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In re McKee, 248 S.W.3d 164 (2007).

TX: Ministerial Duties

Student Contributor: Peter J. Jannace

FACTS:   Petitioner sued former attorneys for malpractice in state district court. The judge voluntarily recused himself. The presiding judge for the administrative judicial region, who would ordinarily appoint a judge to replace the first judge also voluntarily recused. The second judge requested that the Chief Justice of the Supreme Court of Texas assign a replacement for the first judge. The Chief Justice appointed a third judge, the petitioner objected to that judge, so the Chief Justice appointed a fourth judge. Meanwhile, the first judge retired, and a fifth judge was elected to replace him. The fourth judge asked the Chief Justice to withdraw his assignment to the case. Petitioner’s ex-attorneys then moved to recuse the fifth judge, but the fifth judge declined to recuse herself and referred the matter to the presiding administrative judge (the second judge, who already recused himself) to assign a judge to hear the motion. The presiding administrative judge assigned a sixth judge to hear the recusal motion. The sixth judge granted the motion to recuse the fifth judge. The next day, petitioner wrote to the presiding administrative judge, reminding him that he had once recused himself and was therefore unauthorized to assign the sixth judge; the presiding administrative judge refused to vacate the assignment and asked the Chief Justice to assign a judge to replace the fifth judge pursuant to the sixth judge’s ruling. Petitioner filed a mandamus petition, arguing that the presiding administrative judge’s assignment of the sixth judge was void, and as a result the sixth judge’s order recusing the fifth judge was invalid.

ISSUE:   Can a judge who recused himself/herself from assigning a judge in a matter (to preside over the case in chief) subsequently change his/her mind and assign a judge (to hear a motion to recuse another judge) in that same matter?

RULING:   Yes, but only if the judge’s order states “good cause” for that action. The court went on to hold that “good cause” will ordinarily be inherent in the administrative nature of these kinds of actions, so this requirement is presumed absent “extraordinary circumstances otherwise requiring [the judge’s] recusal.”

LESSON:   Well, this is the case where the Supreme Court of Texas judicially overruled Tex. R. Civ. P. 18a(c). Relying solely on a Letter from the Chief Justice of the Supreme Court of Texas to a couple of politicians (see FN1 of the opinion), the court rendered the requirements of 18a(c) a practical nullity when a judge un-recuses himself/herself. Good cause is presumed if a judge’s function is purely ministerial (which will always be the case when the judge’s function is to assign a judge to replace a judge that recused himself/herself), and unless there are circumstances that require a judge’s recusal, a judge can recuse himself/herself, and change his/her mind at a later time and un-recuse himself/herself with impunity.  

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Posted in: Texas