid as the general rule for civil cases in Kilgarlin & BN&,
Disquali@wtion and Rmuwl ofJudges, 17 St. Mary’s L J. 599,6X2 (19%).
‘On some facts, it i clear that the judgehad been counsel in the case. Because he had signed
and filed pleadings on behalf of parties to a suit, a judge had been attomey in the. case and was
diq&cd from performing any judicial adorn ia that suit. Hide&p Cinoy Water Gmti CL
Impovmtrm LU. No. 1 v. Boysen, 354 S.W.2d 420 (Tax. Civ. App.-San Antonio 1962, tit ref’d); see
ate0 f3aine.rv. Hindmen, 74 SW. 583 (Tcx. 1903, a0 writ) (judge prepared motion for ae.w bial). ff the
judge was a member of a law firm that gave counsel on the matter ia titigatiq he will be disqualified
from trykg the case. Stole n ml. Routh Y. B&r, 82 Tea. 584,18 S.W. 662 (1891) (law firm assisted in
organizing a municipal corporation, which the state sought to dissolve). However, if faus show that the
p. 549
Mr. Robert Flowers - Page 6 (DM-109)
Thus, a judge who acted as attorney for a party in a suit raising identical
issues to the one before him is disqualified under the third aspect of the
constitutional prohibition. For example, by giving legal advice to one party in a
divorce proceeding, a judge was disquali6ed from trying a subsequent divorce case
that raised the same issues between the same parties. Johnron v. Johnson, 89 S.W.
1102, 1104 (Tex. Civ. App. 1905, no writ). Although he only gave advice without
planning to act any further in the matter as an attorney, he was nonetheless counsel
in the case. Id. It was not necessary that he either received or expected compensa-
tion for his advice. Id.
A judge was disqualified from a suit challenging a conveyance of title to land
because as a practicing attorney he had written a title opinion on the identical tract
of land for the grantor of the deed under which the defendant claimed title.
U?lliums v. Zhven, 532 S.W.2d 159 (Tex. Civ. App.-Austin 1976, writ refd n.r.e.).
Although the grantor was not a party to the suit, the interest of the grantor and
defendant were so closely allied as to justify the conclusion that the defendant stood
in the place of the grantor, for whom the judge had been counsel. Id. While the
judge had never advised any of the parties before him, his former client and the
defendant were essentially treated as the same person because of their identical
interests in this matter,
Another series of cases exemplifies prior contacts with parties or issues that
do not disqualify a judge for having been counsel in the case. If his sole prior
involvement with the case before him consisted of representing a party in some
other matter, or of doing legal work that related to issues in the case before him, but
did not involve the same parties, a judge has not been “counsel in the case.” A trial
judge who has personally prosecuted or defended a defendant in past cases is not
disqualified from presiding over a trial where a new offense is charged. Hathome v.
State, 459 S.W.2d 826 (Tex. Crim. App. 1970). cert &cd, 402 U.S. 914 (1971).
A county judge was not disqualified from trying an action for probate of a
holographic will because he had previously acted on behalf of the testator and his
sole devisee in preparing a promissory note payable to the proponent of the will and
secured by a deed of trust. L.&e, 615 S.W.2d 916. There was no evidence that the
testator consulted him about his will. The reviewing court stated that the judge had
performed legal services for the parties in a routine real estate transaction and had
(footnote contjnued)
judge leti the law firm before it undertook the case, he is not disqualifcd. W&m County Lumber Co.
v. Swrrr, 63 S.W.Zd1061 (Tex. Civ. App.-Beaumont 1933, writ dism’d w.0.j.).
p. 550
Mr. Robert Plowers - Page 7 (DM-109)
not acted as counsel for some of the parties in a proceeding raising the same issues
as the wilt contest suit.
In a suit by grantor for cancellation of a deed, the judge was not disqualified
because he had, as attorney, drawn the will under which the grantor had received
the property, when it was only collaterally involved in the case. Hooks v. Brown, 348
S.W.2d 104 (Tex. Civ. App.-Austin 1961,writ refd n.r.e.); see uko Cormerv. Conner,
457 S.W.2d 593 (Tex. Civ. App.-Amarillo 1970, writ dism’d) (judge who acted as
notary when land deeded from parents to husband was not disqualitied to try
divorce action and property settlement involving same land).
You inquire about uncontested as well as contested probate proceedings, but
the judicial decisions we have cited on disqualification of a judge for having been
counsel in the case involve adversary proceedings. Therefore, we must determine
whether this ground for disqualification applies only in an adversary proceeding, or
to an uncontested probate proceeding as well. This question arises because “case”is
frequently defined as a “controversy” or a question contested before a court.
