Texas Legal Ethics, Recusal, and Judicial Disqualification Cases

motion to recuse | recusal | disqualification | motion to disqualify | conflict of interest | bias | partiality |
attorney discipline | disciplinary complaint | sanction | public private reprimand | suspension | disbarment |
disqualify |

2009-2008-2007 Disciplinary Proceedings |
Disqualification, Ethics, and Recusal Cases

Onwuteaka v. Commission for Lawyer Discipline (Tex. App. – Houston [14th Dist.] Mar. 12, 2009)(Hedges)
(attorney disciplinary proceeding, grievance)
AFFIRMED: Opinion by Chief Justice Hedges
Before Chief Justice Hedges, Justices Guzman and Brown
14-07-00544-CV Joseph Onwuteaka v. Commission for Lawyer Discipline
Appeal from 151st District Court of Harris County
Judge not shown on docket sheet

In Re Murphy (Tex. App. – Houston [14th Dist.] Mar. 5, 2009)(Yates)
(attorney disqualification order set aside by mandamus)
MOTION OR WRIT GRANTED: Opinion by Justice Brock Yates
Before Justices Brock Yates, Seymore and Boyce
14-08-01017-CV In Re Michelle E. Murphy
Appeal from Probate Court of Galveston County
Trial Court Judge: Gladys Burwell

In Re Murphy (Tex. App. – Houston [14th Dist.] Mar. 5, 2009)(Yates)
(attorney disqualification order set aside by mandamus)
MOTION OR WRIT GRANTED: Opinion by Justice Brock Yates
Before Justices Brock Yates, Seymore and Boyce
14-08-01017-CV In Re Michelle E. Murphy
Appeal from Probate Court of Galveston County
Trial Court Judge: Gladys Burwell

Gonzalez v. In the Estate of Gonzalez (Tex.App. - Houston [14th Dist.] Sep. 30, 2008)(Yates)
(recusal order void, signed by judge while motion to recuse was pending)
REVERSED AND REMANDED: Opinion by Justice Brock Yates
Before Justices Brock Yates, Guzman and Brown
14-07-00047-CV        Miguel Angel GonzalezGuilbot, Carlos A. Gonzalez Guilbot, and Maria Rosa Del
Arena De Gonzalez v. In the Estate of Miguel Angel Luis Gonzalez Y Vallejo
Appeal from Probate Court No 2 of Harris County
Trial Court Judge: Michael James Wood

Praise Tabernacle Outreach v. The Restoration Financial Group
(Tex.App.- Houston [14th Dist.] July 29, 2008)(Guzman) (Church breach of contract, disqualification of
counsel)
AFFIRMED: Opinion by Justice Guzman
Before Justices Brock Yates, Guzman and Brown
14-06-01055-CV        Praise Tabernacle Outreach & Family Worship Center and Reflections of Christ's
Kingdom v. The Restoration Financial Group, Inc. and Felecia W. Ward
Appeal from County Court at Law No 2 & Probate Court of Brazoria County

In the Estate of G aines (Tex.App.- Houston [14th Dist.] July 1, 2008)(Anderson) (probate matter estate,
disqualification of independent executor of estate proper, unsuitable person)
AFFIRMED IN PART/REVERSED AND RENDERED: Opinion by Justice Anderson
Before Justices Brock Yates, Anderson and Brown
14-07-00257-CV In the Estate of Margaret Lynn Gaines, Deceased
Appeal from County Court at Law No 1 & Probate Court of Brazoria County
Trial Court Judge: Jerry Lee Mills
Under section 78 the court may disqualify a person from serving as an executor if the court finds that
person "unsuitable." Tex. Prob. Code Ann. ' 78(e) (Vernon 2003); see Olguin, 931 S.W.2d at 609
(holding the provision disqualifying unsuitable persons from serving as executor applies to the
appointment of an independent executor); Alford, 601 S.W.2d at 410 (applying section 78 to qualification
of an independent executor). No comprehensive, discrete explanation exists delineating the attributes
which make someone unsuitable. Olguin, 931 S.W.2d at 610; see Boyles v. Gresham, 158 Tex. 158, 161-
63, 309 S.W.2d 50, 53-54 (1958) ("Neither the Model Code nor the Texas Probate Code purports to
define 'unsuitable,' and we shall not attempt here to define it."). The trial court has broad discretion in
determining whether an individual is "suitable" to serve as an executor. Kay v. Sandler, 704 S.W.2d 430,
433 (Tex. App.- Houston [14th Dist.] 1985, writ ref'd n.r.e.).

