Opinion No. 172 (1994)

QUESTION: Should the judge of a municipal court recuse himself from presiding over the trial of cases of a Defendant who has civil actions pending against the judge in state and federal courts?

FACTS: The question is submitted by an attorney in private practice who also serves as a part-time municipal court judge. In the municipal court over which he presides, there are a number of pending complaints against an individual who has named the judge as a party, along with a number of others, in state and federal lawsuits. There is some indication that the judge may have been added as a party defendant in the civil actions to secure his recusal from the municipal court cases.

ANSWER: Since this is a recusal question, there is a threshold issue which the Committee must address. Since the adoption of Tex. R. Civ. P. 18a and 18b and the companion Tex. R. App. P. 15 and 15a, the Committee has not responded to questions regarding recusal. See Opinion No. 127 (1989). The facts presented by this inquiry, though, require that a limited exception to this rule be established. The judge presides over a municipal court, and it appears that no statute or rule of court specifically applies to recusal. For instance, Tex. R. Civ. P. 2 provides that the rules govern procedure "in the justice, county, and district courts of the State of Texas in all actions of civil nature, with such exceptions as may be hereafter stated." The judge in question presides over a municipal court, and the question submitted does not involve actions of a civil nature but rather actions of a criminal nature. There appears to be no provision of the Code of Criminal Procedure directly governing this matter. Tex. Code Crim. P. Ann. art. 30.01 deals with disqualification but does not appear to apply to this case. It seems that the specific question regarding recusal is not governed by any statute or rule of court. Since the reason for the Ethics Committee's reluctance to deliver opinions on recusal issues does not exist in this case, we conclude that we should proceed to render an opinion.

Canon 2A* provides that a judge should act in a way that promotes public confidence in the integrity and impartiality of the judiciary . Canon 2B provides that a judge should not allow "family, social, or other relationships to influence his or her judicial conduct or judgment." While not directly governing the issue, the spirit of Rule 18b(2), which provides that a judge shall recuse himself in any proceeding in which his impartiality might reasonably be questioned, has applicability here. Consequently, it is the conclusion of the Committee that the judge should recuse himself. Procedural mechanisms which might effectively deal with the problem of a party making a practice of naming a judge and his successors as party defendants for the sole purpose of securing a recusal are beyond the scope of this Committee's authority.

*All Canon references are to the Code of Judicial Conduct effective March 1, 1994.