Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
IN RE J. MICHAEL MOORE
Petition for Writ of Mandamus, Prohibition, and Injunction.
Chief Justice Contreras and Justices Benavides, Longoria,
Hinojosa, Perkes, and Tijerina.
ORDER EN BANC
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.
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,
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.
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 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