empty judicial bench (Photo: Shutterstock.com)

Editor's note: This is the first story in a two-part series.

Lawyers might hesitate to file motions to recuse or disqualify judges, and for good reason: The numbers show they'll likely lose.

Statistics from the Texas Office of Court Administration show a large number of judges voluntarily recuse or disqualify themselves from cases. But when judges don't go willingly and lawyers press the issue, the vast majority refuse to step down from cases in front of them.

When a judge agrees he or she can't hear a case, getting a new judge is easy: Voluntary recusals or disqualifications of a judge accounted for 35% of the more than 7,000 new judge assignments made in Texas in fiscal year 2019, the data show.

However, when a judge resists stepping down, the odds of winning a motion to recuse or disqualify are slim.

Of the 370 such motions filed across Texas during fiscal year 2019, only 20—or about 6%— succeeded. And nearly half—39%—met their end without hearings, while judges denied the remaining 56% after a hearing.

"Lawyers are reluctant to file them, and only file them as a last resort," said Judge Ray Wheless, who handles recusal or disqualification motions as presiding judge of the First Administrative Judicial Region, which includes Dallas County. "They know if a motion to recuse is denied, they are still going to be in front of that judge. That's something they really have to think about."

This data from the Texas Office of Court Administration covers state fiscal year 2019, which ran Sept. 1, 2018 to Aug. 31, 2019. Graphic: Angela Morris/ALM

 

It's common for judges to recuse or disqualify themselves voluntarily, according to the data.

During fiscal year 2019, which ran from Sept. 1, 2018 to Aug. 31, 2019, regional presiding judges made 1,794 judge assignments to benches where a judge recused voluntarily, which represents 25% of the total  judge assignments of the fiscal year.

Another 10%, or 675 assignments, went to benches where judges disqualified themselves voluntarily, which represents 10% of the total assignments.

Some of the voluntary recusals and disqualifications may have been prompted when a lawyer raised issues against a judge in a motion, said Lillian Hardwick, an Austin judicial ethics solo practitioner.

Even with a chance of denial, lawyers nevertheless file the motions because otherwise, they may face legal malpractice accusations from a client who argues that their attorney knew about grounds to recuse a judge, failed to do so, and it harmed a client's case, she said.

This data from the Texas Office of Court Administration covers state fiscal year 2019, which ran Sept. 1, 2018 to Aug. 31, 2019. Graphic: Angela Morris/ALM

The terms "recusal" and "disqualification" are often used interchangeably, but under Texas law, they're different, Hardwick said.

Judges are disqualified from hearing a case if they previously represented a party, are related to a party, have a financial interest in the outcome of the case or harbor a bias or prejudice so great that it would hinder due process, said Hardwick, who often serves as an expert witness in judicial recusal or disqualification hearings.

The same grounds apply to recusal, where other grounds also include if the evidence shows the judge's impartiality may reasonably be questioned, or if the judge has shown a personal bias or prejudice about the case's subject matter or a party, among other things.

The big difference between recusal and disqualification is what happens once the judge is off the case.

With recusal, the removed judge's rulings stand, and the new judge handles matters from then on. Meanwhile, disqualification equals erasure.

"Everything the judge has done is eliminated, and you start over," Hardwick said.

So how do lawyers get judges to step down? The second story in this series will provide advice from judges.