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In re Moore

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

October 30, 2019

IN RE J. MICHAEL MOORE

          On Petition for Writ of Mandamus, Prohibition, and Injunction.

          Before Chief Justice Contreras and Justices Benavides, Longoria, Hinojosa, Perkes, and Tijerina.

          ORDER EN BANC

          PER CURIAM.

         Relator J. Michael Moore filed a petition for writ of mandamus, prohibition, and injunction in the above cause on October 24, 2019. Currently before the Court is a motion filed by real party in interest, Marco A. Cantu, to recuse Justice Gina M. Benavides from participation in this original proceeding. Cantu asserts that this case involves "criminal conduct by attorneys" including Carlos Guerra, J. Michael Moore, David J. Lumber, Glenn D. Romero, Juan Gonzales and Ricardo G. Benavides. Cantu further asserts, in relevant part:

Justice Gina Benavides has already been recused/ removed from Cause No. 13-19-00254-CV because of the appearance of impartiality of dealing with her ex-husband and the father of her two children [Ricardo G. Benavides]. In this Cause No. 13-19-00254-CV, the same underlying conspiracy, along with some of the exact same issues, were brought before this Honorable Court of Appeals.
Once again the issues involve the same parties, with the same criminal activities, only now, J. Michael Moore in a desperate attempt to delay yet again his criminal actions and those of other attorneys including Ricardo G. Benavides has filed this Writ of Mandamus.
On Friday, October 25, 2019, at 6:15 p.m., Marco Cantu first received notice that the Honorable Judge Gina Benavides was part of the panel, which ordered a response to the Writ of Mandamus filed by J. Michael Moore.
The standard for recusal is that a reasonable person would harbor doubts about the impartiality of the justice. In this case, a reasonable person would harbor doubts about the impartiality of Judge Gina Benavides. Accordingly, Real Party in Interest requests that she be recused.

         Cantu does not provide any other argument, authority or evidence in support of his request to recuse Justice Benavides. Ricardo G. Benavides is not identified as a real party in interest in this original proceeding. See Tex. R. App. P. 52.2, 52.3(a).

         As an initial matter, we note that Cantu states that Justice Benavides was recused from other proceedings before this Court in appellate cause number 13-19-00254-CV "because of the appearance of impartiality of dealing with her ex-husband and the father of her two children." Cantu's assertion is incorrect. This Court, acting en banc, denied Cantu's request to recuse Justice Benavides by order issued on June 25, 2019 in our cause numbers 13-19-00230-CV and 13-19-00254-CV. We disapprove of Cantu's misrepresentation otherwise.

         In an 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. 16.3(b).

         All 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).

         Rule 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 at 615.

         Pursuant to the procedure outlined in Rule 16.3(b), prior to any further proceedings in this original proceeding, Justice Gina M. Benavides considered the motion 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 motion to recuse in this 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 motion 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 ...


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