Off the Case: Grounds for Recusal in Texas

Every year in courthouses across the state, judges and prosecutors are recused from cases or investigations — sometimes voluntarily, sometimes not. The reasons for removal vary, but most often, the grounds for recusal are an obvious conflict of interest.

For example, it is not uncommon for a district attorney’s office or criminal district attorney’s office to voluntarily recuse themselves from a case in which an employee’s family member has been accused of a crime, such as a DWI. Likewise, it’s not uncommon for a judge to step aside on a case if he or she personally knows the victim.

When a judge or prosecutor’s office is recused from a case, another judge or prosecuting attorney will be appointed, often from outside the county or another region.

Here’s an overview of grounds for recusal in Texas, along with examples of when judges or a prosecutor’s offices were removed or excused from criminal cases.

What is a Recusal?

A recusal is when a judge or prosecutor is removed or relieved from a case or investigation due to a conflict of interest or other grounds.

When is Recusal Necessary?

Recusal is not something that is taken or entered into lightly. Generally speaking, recusals are required when a judge, prosecutor (or prosecutor’s office) has a personal interest or professional relationship with parties involved in the matter.

The Basics of Judicial Recusal

For judges, grounds for removal are governed by the Constitution, statute, and Texas Rules of Civil Procedure 18b. Additionally, federal recusals are subject to 28 USC 455a. Both state and federal laws say that a judge must recuse or disqualify himself in any proceeding in which his or her impartiality might be reasonably questioned. This includes the following circumstances:

• The judge has a personal bias or prejudice concerning the subject matter or a party;
• The judge has personal knowledge of disputed evidentiary facts;
• The judge served as a lawyer in private practice in the matter in controversy, or a lawyer with whom the judge previously practiced law has been a material witness concerning it;
• The judge participated as a counselor, adviser, or material witness in the matter in controversy or expressed an opinion concerning the merits of the case, while acting as an attorney in government service.
• The judge, the judge’s spouse or minor child residing in the judge’s home, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding.
• The judge or the judge’s spouses, or within the third degree of the relationship, is
  • a party to the proceeding or an officer, director or trustee of a party;
  • is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
  • to the judge’s knowledge likely to be a material witness in the proceeding.
• The judge, the judge’s spouse or a person with the first degree of the relationship to either of them, or the spouse of such person, is acting as a lawyer in the proceeding.

What If a Judge Refuses to Voluntarily Recuse?

If a state judge refuses to voluntarily step aside, a party in a case may seek to disqualify a judge who is sitting in the case by filing a motion with the clerk of the court. The motion:

• Must be verified
• Must assert one the grounds listed in Rule 18b
• Must not be based solely on the judge’s ruling in the case; and
• Must state with detail and particularity facts that they have personal knowledge about, would be admissible as evidence and, if proven, would justify recusal or disqualification.

Once a motion has been filed to recuse a judge, the judge can do two things: voluntarily recuse himself of refer the matter to another judge to decide.

If the judge declines to recuse himself, he must forward a copy of the motion to the District Administrative Judge. In Tarrant County, for example, this is the Eighth Administrative Judicial Region presided over by the Hon. David Evans. The administrative judge must then hold a recusal hearing or designate another judge to have a hearing.

If the motion is granted, then the presiding judge appoints another judge to hear the case. If it is denied, the case will proceed with the sitting judge.

Grounds for Recusal of a District Attorney

Pursuant to Code of Criminal Procedure 2.07 (b-1), a prosecutor may ask a court to relieve him of his duty to prosecute a particular case “for good cause” and with permission of the court. A prosecutor may recuse himself from a case, but a court cannot force a prosecutor to remove himself. (See Johnson v. State, 169 S.W.3d 223, 299 (Tex. Crim. App. 2008), noting a trial court has no authority to force a recusal.”

There are certain grounds that allow a district court to remove an elected district attorney: 1) incompetency; (2) official misconduct; or (3) intoxication. “Official misconduct” means intentional, unlawful behavior relating to official duties by an officer entrusted with the administration of justice or the execution of the law.

A court may also disqualify a district attorney for a conflict of interest that rises to the level of a due process violation. (Landers v. State, 256 S.W.3d 295 (Tex. Crim. App. 2008).

Notice the required recusal threshold is nowhere near the aspirational standard set forth by the American Bar Association. The ABA suggests, “the prosecutor should avoid an appearance of impropriety in performing the prosecution function.”

Recusing or disqualifying prosecutors or a prosecutor’s office is not necessarily straightforward. First of all, it’s important to point out that “recusal” and “disqualification” are two different things. Recusal refers to a prosecutor voluntarily removing themselves from a case, while disqualification refers to a prosecutor being barred by law from prosecuting the case.

