David Peeples and Ray Wheless Judge David Peeples of San Antonio, left, and Ray Wheless, presiding judge of the First Administrative Judicial Region in Dallas, right.

It's not enough for litigants to say they believe a judge is unfair.

Lawyers have to bring cold, hard proof if they have a shot at unseating the judge.

Many judges in Texas will voluntary step down from a case when there's good reasons. But what happens when the judge refuses to recuse?

When lawyers persist and file motions to recuse or disqualify that judge, these motions go before Texas' regional presiding judges, or visiting judges that they appoint. Statistics from the Texas Office of Court Administration show that only 6% of 370 motions were granted in fiscal year 2019, which ran Sept. 1, 2018 to Aug. 31, 2019.

Texas Lawyer reached out to the presiding judges who handle these motions to gather their advice for attorneys who seek to recuse or disqualify trial judges.

"In general, these are hard to have granted, but good lawyers who have valid reasons are successful," said Judge Ray Wheless, who presides over the First Administrative Judicial Region in Dallas.

See the stats:

Judges Don't Like Your Recusal Requests—And There's Data to Prove It

1. Forget feelings. Focus on admissible facts.

Wheless said that one of his pet peeves is when attorneys file motions that base arguments on general beliefs about a judge's bias or prejudice.

"They have to be based on the facts that would be admissible in evidence," he advised, noting that documents help the case immensely. "They need to allege just what the judge did or said that indicates to a reasonable person the judge is not fair."

2. Don't wait.

Wheless advised attorneys to file the motions right away when there are reasons, rather than waiting and filing later in a case.

"You have to file the motion to recuse as soon as you are aware the facts exist," Wheless said.

3. Don't follow the money.

Most recusal motions based on campaign contributions—for example, claiming opposing counsel donated money to judge—will also fail, unless it's a very high contribution, or there are other factors also present that bend towards the judge's recusal, said said Senior Judge David Peeples, who served 21 years as presiding judge of the Fourth Administrative Judicial Region in San Antonio.

"Relationships can be a reason," he said, noting that he recused from a divorce case involving friends and would likely step down from cases involving attorneys who sometimes go to lunch with him. However, in rural areas where a judge may know everyone in town, the judge may have to stay on cases even when he knows a lawyer involved, Peeples added.

4. 'Extraordinary' is key.

Peeples advised attorneys not to base a motion solely on a ruling with which they disagreed. There has to be some underlying reason, outside the case, or extraordinary judicial conduct in the case, he noted.

5. If it's public, capture it.

Wheless has seen motions succeed because a judge commented on a case on Facebook. If that happens, he told attorneys to attach a screenshot of the judge's post to their recusal motions.

"We've had some granted because of things that were said in the public arena," Wheless said. "Also, whenever external factors come to bear in the judge's decision, that's been a basis for the judge's recusal also."

6. Ask around.

Even with a chance of denial, lawyers 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 the case, said Austin solo practitioner Lillian Hardwick.

Before pressing a motion to recuse, a lawyer should talk with one or two other lawyers, who aren't close to the case, to explain the situation with the judge in the case, and get their opinions on whether there is a real basis for recusal, Peeples said.

7. Present first-hand proof of fear.

The motions only succeed when there's a real concern—backed by evidence—that shows a reasonable person could conclude the judge couldn't be fair in the case, Peeples noted. The evidence can come in the form of documents, or testimony from a witness with first-hand knowledge of the issue.

 8. Note comments from the bench.

Peeples has also granted motions because of statements judges made on the bench. In one such case, a judge—who thought an attorney had said something untrue in court—had said he could never again believe that lawyer.

"There was no question that the judge said it," Peeples said. "I thought it was enough to recuse that judge."