In Re George R. Neely (Tex.App.- Houston [14th Dist.] June 26, 2008)(per curiam)
(mandamus denied in attorney disbarment case)
MOTION OR WRIT DENIED: Per Curiam
Before Chief Justice Hedges, Justices Fowler and Boyce)
14-08-00525-CV        In Re George R. Neely
Appeal from 164th District Court of Harris County
Judge: Jack H. Robison, assigned judge

In Re: Hoar Construction, LLC (Tex.App.- Houston [14th Dist.] May 29, 2008)(Fowler) (attorney properly
disqualified, mandamus denied)
MOTION OR WRIT DENIED: Opinion by Justice Fowler
Before Justices Brock Yates, Fowler and Guzman
14-07-00666-CV In Re: Hoar Construction, LLC; Landry's Management, LP; Landry's Restaurant, Inc.;
Hospitality Headquarters, Inc.; and St. Paul Fire and Marine Insurance Company
Appeal from 61st District Court of Harris County
Trial Court Judge: John P. Donovan
In this original proceeding, relators seek mandamus relief from an order disqualifying their counsel of record from
representing them in the trial court. We conclude that the trial court did not abuse its discretion when it disqualified the
lawyers pursuant to Rule 1.09(a)(2) of the Texas Disciplinary Rules of Professional Conduct because a reasonable
probability exists that confidential information will be revealed. We also conclude that the real party in interest, First Victoria
National Bank, did not waive its right to seek disqualification. For these reasons, we deny relators' petition for writ of
mandamus.

Vasquez v. Hildenbrand (Tex.App.- Houston [1st Dist.] Apr. 24, 2008)(Keyes)
[auto PI, negligence, recusal motion denied]
AFFIRM TC JUDGMENT: Opinion by Justice Keyes
Before Justices Taft, Keyes and Alcala
01-06-01067-CV Nancy Vasquez v. Brenda Hildenbrand
Appeal from County Civil Court at Law No 1 of Harris County
Trial Court Judge: Hon. Jack Cagle

The discretion vested in the trial court over the conduct of a trial is great. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 240 (Tex. 2001). A trial
court has the authority to express itself in exercising this broad discretion. Id. at 240-41. Opinions the judge forms during a trial do not
necessitate recusal unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Liteky v. United
States, 510 U.S. 540, 555, 114 S. Ct. 1147, 1157 (1994). Judicial remarks during the course of a trial that are critical or disapproving of, or
even hostile to, counsel, the parties, or their cases ordinarily do not support a bias or partiality challenge. Id. Expressions of impatience,
dissatisfaction, annoyance, or anger do not establish bias. Id. at 555-56, 114 S. Ct. at 1157. Such remarks may constitute bias if they reveal
an opinion deriving from an extrajudicial source; however, when no extrajudicial source is alleged, such remarks will constitute bias only if
they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible. See Ludlow v. DeBerry, 959 S.W.2d 265,
271 (Tex. App.--Houston [14th Dist.] 1997, no writ).

To reverse a judgment on the ground of improper conduct or comments of the judge, we must find (1) that judicial impropriety was in fact
committed and (2) probable prejudice to the complaining party. Metzger v. Sebek, 892 S.W.2d 20, 39 (Tex. App.--Houston [1st Dist.] 1994,
writ denied).

The record shows that most of the alleged acts of misconduct concern events that happened outside the presence of the jury. Thus, although
Vasquez argues that the "[c]ourt's admonitions, accusations, derogations, and theatrics couched in patriotic and religious displays directed
against [Vasquez's] counsel throughout the trial, influenced the jury to view [Vasquez] and her counsel as outsiders," the record shows that the
jury could not have been influenced by the trial court's actions because most of the actions happened outside the presence of the jury. For
the remaining allegations of misconduct, the record shows that Vasquez did not assert any objections to what she now complains of on
appeal. Thus, her complaints are waived. See Tex. R. App. P. 33.1. Moreover, we have examined the entire record and conclude that
Vasquez has failed to demonstrate judicial impropriety that resulted in harmful error. And, as in Metzger, we decline to unnecessarily
lengthen this opinion with a review of each exchange Vasquez identifies in her brief, because no useful purpose would be served by doing
so. See Metzger, 892 S.W.2d at 39.

We overrule Vasquez's seventh issue on appeal.

Substitution of Counsel: The Client is King - Sacked attorney had no standing to file TRCP 12 motion
against replacement counsel, client may fire attorney without attorney's consent

Texas Supreme Court issues opinion on denial of petition for mandamus
relief involving recusal issues

In re McKee, MD, No. 06-0055 (Tex. Nov. 30, 2007)(per curiam)(ethics law, recusal of judge,
administrative order)
The record does not present any reason—much less an extraordinary one—requiring Judge Ovard’s
initial recusal; nor does it reflect a ground for precluding his administrative assignment to another judge.
While we agree that Rule 18a(c) compels Judge Ovard, who recused initially, to state good cause for later
assigning Judge Kupper, “good cause” will ordinarily be inherent in the administrative nature of that
assignment.[1] We decline to issue mandamus because, unless there are extraordinary circumstances
otherwise requiring Judge Ovard’s recusal, he need only revise his order to state that his assignment of
Judge Kupper is a purely administrative act.
Accordingly, we deny Dr. McKee’s petition for writ of mandamus.

