Opinion
No. 02-03-054-CV.
DATED: July 3, 2003.
Appeal from the 48th District Court of Tarrant County.
For Appellants: William Rittenhouse of Austin, Texas and F. Dean Armstrong of Floosmoor, Illinois.
For Appellees: Bourland, Kirkman, Seidler Evans, LLP, and David Evans of Fort Worth, Texas and John C. Adams, Asst. Atty. Gen. for the State of Texas of Austin, Texas.
EN BANC: HOLMAN and WALKER, JJ., Recused.
ORDER
Appellants, The Cadle Company and Daniel C. Cadle, are appealing from a turnover order signed by the 48th Judicial District Court of Tarrant County, Texas on November 27, 2002. The turnover order grants applications for turnover, for the benefit of David B. Lobingier and the State of Texas, of certain claims, causes of action, and property owned by The Cadle Company, in order to satisfy prior judgments against Appellants. The order further grants permanent injunctive relief against The Cadle Company and its officers, directors, shareholders, and employees, including Daniel C. Cadle, to maintain the status quo as to the subject claims, causes of action, and property. The turnover order also orders Daniel C. Cadle to execute all documents and assignments necessary to effectuate the order. The Cadle Company filed its notice of appeal from the turnover order on February 21, 2003. Daniel C. Cadle filed a notice of appeal on February 27, 2003. The clerk's record was filed in this court on March 26, 2003. An amended reporter's record was filed on June 23, 2003. Briefing deadlines have not yet been set nor has the case been set for submission. Currently pending before this court is "Appellants' Motion to Recuse Justices of the Second Court of Appeals and Transfer Case," filed on May 13, 2003.
Appellants' motion seeks recusal of all justices of this court and transfer of this case to another court of appeals based upon: (1) this court's alleged "financial interest" in the portion of the turnover order that benefits the State of Texas; (2) an alleged "appearance of impropriety" that will arise if the justices of this court decide the appeal because two of the justices have been named as defendants in federal lawsuits filed by Appellants; and (3) an alleged bias against Appellants as shown by prior rulings by this court adverse to Appellants.
Recusal of appellate justices or judges is governed by Rule 16 of the appellate rules. Tex.R.App.P. 16. The grounds for recusal of an appellate justice or judge "are the same as those provided in the Rules of Civil Procedure." Tex.R.App.P. 16.2. Those grounds are set forth in Rule 18b of the Texas Rules of Civil Procedure and require, as pertinent here, that a judge shall recuse himself or herself "in any proceeding in which [the judge's] impartiality might reasonably be questioned"; when the judge has a "personal bias or prejudice concerning the subject matter or a party"; or when the judge knows that he or she, individually or as a fiduciary, "has a financial interest in the subject matter in controversy." Tex.R.Civ.P. 18b(2)(a), (b), (e).
Rule 18a of the Texas Rules of Civil Procedure requires that a motion for recusal "shall be verified," and must be made on personal knowledge and set forth such facts as would be admissible in evidence, except that facts may be stated upon information and belief if the grounds for such belief are specifically stated. Tex.R.Civ.P. 18a(a). Appellants' motion to recuse is not verified nor does it affirmatively state whether facts set forth in the motion are based upon personal knowledge or information and belief. If a party does not comply with the mandatory requirements of Rule 18a in the trial court, he waives his right to complain of a judge's refusal to recuse himself. Gill v. Tex. Dep't of Criminal Justice, 3 S.W.3d 576, 579 (Tex.App.-Houston [1st Dist.] 1999, no pet.); McElwee v. McElwee, 911 S.W.2d 182, 186 (Tex.App.-Houston [1st Dist.] 1995, writ denied). We have proceeded to hear the motion in absence of definitive language in the appellate rules or case law providing guidance as to whether the requirement of verification applies to motions in the appellate courts. See Woodruff v. Wright, 51 S.W.3d 727, 735 (Tex.App.-Texarkana 2001, pet. denied) (proceeding to hear motion filed in trial court although it was not verified as required by rule 18a).
Rule 16.3 of the Texas Rules of Appellate Procedure prescribes the procedure to be followed for recusal of an appellate judge or justice:
Before any further proceeding in the case, the challenged justice or judge must either remove himself or herself from all participation in the case or certify the matter to the entire court, which will decide the motion by a majority of the remaining judges sitting en banc. The challenged justice or judge must not sit with the remainder of the court to consider the motion as to him or her.
Tex.R.App.P. 16.3(b).
Pursuant to the procedure set forth in Rule 16.3, upon the filing of the recusal motion and prior to any further proceedings in this appeal, each of the seven duly elected justices of this court considered the motion in chambers. Id. Justices Dixon Holman and Sue Walker recused themselves because of prior participation in related proceedings in the trial court. Chief Justice John Cayce and Justices Sam Day, Terrie Livingston, Lee Ann Dauphinot, and Anne Gardner each found no reason to recuse themselves and certified the issue in writing to the entire court. Id.; see McCullough v. Kitzman, 50 S.W.3d 87, 88 (Tex.App.-Waco 2001, pet. denied). This court then decided the motion with respect to each remaining challenged justice by a vote of the other remaining justices sitting en banc. See McCullough, 50 S.W.3d at 88 (citing Manges v. Guerra, 673 S.W.2d 180, 185 (Tex. 1984)). No challenged justice sat with the remainder of the court when his or her challenge was considered. Tex.R.App.P. 16.3(b); McCullough, 50 S.W.3d at 88.
Determination as to whether recusal is necessary must be made on a case-by-case, fact-intensive basis. McCullough, 50 S.W.3d at 89. As to each of the challenged justices who certified the issue to the entire court, a majority of the remaining justices of this court found no reason to recuse the justice under consideration. Tex.R.App.P. 16.2, 16.3(b)(2); Tex.R.Civ.P. 18b(2). Accordingly, Appellants' motion to recuse the remaining five justices of this court and to transfer this case to another court of appeals is denied.