Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
HIDALGO COUNTY DISTRICT ATTORNEY RICARDO RODRIGUEZ JR. AND JUAN L. VILLESCAS, ASSISTANT DISTRICT ATTORNEY, Appellants,
MARCO A. CANTU, Appellee. IN RE HIDALGO COUNTY CRIMINAL DISTRICT ATTORNEY RICARDO RODRIGUEZ JR. AND JUAN VILLESCAS
appeal from the 370th District Court of Hidalgo County,
Petition for Writ of Mandamus.
Chief Justice Contreras and Justices Benavides, Longoria,
Delgado, Hinojosa, and Perkes  Order En Banc
and real party in interest, Mark A. Cantu, has filed a
"Certificate of Interested Parties" in both the
appeal currently pending in cause number 13-19-00230-CV and
the original proceeding currently pending in cause number
13-19-00254-CV. In each case, Cantu asserts that various
individuals "were involved in a criminal conspiracy to
suborn perjury" and contends that "[i]f this
underlying lawsuit is successful," these individuals
"will be indicted, arrested and become residents of the
Hidalgo County Hilton (i.e., the jail)." He asserts that
"they possess a vested interest in terminating this
case" to "prevent their possible criminal
prosecution" and requests that they be listed in these
lawsuits "as interested parties." Cantu further
states that "in light of such facts, the impartiality of
Hon. Gina Benavides may reasonably be questioned" and
requests that she be recused from the appeal and original
proceeding. Cantu does not provide argument, authority, or
evidence in support of his request to recuse Justice
appellate court proceeding, a party may file a motion to
recuse a justice or judge before whom the case is pending.
See Tex. R. App. P. 16.3(a). The motion to recuse
must be filed promptly after the party "has reason to
believe that the justice or judge should not participate in
deciding the case." Id. "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." Id. R.
16.3(b). "An en banc court consists of all members of
the court who are not disqualified or recused and- if the
case was originally argued before or decided by a panel-any
members of the panel who are not members of the court but
remain eligible for assignment to the court."
Id. R. 41.2(a). "The challenged justice or
judge must not sit with the remainder of the court to
consider the motion as to him or her." Id. R.
judges have the duty to sit and decide matters before them
unless a basis exists for their disqualification or recusal.
Ex parte Donovan, 541 S.W.3d 196, 200 (Tex Crim App
2017) (Alcala, J, concurring), cert denied sub nom Donovan v
Tex, 138 S.Ct. 2580 (2018); Rogers v Bradley, 909 S.W.2d 872,
879 (Tex 1995) (Enoch, J, concurring); Sears v.
Olivarez, 28 S.W.3d 611, 614 (Tex. App.-Corpus
Christi-Edinburg 2000, no pet.) (en banc). In fact, there is
as much of an obligation for a judge not to recuse when there
is no occasion to do so as there is for the judge to do so
when there is. Ex parte Donovan, 541 S.W.3d at 200;
Rogers, 909 S.W.2d at 879; see United States v.
Burger, 964 F.2d 1065, 1070 (10th Cir. 1992).
18b(b) of the Texas Rules of Civil Procedure identifies the
grounds for recusal of an appellate court justice.
Tex.R.App.P. 16.2; see Tex.R.Civ.P. 18b(b); McCullough v.
Kitzman, 50 S.W.3d 87, 88 (Tex. App.-Waco 2001, pet.
denied) (order). Rule 18b provides that a justice must recuse
himself or herself in a proceeding in which "the
judge's impartiality might reasonably be
questioned." Tex.R.Civ.P. 18b(b)(1). The test
for recusal under this provision is "whether a
reasonable member of the public at large, knowing all the
facts in the public domain concerning the judge's
conduct, would have a reasonable doubt that the judge is
actually impartial." Rogers, 909 S.W.2d at 881;
see Estate of Nunu, 542 S.W.3d 67, 87 (Tex.
App.-Houston [14th Dist.] 2017, pet. denied); Drake v.
Walker, 529 S.W.3d 516, 528 (Tex. App.-Dallas 2017, no
pet.); Fuelberg v. State, 410 S.W.3d 498, 509 (Tex.
App.-Austin 2013, no pet.); In re Fifty-One Gambling
Devices, Twenty Six Thousand Eight Hundred Eighty Dollars in
United States Currency, 298 S.W.3d at 768, 775 (Tex.
App.-Amarillo 2009, pet. denied); Sears, 28 S.W.3d
to the procedure outlined in Rule 16.3(b), prior to any
further proceedings in this appeal and original proceeding,
Justice Gina M. Benavides considered the motions to recuse.
See Tex. R. App. P. 16.3(b). Justice Gina M.
Benavides found no reason to recuse herself under any of the
rules and law pertaining to recusal and denied the motions to
recuse in each case. She then certified her denial to the
entire court. See id.; McCullough v. Kitzman, 50
S.W.3d at 88. The remaining justices, sitting en banc,
decided the motions to recuse Justice Benavides, who did not
sit with the remainder of the court to determine the motions.
See Tex. R. App. P. 16.3(b). The remaining justices,
having examined and fully considered the pleadings and the
record in each case, find no reason to recuse Justice Gina M.
Benavides. Accordingly, Mark A. Cantu's motion to recuse
Justice Gina M. Benavides is DENIED in each of these causes.
 Justice Rodolfo "Rudy"
Delgado did not participate in this decision.