BLACK’SIsrw DIC~ONARY215 (6th ed. 1990); see Cify of Big Spring v. G-on,
88 S.W.2d 1095,1096 (Tex. Civ. App.-Eastland 1935, no writ).
A probate proceeding is, however, a “case” for purposes of determining
disqualification for interest under the Srst sentence of article V. section 11 of the
Texas Constitution. See Burks v. Bennett, 55 Tex. 237; Pmndergars, 59 Tex 446; see
aLro Attorney General Opinion WW-1505 (1962) (county judge who is guardian of
person and estate of one of unsound mind is disqualified for interest from hearing a
matter relating to the guardianship). The same sentence of the constitutional pro-
vision also provides for disqualification for having been “cotmsel in the case.” The
courts will refer to rules like those governing the interpretation of statutes to
construe constitutional provisions. Booth v. Sfripplemun, 61 Tex. 378,382 (1884). In
construing a statutory word, the court may consider the meaning of the same word
used elsewhere in the act. See Hartelyv. Lungdon & Co., 347 S.W.2d 749 (Tex. Civ.
App.-Houston [lst Dist.] 1961, no writ). It is reasonable to conclude that the
phrase “counsel in the case” includes participation in uncontested probate
proceedings.s
*A case from aaothcr state held the judp of the county court diqualitied from continuing to
preside over a non-adversary probate pmceubg after he appeared as attorney for the executor in
&cult court. In n s%khq@‘sEstate, 62 S.D. 110,251 N.W. 892 (1934).
p. 551
Mr. Robert Plowers - Page 8 (DM-109)
Moreover, Attorney General Opinion V-79 (1947) found that a county judge
could be disqualified from uncontested probate matters for having been counsel in
the case. It concerned an attorney who had recently become county judge, and who
had handled probate matters, many of which were still in court. The opinion set
forth the following definition:
The word “case” as used in the Constitution and this statute
means any legal controversy between parties with respect to a
matter of fact or of law; any justiciable matter or thing between
opposing parties presented forkdecision; any proceeding right&
before a judge withnqect to any tight of the pa&s, whether legal
or equitable, and whether it involves a property right or a
personal right.
Attorney General opinion V-79 at 3 (emphasis added).
The italicized language in the quotation above includes uncontested matters.
Attorney General Gpiion V-79 held that the county judge was disqualified from
considering applications or matters in the administration of an estate if he had ad-
vised the administrator or guardian about that application or matter. We conclude
that the third ground for disqualification may apply in an uncontested probate
proceeding. Whether the judge is disqualified from presiding over a particular
probate matter must be decided by evaluating the relevant facts in that case.
RBCUSAL
Recusal is significantly different from disqualification. It includes “those
instances in which a judge voluntarily steps down and those instances in which a
judge is required to step down on motion of a party for reasons other than those
enumerated as disquali&ng in the Constitutior~” Kilgarlin & Bruch,
Diqudijication and Reawl of Judges, 17 St. Mary’s L.J. 599, 602 (1986).
Traditionally, whether a judge would comply with a request to step down was a
matter solely for his determination Lungdeau v. Dick, 356 S.W.2d 945,959 (Tex.
Civ. App.-Austin 1962, writ refd n.r.e.).
There is now a procedure for judicial resolution of requests for recusal. Rule
18a of the Texas Rules of Civil Procedure authorizes any party to a legal proceeding
to file a motion stating why the judge should not sit in the case. Tex. R. Civ. P.
l&(a). Prior to any further proceedings in the case, the judge shall either recuse
himself or request the presiding judge of the administrative judicial district to assign
p. 552
Mr. Robert Plowers - Page 9 (DM-109)
another judge to the matter. Id lSa(c). The Texas Supreme Court has construed a
1977 amendment to section 6 of former article 2OOa,V.T.C.S., which prescribed a
recusal procedure very similar to the procedure set out in rule 18a. McLeod v.
Han& 582 S.W.2d 772 (Tex. 1979)s The court concluded that the judge had a
mandatory duty to request the assignment of another judge to hear the motion for
recusal. Id at 775.
Grounds for recusal are set out in subsection (2) of rule 18b, which provides
in part:
(2) Recusal
A judge shall recuse himself in any proceeding in which:
(a) his impartiality might reasonably be questioned;
(b) he has a personal bias or prejudice concerning the
subject matter or a party, or personal knowJedge of disputed
evidentiary facts concerning the proceeding;
(c) he or a lawyer with whom he previously practiced law
has been a material witness concerning it;
%atmte 3 io Mcbd state4 that the Lais for disqualiGcation of a judge is stated in article V,
seeha 11 of the Texas Constitution and that the coastitutioaal prohibition has been implemented by
V.T.C.S. article 1s. the Code of Criminal Procedure article 30.01, and canon 3C of the Code of Judicial
Conduct. This footnote was initially thought to say that a statate had added grounds for the
diqdifmtioa of a judge to the coastitutional grounds. See Robb Y. Robb, 605 S.WZd390 (Tcx. Civ.
App.-El Paso 1980, no writ) (questioned but fobwed this raadi`` of the focbote); calvcrt,
Disqaulijication of Judges, 47 Tea. BJ. l330 (1984) (criticizing this reading). However, subsequent
caxe show that McLeod iateadcd DOchaoge in the loagsta~diag rule that the constitution prcsaii
the ody grounds for disqualification. See Man@s Y.Gumo, 673 S.W.2d 180 (Tax. 1964); Tam, Inc. Y.
