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Tyurin v. Weitzel

Court of Appeals of Texas, First District

February 27, 2018

DR. MICHAEL (MIKHAIL) TYURIN, Appellant
v.
ROBERT WEITZEL, CLINT CORRIE, RITU GUPTA, C.M. HENKEL, AND FRITZ, BYRNE, HEAD & GILSTRAP, PLLC, Appellees

         On Appeal from the 164th District Court Harris County, Texas Trial Court Case No. 2017-30630

          MEMORANDUM ORDER

          PER CURIAM.

         Currently pending before this Court is appellant Dr. Michael (Mikhail) Tyurin's "Verified . . . Motion to Transfer 01-17-00727-CV to the Texas Supreme Court, under the 1st Amendment." In his motion, appellant asks "the 1st Court of Appeals to recuse itself from 01-17-00727-CV and forward 01-17-00727-CV to the Texas Supreme Court for Review and ruling."

         Texas Rule of Appellate Procedure 16.3 prescribes the procedure to be followed for recusal of an appellate justice:

Before any further proceeding in the case, the challenged justice or judge must either remove himself or herself 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. The challenged justice or judge must not sit with the remainder of the court to consider the motion as to him or her.

Tex. R. App. P. 16.3(b). When, as in this case, a party challenges all the members of the court, the court decides the motion under the procedures set forth in Rule 16.3. See id.; see, e.g., Cameron v. Greenhill, 582 S.W.2d 775, 775-77 (Tex. 1979) (denying motion to disqualify entire Texas Supreme Court); Cogsdil v. Jimmy Fincher Body Shop, LLC, No. 07-16-00303-CV, 2016 WL 7321788, at *1 (Tex. App.-Amarillo Dec. 12, 2016, order) (treating recusal motion as addressed to entire Court).

         Accordingly, upon the filing of appellant's motion and before any further proceedings in this appeal, each of the challenged justices of this Court considered the motion in chambers. See Tex. R. App. P. 16.3(b); see also Cogsdil, 2016 WL 7321788, at *1; Cannon v. City of Hurst, 180 S.W.3d 600, 601 (Tex. App.-Fort Worth 2005, order). Chief Justice Radack and Justices Jennings, Keyes, Higley, Bland, Massengale, Brown, Lloyd, and Caughey each found no reason to recuse themselves and certified the matter to the remaining members of the en banc court. See Tex. R. App. P. 16.3(b); Cogsdil, 2016 WL 7321788, at *1; Cannon, 180 S.W.3d at 601. This Court then followed the accepted procedure set out in Rule 16.3. See Tex. R. App. P. 16.3(b); Cannon, 180 S.W.3d at 601. The justices deliberated and decided the motion to recuse with respect to each challenged justice by a vote of the remaining participating justices en banc. See Tex. R. App. P. 16.3(b); Cogsdil, 2016 WL 7321788, at *1; Cannon, 180 S.W.3d at 601. No challenged justice sat with the other members of the Court when his or her challenge was considered. See Tex. R. App. P. 16.3(b); Manges v. Guerra, 673 S.W.2d 180, 185 (Tex. 1984); Cogsdil, 2016 WL 7321788, at *1; McCullough v. Kitzman, 50 S.W.3d 87, 88 (Tex. App.-Waco 2001, order).

         Having considered the motion as to each challenged justice, and finding no basis for recusal, appellant's "Verified . . . Motion to Transfer 01-17-00727-CV to the Texas Supreme Court, under the 1st Amendment" is denied with respect to each challenged justice. See Manges, 673 S.W.2d at 185; McCullough, 50 S.W.3d at 89. The Court enters the following orders:

         ORDER DENYING MOTION AS TO CHIEF JUSTICE RADACK

         To the extent that appellant's motion requests recusal of Chief Justice Radack, it is ordered that the motion is denied.

          The Court consists of: Justices Jennings, Keyes, Higley, Bland, Massengale, Brown, Lloyd, and Caughey.

         ORDER DENYING MOTION AS TO JUSTICE JENNINGS

         To the extent that appellant's motion requests recusal of Justice Jennings, it is ordered that the motion is denied.

         The Court consists of: Chief Justice Radack and Justices Keyes, Higley, Bland, ...


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