Judge Eric Moyé of the 14th District Court on Thursday declined to recuse himself in the lawsuit against Dallas salon owner Shelley Luther.

Luther and her company, Salon a la Mode, had asked Moyé to recuse himself Wednesday in the case she's defending against the city of Dallas, which alleged that Luther defied COVID-19 orders to open her business early.

The recusal motion filed Wednesday alleged that Moyé had a "pre-existing bias towards anyone who protested stay-at-home orders."

Eric Moye Judge Eric Moye of Dallas County's 14th District Court. Courtesy photo.

Moyé wrote a Facebook post, linking to an article of a woman who organized a protest against stay-home orders, and later tested positive for COVID-19. Moyé's post said, "I am SO in love with that Lady named Karma," the motion said. The post is gone now, the filing added.

Luther claimed that the post showed "a personal bias or prejudice concerning the subject matter when he expressed disgust with the conduct of government lockdown protestors."

After denying the recusal request, Moyé referred Luther's motion to his area's regional presiding judge, Ray Wheless. He can either handle the motion himself, or appoint a judge to hear it.

Wheless has said in the past that he has granted recusal motions based on things that judges posted on Facebook.

Read more: Need a Judge Removed From a Case? 8 Tips—From Judges—on How To Do It

The recusal motion is unlikely to succeed. A large number of judges voluntarily recuse themselves from cases when they think it's warranted, according to a Texas Lawyer article. However, when a judge refuses to step down voluntarily, it's highly unlikely that the recusal motion will win at the next level. In that situation, data shows the motions only succeed 6% of the time, says data from the Texas Office of Court Administration.

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

In the case, Luther violated a temporary restraining order that Moyé issued, by keeping her salon open. Her violation prompted the judge to find her in contempt of court and sentence her to jail time. However, the Texas Supreme Court ordered her released from jail, as it handles a habeas corpus petition by Luther.

Luther's motion to recuse said that when Luther was arrested and jailed, her story and Moyé's involvement became international news.

Related story: Texas Attorneys Defend Judge Who Sentenced Dallas Salon Owner to Jail

Texas Attorney General Ken Paxton sent a letter to Moyé urging her release from jail. The 12 civil district judges of Dallas County wrote Paxton a collective response that said his letter offended separation of powers, and was an improper ex parte communication.

The motion added that since all 12 of Dallas's district judges signed the response letter to Paxton, they shouldn't hear the case either. She asked for a retired judge, or a judge who did not sign the letter, to be appointed.

Shelley Luther Shelley Luther's arrest mugshot. Photo: Dallas County Sheriff's Office

In other court filings this week, Luther denied all of the city of Dallas' allegations in the lawsuit. She argued that the case should be dismissed under the Texas Citizens Participation Act.

Luther also filed a counterclaim—which adds the state and Gov. Greg Abbott as defendants—that alleges that the Disaster Act of 1975, the law that underlies the Dallas emergency rules, is void because it unconstitutionally delegates legislative power that belongs to the governor, county judges and city mayors. She argued that the emergency rules violate separation of powers, are void for vagueness, violate due process and equal protection, and more.

Executive orders from the governor, Dallas county judge, mayor and Dallas city manager required Dallas salons to close, although businesses like liquor stores, day cares, grocery and home-improvement stores could open. The counterclaim said even though the restrictions now have been relaxed, "this set of conditions is predictably likely to occur yearly, and thus likely to repeat."

Read the full counterclaim:

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