In Texas, a judge may be removed from a case because he is constitutionally disqualified, subject to a
statutory strike, or recused. See id. The grounds and procedures for each type of removal are
fundamentally different. Id. The pertinent standard for recusal is that a "judge shall recuse himself in any
proceeding in which: (a) his impartiality might reasonably be questioned." See Tex. R. Civ. P. 18b(2).
Recusal must be preserved for appeal or it is waived. Buckholts Indep. School Dist. v. Glaser, 632 S.W.2d
146, 148 (Tex. 1982); McElwee v. McElwee, 911 S.W.2d 182, 185-86 (Tex. App.--Houston [1st Dist.] 1995,
writ denied). In contrast to recusal, "any orders or judgments rendered by a judge who is constitutionally
disqualified are void and without effect." In re Union Pac. Res. Co., 969 S.W.2d at 428.
In establishing the grounds for judicial disqualification, the Texas Constitution states, "No judge shall sit in
any case . . . when the judge shall have been counsel in the case." Tex. Const. art. V, § 11. Judicial
disqualification is also addressed in the Texas Rules of Civil Procedure, which provide that,
Judges shall disqualify themselves in all proceedings in which: (a) they have served as a lawyer in the
matter in controversy, or a lawyer with whom they previously practiced law served during such association
as a lawyer concerning the matter . . . .
Tex. R. Civ. P. 18b(1)(a). Rule 18b(1)(a)'s reference to the "same matter in controversy" is synonymous
with the Texas Constitution's reference to "the case." Tesco Am., Inc. v. Strong Indus., Inc., 221 S.W.3d
550, 553 (Tex. 2006) (rule 18b(1)(a) "was intended to expound rather than expand the Constitution");
Slaven v. Wheeler, 58 Tex. 23, 25 (1882).
The same "matter in controversy" must be involved, regardless of whether the same lawsuit is involved. In
re O'Connor, 92 S.W.3d at 449. As the Supreme Court of Texas states,
By its own terms, rule 18b(1)(a) is not limited to disqualifying a trial judge only when the "same lawsuit" is
involved. Rather, in plain language, rule 18b(1)(a) requires disqualification when the same "matter in
controversy" is involved.
Id. (citing Tex. R. Civ. P. 18b(1)(a)). The assessment of whether a matter in controversy is similar or the
same must be performed with great care, as noted by the Supreme Court of Texas:
Where the constitution has only prescribed that the judge's professional connection with the case, in the
single instance where he has been "of counsel in the cause," shall disqualify him from presiding upon its
trial, we cannot undertake to say that his professional connection with a similar cause or one involving the
same questions shall have that effect. If we depart from the plain language of the constitution, we shall be
left without a rule for our guidance, and shall countenance a laxity of construction that may prove both
dangerous and inconvenient.
Taylor v. Williams, 26 Tex. 583, 586-87 (1863).
In summary, a judge is disqualified when two prongs are met: first, the judge or the judge's law firm was the
attorney for a party in the case, and second, the matter before the judge is the same matter that was
before the judge or judge's law firm. See In re O'Connor, 92 S.W.3d at 448. A judge will not be disqualified
if only prong one applies. City of Austin v. Cahill, 89 S.W. 552, 552 (Tex. 1905) (judge who has previously
represented one party currently before him on different matter is not disqualified.). Nor will a judge be
disqualified if only prong two applies. See Glasscock v. Hughes, 55 Tex. 461, 468-69 (1881) (fact that
judge has "been connected as counsel at one period with the matters, or a portion of them" does not
disqualify him); Matlock v. Sanders, 273 S.W.2d 956, 957-58 (Tex. Civ. App.--Beaumont 1954, no writ)
(judge not disqualified even if, as attorney, he previously gave his opinion in regard to validity of title to
land in controversy before him, when controversy concerns different parties than any of those previously
represented by judge); Butts v. Davis, 149 S.W. 741, 742 (Tex. Civ. App.--Amarillo 1912, no writ) (judge
who "long prior to the institution of the suit" had rendered legal advice on similar matter to lawsuit he
currently presided over should not be disqualified because it "in no way involved this action."). Therefore,
both prongs must be present for a judge to be disqualified.
In Re Wilhite (Tex.App.- Houston [1st Dist.] Sep. 25, 2009)(en banc opinion by Alcala) (mandamus to
remove judge on claim of disqualification denied)(judicial disqualification)(asbestos litigation)
DENY PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Alcala
Before Justices Jennings, Alcala and Higley
01-09-00387-CV In Re Edward and Margie Wilhite
Appeal from 11th District Court of Harris County
Trial Court Judge: Judge Mark D. Davidson
Dissenting Opinion by Justice Jennings re disqualification of judge from asbestos case