Pamoil, Co., 729 S.W.2d 768,843 (Tex ASP.--Houston [lst Dist.] 1987, tit ref’d nr.e.), cet?. denied,
485 U.S. 994 (1988); Jfivu Road Neighbodwod Ash Y. South Taas Spc~c, Inc., 673 S.W.2d 952,953
(Tu ApprSaa Antonio 1984, no writ).
p. 553
Mr. Robert Piowers - Page 10 (DM-109)
(g) he or his spouse, or a person within. . . [certain degrees
of relationship] is acting as a lawyer in the proceeding.‘0
. . . .
(4) In this rule:
(a) “proceeding” includes pretrial, trial, or other states of
litigation;
. . . .
(5) The parties to a proceeding may waive any ground for
recusai after it is fully disclosed on the records.
Ten R. Civ. P. 18b (footnote added).
Rule 18b(2) authorizes a voluntary recusaI under the circumstances it sets
out. huur v. County of DaSa.r, 794 S.W.2d 560 (T&i. App.-DaIIas 1990, no writ);
Sun ErplomIion & production Co. v. Jackson, 729 S.W.2d 310 (Tex, App.-Houston
[lst Dist.] 1987, no writ). The parties may waive a ground for recusai, either
expressly. pursuant to subsection (5) of rule 18b, or by failure to raise it properly
under rule 18a. See Tex. R. Civ. P. 18b(5) (express waiver); De&c v. State, 799
S.W.2d 701 (Tex. Crim. App. 1990). cert. denied, 111 S. Ct. 2912 (1991); Calvert,
Diqtdtflcadon ofJudges, 47 Tex. BJ. 1330 (1984).
We are unable in an attorney general opinion to state when there wili be
recusai in a probate matter under the circumstances that you have descriid. A
judge’s decision to voluntarily recuse himself is a matter for his sole determination.
If a party to a proceeding believes that recusaI is necessary, he must follow the
procedure set out in rule 18a. or waive his ground for recusal. The judge assigned to
the matter will decide on the basis of the facts whether recusai is in order. Some of
the facts you set out may cause a party to raise an issue of recusaI under rule 18b(2),
p. 554
Mr. Robert Plowers - Page 11 (DM-109)
but such issues must be resolved on a case-by-case basis in accordance with the
provisions of rules Ma and 18b.
The constitution and several statues authorize the assignment of a special
judge when the county judge is disqualified, as well as when he is unable to preside
for other reasons. See genemlly Attorney General Opinion H-1132 (1978) (appoint-
ment of special county judge). Article V, section 16 of the Texas Constitution
provides in part:
When the judge of the County Court is disqualified in any
case pending in the County Court the parties interested may, by
consent, appoint a proper person to try said case, or upon their
failing to do so a competent person may be appointed to try the
same in the county where it is pending in such manner as may be
prescribed by law.
See uko Gov’t Code &I 25.0022 (presiding judge of statutory probate courts may
assign special judges to county courts exercising probate jurisdiction), 26.012
(appointment of special judge by governor if county judge is disqualified to act in
probate matter), 26.021, 26.022 (appointment of special judge in counties which
have no county court at law or statutory probate court); Prob. Code # 5 (county
court in counties with no statutory court exercising probate jurisdiction may request
assignment of judge pursuant to Government Code section 25.0022 or transfer
contested probate matter to district court).
Thus, there are various procedures for securing a special judge if the county
judge is disqualified, recuses himself, or is unable to preside for other reasons.
SUMMARY
Article V, section 11 of the Texas Constitution provides for
disqualification of a judge from sitting in a case in which he is
interested, in which either of the parties is connected with him
by a degree of affinity or consanguinity set out in the laws, or in
which he has ken counsel in the case. A “case”within the third
ground of disqualiication includes an uncontested probate
matter. Whether a judge is disqualified pursuant to article V,
section 11 of the Texas Constitution from presiding in a
particular probate matter requires a case-by-case determination
based on all relevant facts and circumstances.
p. 555
Mr. Robert Flowers - Page 12 (DM-109)
A judge may voluntarily recuse himself pursuant to rule 18b
of the Texas Rules of Civil Procedure. Rule 18a of the Texas
Rules of Civil Procedure authorizes any party to a case to move
for recusal of the judge. The judge may then voluntarily recuse
himself or request the chief administrative judge of the district
to appoint a judge to hear the motion for recusaL We are
unable to conclude as a matter of law that a particular set of
facts would result in a judge’s recusal from a probate matter.
Very truly yours,
DAN MORALES
Attorney General of Texas
WJLLPRYOR
First Assistant Attorney General
MARY KELLER
Deputy Assistant Attorney General
RENEAHICKS
Special Assistant Attorney General
MADELEINE B. JOHNSON
Chair, Opinion Committee
Prepared by Susan L Garrison
Assistant Attorney General
p. 556