The Origins and Development of Judicial Recusal in Texas

Abstract

Abstract In 21st century Texas, a judge’s decision to recuse from a case is based on a complex set of norms, codes and procedures intended to promote impartiality. For most of the state’s history, however, the sole ground for the removal of a judge from a case was not recusal for bias but disqualification based on rigid conditions set out in the Texas Constitution. This article examines the foundations and emergence of the modern concept of judicial recusal in Texas with the intent to illustrate a shift from rigid constitutional grounds to a more fluid approach based on judicial interpretation of a code of conduct. The author concludes that while Texas disqualification and recusal jurisprudence is conservative and restrained, it remains to be seen whether this restraint can continue unchanged in a post-Caperton era. The Caperton probability of bias standard has become part of the dialogue on recusal and disqualification in Texas, but Caperton-based challenges are unlikely to prevail in the near future because many members of the bench and bar share the belief that the state’s judicial campaign contribution restrictions and recusal jurisprudence create a firewall against violations of the Due Process Clause. The risk, however, is that continued resistance to change may further erode public confidence in existing ethical safeguards and fall short of assuaging concerns that wealthy donors continue to exercise disproportionate influence on the judiciary.