Trial Court should not have made ruling while motion to recuse was pending
Riga v. Commission for Lawyer Discipline (Tex.App.-Houston [1st Dist.] May 10, 2007)(Nuchia)
[recusal motion, order signed while motion pending found void, exception did not apply]
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Nuchia
Before Justices Nuchia, Keyes and Higley
01-06-00239-CV Peter J. Riga and Michael Easton v. Commission for Lawyer Discipline
Appeal from 151st District Court of Harris County (Judge Fowler)
The court of appeals finds that the trial court judge should have taken no action after referring motion to
recuse to the administrative judge. Order found void. Good cause exception did not apply.
Rather than addressing the jurisdictional issue, the court of appeals reverses the judge's order on the
plea to the jurisdiction, and remands.

Recusal motion was filed with wrong clerk, and was thus not pending when judge ruled
Harris v. Winston (Tex.App.- Houston [1st Dist.] May 24, 2007)(Alcala)
[life insurance proceeds, interpleader, motion to recuse filed with wrong clerk]
AFFIRM TC JUDGMENT: Opinion by Justice Alcala
Before Justices Taft, Jennings and Alcala
01-05-00962-CV        William Francis Harris v. Antionette Richardson Winston
Appeal from Probate Court of Galveston County (Judge Hon. Gladys B. Burwell)

Riga v. Commission for Lawyer Discipline (Tex.App.-Houston [1st Dist.] May 10, 2007)(Nuchia)

The record establishes that Judge Fowler was aware that a second motion to recuse was pending when he signed the
March 1, 2006 order granting the plea to the jurisdiction.

Texas Rule of Civil Procedure 18a(c) requires a judge who declines to recuse to forward the recusal motion to the
presiding judge of the administrative judicial region. (2) Judge Fowler did this. However, Rule 186a(c) further requires that
the trial judge may make no further orders and take no further action prior to a hearing on the forwarded motion. The only
exception provided by the Rule is if the further order states good cause for ruling notwithstanding the pending recusal
motion. Here, the order granting the plea to the jurisdiction does not refer in any way to the pending recusal motion, much
less state good cause for why the order was signed when the recusal motion was pending. Accordingly, the March 1, 2006
order is "void" because it was signed in violation of Rule 18a. See Hudson v. Tex. Children's Hosp., 177 S.W.3d 232, 236-
37 (Tex. App. -- Houston [1st Dist.] 2005, no pet.).

In Re Miguel Angel Gonazales Guilbot (Tex.App.- Houston [14th Dist.] Mar. 27, 2007)(per curiam)
(recusal of probate judge)
MOTION OR WRIT DENIED: Per Curiam
Before Chief Justice Hedges, Justices Fowler and Edelman
14-07-00031-CV        In Re: Miguel Angel Gonazales Guilbot
Appeal from Probate Court No 2 of Harris County
Trial Court Judge: Guy S. Herman

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Opinion issued May 10, 2007

In The

Court of Appeals

For The

First District of Texas

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NO. 01-06-00239-CV

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PETER J. RIGA AND MICHAEL EASTON, Appellants

V.

COMMISSION FOR LAWYER DISCIPLINE, Appellee

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On Appeal from the 151st District Court

Harris County, Texas

Trial Court Cause No. 2005-06483

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O P I N I O N

In this interlocutory appeal, the district court granted a plea to the jurisdiction and held that, in a
disciplinary action against a lawyer, the district court has no subject-matter jurisdiction over issues and
parties not contemplated by the Texas Rules of Disciplinary Procedure. See Tex. Civ. Prac. & Rem. Code
Ann. § 51.014(a)(8) (Vernon Supp. 2006) (allowing interlocutory appeal). The district court's March 1,
2006 order dismissed all other parties to the disciplinary action other than appellee, the Commission for
Lawyer Discipline, and appellant Peter J. Riga. Appellants Michael Easton and Riga appeal. We reverse.