Under Article 2.08 of the Texas Code of Criminal Procedure, there are two grounds for disqualification:

• District and county attorneys shall not be of counsel adversely to the state in any case, in any court, nor shall they, after they cease to be such officers be of counsel adversely to the state in any case in which they have been of counsel for the state.
• A judge of a court in which a district or county attorney represents the State shall declare the district or county attorney disqualified for purposes of Article 2.07 on a showing that the attorney is the subject of a criminal investigation by a law enforcement agency if that investigation is based on credible evidence of criminal misconduct for an offense that is within the attorney’s authority to prosecute.

If a district attorney is not “legally disqualified” based on the above, he or she “may request the court to permit him to recuse himself in a case for good cause and upon approval by the court is disqualified.” In other words, prosecutors or the district attorney may ask a judge to recuse them to avoid violating ethical rules or the appearance of impropriety.

If a prosecutor (or prosecutor’s office) isn’t disqualified and refuses to step aside, a party can file a motion to disqualify the district attorney, but they may face an uphill battle. A trial court may not disqualify a District Attorney against his will for a conflict unless there is a due process violation, such as actual prejudice. For example, it would be inappropriate for a prosecutor to personally prosecute a defendant whom he or she previously represented while in private practice and use confidential information gleaned from the prior case against them.

If the trial court finds a due-process violation and grants the motion, another prosecutor, referred to as an Attorney Pro Tem, will be appointed to prosecute the case. If denied, the prosecutor’s office will stay on the case.

What is an Attorney Pro Tem?

Whenever an attorney for the state is considered disqualified due to absence, recusal or inability to perform his or her duties, a judge may appoint a competent attorney— or an Attorney Pro Tem — to perform the duties of the office during the absence or disqualification of the attorney for the state, according to Article 2.07 of the Texas Code of Criminal Procedure. The attorney takes an oath of office and the place of the disqualified district attorney, assuming all the DA’s powers and duties.

An Attorney Pro Tem is technically not a “special prosecutor,” although the terms are frequently used interchangeably.

What is a Special Prosecutor?

A special prosecutor is an attorney “permitted by the elected District Attorney to participate in a particular case to the extent allowed by the prosecuting attorney,” without taking the oath of office. A special prosecutor is an attorney who is not party of the District Attorney’s office but is enlisted to assist the District Attorney in a particular case. A trial court does not have to approve the appointment of a special prosecutor. (See Haywood v. State, 344 S.W.3d 454 (Tex. App.—Dallas 2011). The District Attorney’s office controls the management of the case. (See Stephens v. State, 978 S.W.2d 728 (Tex.App—Austin 1998).

Prosecutorial Recusal for Federal Prosecutors

Recusals for federal prosecutors, or their office, are governed by USAM 3-2.170, which states that they must promptly contact the General Counsel’s Office (GCO) when a conflict of interest exists or there is an appearance of a conflict of interest or loss of impartiality. If a recusal is appropriate, the United States Attorney’s Office will send a recusal request to the GCO, which will obtain necessary approvals and assist the office in arranging for a transfer of responsibility to another office or designate attorneys as a “Special Attorney” or “Special Assistant to the Attorney General.”

Examples of Recent Recusals

• In October 2016, state District Judge Roy Ferguson granted Brewster County DA Rod Ponton’s motion to recuse his office from the investigation into the disappearance into ZuZu Verk and appoint prosecutors from the Attorney General’s office as Attorneys Pro Tem. The motion, which was published on an NBC affiliate, cites “continuity in the investigation” as the reason for recusal.
• In October 2016, 54^th District Court Judge Matt Johnson denied motions to disqualify McLennan County District Attorney Abel Reyna’s office from the upcoming trials of bikers arrested in the Twin Peaks shootings. The attorney who sought the disqualification argued that Reyna had a financial interest in the outcome of the criminal trials due to the fact that he had been sued by some of the bikers, according to a Fox affiliate in Waco.
• In October 2016, a District Judge Rick Kennon recused Williamson County District Attorney Jana Duty and her assistant district attorneys from a capital murder case at Duty’s request after she spent time in jail for contempt of court for violating a gag order, according to the Austin American Statesman.
• In June, Judge Luis Aguilar granted defense attorney’s motion to disqualify Assistant District Attorney Denise Butterworth from prosecuting a triple-murder suspect on the grounds that she was present when police interviewed a 3-year-old who witnessed the killings, according to ABC-7. The DA’s Office is appealing the ruling.

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