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.
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.
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.
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:
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:
Once a motion has been filed to recuse a judge, the judge can do two things: voluntarily recuse himself or 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.
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.
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:
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.
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.
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).
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.”
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