Background

The Commission brought a disciplinary action against Riga, alleging that Riga violated provisions of the
Texas Disciplinary Rules of Professional Conduct and that Riga assisted Easton, his legal assistant, in the
unauthorized practice of law. Pursuant to Texas Rule of Disciplinary Procedure 3.02, the supreme court
appointed the Honorable Craig Fowler, judge of the 255th District Court of Dallas County, to preside over
the disciplinary action. Easton filed a plea in intervention, bringing claims against Pamela Halliburton, the
Commission's lawyer, and Suzanne Ross, a member of one of the State Bar's grievance committees. Riga
filed counterclaims against the State Bar of Texas, the Commission, and Halliburton, seeking monetary
damages under title 42, United States Code, section 1983 and sanctions under state law. Easton later
filed a motion to recuse Judge Fowler.

The State Bar, the Commission, Halliburton, and Ross filed a plea to the jurisdiction in which they argued
(1) that Judge Fowler's appointment order did not authorize him to preside over any parties or claims
other than the disciplinary action brought by the Commission against Riga and (2) that the district court
lacked subject-matter jurisdiction over parties and claims outside the disciplinary action. Before taking
action on the motion to recuse, Judge Fowler granted the plea to the jurisdiction on May 25, 2005. That
order was not appealed.

In November 2005, Judge Fowler referred Easton's motion to recuse to the presiding judge of the
administrative judicial region, who later denied the motion. Acting in "an abundance of caution" after the
denial of the motion to recuse, the State Bar, the Commission, Halliburton, and Ross asked the district
court to reconsider its plea to the jurisdiction. Before the district court signed a second order on March 1,
2006 granting the plea to the jurisdiction, Riga and Easton on February 20, 2006 filed another motion to
recuse Judge Fowler. The district court's March 1, 2006 order does not mention the pending recusal
motion, but in a separate order on March 1, 2006, the district court referred the recusal motion to the
presiding judge of the administrative judicial region. The record does not reflect the ultimate disposition of
the recusal motion.

Discussion

Riga and Easton bring two issues. The first challenges the district court's action in ruling on the plea to
the jurisdiction while the recusal motion was pending. The second challenges the merits of the order, in
which Riga and Easton argue that the district court as a court of general jurisdiction had subject-matter
jurisdiction over the matters concerning the other parties and claims. (1)

The record establishes that Judge Fowler was aware that a second motion to recuse was pending when
he signed the March 1, 2006 order granting the plea to the jurisdiction. Texas Rule of Civil Procedure 18a
(c) requires a judge who declines to recuse to forward the recusal motion to the presiding judge of the
administrative judicial region. (2) Judge Fowler did this. However, Rule 186a(c) further requires that the
trial judge may make no further orders and take no further action prior to a hearing on the forwarded
motion. The only exception provided by the Rule is if the further order states good cause for ruling
notwithstanding the pending recusal motion. Here, the order granting the plea to the jurisdiction does not
refer in any way to the pending recusal motion, much less state good cause for why the order was signed
when the recusal motion was pending. Accordingly, the March 1, 2006 order is "void" because it was
signed in violation of Rule 18a. See Hudson v. Tex. Children's Hosp., 177 S.W.3d 232, 236-37 (Tex. App.
--Houston [1st Dist.] 2005, no pet.).

The Commission argues that, even if Judge Fowler erroneously signed the March 1, 2006 order, the
dismissal was proper on the grounds of governmental immunity. This argument was not raised in the plea
to the jurisdiction, and we decline to address it before this ground is presented to the trial court.
Accordingly, we sustain issue one. We do not reach issue two, concerning the scope of the district court's
jurisdiction over matters not directly related to the Commission's disciplinary action against Riga.

Conclusion

We reverse the March 1, 2006 order granting the plea to the jurisdiction. We do not render an order in its
place because the trial court should not have taken action until the forwarded recusal motion was heard
pursuant to Texas Rule of Civil Procedure 18a(d). The Clerk of this Court is directed to issue the mandate
immediately. See Tex. R. App. P. 18.6. This opinion is to be published in the official reporter system
pursuant to Texas Rule of Disciplinary Procedure 6.06.

Sam Nuchia

Justice

Panel consists of Justices Nuchia, Keyes, and Higley.

1. Riga and Easton draw a distinction between whether the district court has subject-matter jurisdiction to
hear the matters concerning the other parties and claims, as opposed to whether it would be error for the
district court to litigate those matters in a disciplinary action.

2. Texas Rule of Civil Procedure 18a refers to the presiding judge of the administrative judicial district,
rather than the administrative judicial region. The legislature created administrative judicial regions. Tex.
Gov't Code Ann. § 74.042 (Vernon 2005). The term "administrative judicial region" is used in the Rules of
Judicial Administration, Texas Rule of Civil Procedure 3a, and Texas Parental Notification Rule 2.2(d).
The term "administrative judicial district" is used in Texas Rule of Civil Procedure 18a, Rule of Disciplinary
Procedure 3.02, and Standards and Rules for Certification of Certified Shorthand Reporters section IV
(O). The difference in terms is immaterial.