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In re Dunn

Court of Appeals of Texas, Seventh District, Amarillo

May 10, 2017

IN RE EDRICK JAMAR DUNN, RELATOR

         Original Proceeding Arising From Proceedings Before the 140th District Court Lubbock County, Texas Trial Court No. 2011-432, 529-B; Honorable Jim Bob Darnell, Presiding

          Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

          EN BANC ORDER ON MOTION TO RECUSE

          PER CURIAM.

         Edrick Jamar Dunn, an inmate appearing pro se and in forma pauperis, filed a petition for writ of mandamus against the Honorable Jim Bob Darnell. This court denied the petition on April 10, 2017.[1] Now pending before this court are three separate motions for rehearing and Dunn's "Motion to Recuse/Disqualify Seventh District/Court of Appeals J. Patrick A. Pirtle/Panel."[2] Dunn's allegations of bias are brought against the entire Seventh Court of Appeals. Specifically, he asserts this court's opinion was incorrect for "strategically misstating the relief sought on the face of the writ of mandamus . . . ." Dunn concludes that "this court must recuse or refer and furthermore the Seventh Court of Appeals is disqualified." For the reasons expressed herein, we deny the motion.

         Applicable Law

         Recusal and disqualification of appellate judges is controlled by Rule 16 of the Texas Rules of Appellate Procedure. Under Rule 16.3(a), "[a] party may file a motion to recuse a justice or judge before whom the case is pending. The motion must be filed promptly after the party has reason to believe that the justice or judge should not participate in deciding the case." Tex.R.App.P. 16.3(a). Under Rule 16.3(b), "[b]efore any further proceeding in the case, the challenged justice or judge must either remove himself . . . 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."[3]Tex. R. App. P. 16.3(b). "The challenged justice or judge must not sit with the remainder of the court to consider the motion as to him . . . ." Id.

         The Texas Constitution and Rule 18b(a) of the Texas Rules of Civil Procedure provide the grounds for disqualification of judicial officers. See Tex. Const. Art. V, § 11; Tex.R.Civ.P. 18b(a). A judge may not sit in a case in which (1) the judge served as a lawyer in the matter or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter; (2) the judge knows that, individually or as a fiduciary, the judge has an interest in the subject matter in controversy; or (3) either the parties may be related to the judge by affinity or consanguinity within the third degree. See Tex. R. Civ. P. 18b(a).

         The grounds for recusal of an appellate court justice are the same as those set out in Rule 18b(b) of the Texas Rules of Civil Procedure. Tex.R.App.P. 16.2. Rule 18b(b) provides that a judge must recuse in any proceeding in which:

(1) the judge's impartiality might reasonably be questioned;
(2) the judge has a personal bias or prejudice concerning the subject matter or a party;
(3) the judge has personal knowledge of disputed evidentiary facts concerning the proceeding;
(4)the judge or a lawyer with whom the judge previously practiced law has been a material witness concerning the proceeding;
(5) the judge participated as counsel, adviser, or material witness in the matter in controversy, or expressed an opinion concerning the merits of it, while acting as an attorney in government service;
(6) the judge knows that the judge, individually or as a fiduciary, or the judge's spouse or minor child residing in the judge's household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that ...

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