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SECTION 1. Section 25.00255,
Government Code, is amended to read as follows:
Sec. 25.00255. RECUSAL OR
DISQUALIFICATION OF JUDGE.
(a)
A party in a case [hearing or trial] in a statutory probate
court may seek to recuse or disqualify a judge who is sitting in the
case by filing a motion [file] with the clerk of the court in
which the case is pending. The [a motion stating grounds for the
recusal or disqualification of the judge. The grounds may include any
disability of the judge to preside over the case.
[(b)
A] motion:
(1) must [for the recusal
or disqualification of a judge must:
[(1)
be filed at least 10 days before the date of the hearing or trial, except
as provided by Subsection (c);
[(2)]
be verified;
(2) must assert one or more of the grounds listed in Rule 18b, Texas
Rules of Civil Procedure;
(3) may not be based solely on the judge's ruling in the case; and
(4) must [(3)] state
with detail and particularity facts that [the alleged
grounds for recusal or disqualification of the judge based on]:
(A)
are within the affiant's personal knowledge, except that facts
may be stated on information and belief if the basis for the belief is
specifically stated;
(B) would be [is
supported by] admissible in evidence; and
(C) if proven, would be sufficient to justify recusal or
disqualification [or
[(B)
specifically stated grounds for belief of the allegations].
(b) [(c)] A motion to
recuse or disqualify shall [for recusal or disqualification may]
be filed as soon as [at the earliest] practicable after
the movant knows of the ground stated in the motion. A motion to recuse may
not be filed after the 10th day [time before the beginning of the
trial or other hearing if a judge is assigned to a case 10 or fewer days]
before the date set for a trial or other hearing unless, before
that day, the movant did not know and reasonably should not have known
that:
(1) the judge whose recusal is sought would preside at the trial or
hearing; or
(2) the ground stated in the motion existed.
(c) Any party other than the judge who is the subject of the recusal
or disqualification motion may before the motion is heard file a response
to the motion.
(d)
A party filing a motion [for recusal] or response under this
section [disqualification] shall serve a copy on each
[all] other party to the case. The method used for service of the
copy must be the same as the method used for filing the motion unless that
method is not available for service [parties or their counsel:
[(1)
copies of the motion; and
[(2)
notice that the movant expects the motion to be presented to the judge
three days after the filing of the motion unless the judge orders otherwise].
(e)
The [A party may file with the] clerk of the court shall
immediately deliver:
(1) to the respondent judge and the presiding judge of the statutory
probate courts a copy of a motion or response filed under this section; and
(2) to the presiding judge a copy of an order of recusal or referral
signed and filed by a respondent judge [a statement opposing or concurring with a motion for recusal or
disqualification at any time before the motion is heard].
(f)
Regardless of whether [Before further proceedings in a case in
which] a motion for [the] recusal or disqualification complies
with this section [of a judge has been filed], the respondent
judge, not later than the third business day after the date the motion
is filed, shall sign and file with the clerk either:
(1)
an order of recusal or disqualification [recuse or disqualify
himself or herself]; or
(2)
an order referring [request the assignment of a judge to hear]
the motion [by forwarding the motion and opposing and concurring
statements] to the presiding judge [of the statutory probate courts
as provided by Subsection (h)].
(g) A judge who recuses
himself or herself:
(1) shall enter an order of
recusal and:
(A) if the judge serves a
statutory probate court located in a county with only one statutory probate
court, request that the presiding judge [of the administrative judicial
district] assign a judge under Section 25.002201 to hear the case; or
(B) subject to Subsection
(l), if the judge serves a statutory probate court located in a county with
more than one statutory probate court, request that the presiding judge
order [request that] the clerk who serves the statutory probate
courts in that county to randomly reassign the case to a judge of
one of the other statutory probate courts located in the county; and
(2) may not take other action
in the case except for good cause stated in the order in which the action
is taken.
(g-1) A judge who
disqualifies himself or herself:
(1) shall enter an order of
disqualification and:
(A) if the judge serves a
statutory probate court located in a county with only one statutory probate
court, request that the presiding judge [of the administrative
judicial district] assign a judge under Section 25.002201 to hear the
case; or
(B) subject to Subsection
(l), if the judge serves a statutory probate court located in a county with
more than one statutory probate court, request that the presiding judge
order the clerk who serves the statutory probate courts in that county to
randomly reassign the case to a judge of one of the other statutory probate
courts; and
(2) may not take other action
in the case.
(h)
A judge who does not recuse or disqualify himself or herself[:
[(1)
shall forward to the presiding judge of the statutory probate courts, in
either original form or certified copy, an order of referral, the motion
for recusal or disqualification, and all opposing and concurring
statements; and
[(2)]
may not take other action in the case during the time after the filing of
the motion for recusal or disqualification and before a hearing on the
motion, except for good cause stated in the order in which the action is
taken.
(h-1) If the respondent judge fails to comply with a duty imposed by
this section, the movant may notify the presiding judge.
(i)
The [After receiving a request under Subsection (h), the]
presiding judge [of the statutory probate courts] shall rule on a
referred motion or [immediately forward the request to the presiding
judge of the administrative judicial district and request that the
presiding judge of the administrative judicial district] assign a judge
to rule on [hear] the motion not [for recusal or
disqualification. Not] later than the 15th day after the date the
presiding judge [of the administrative judicial district] receives
the request, [the presiding judge shall:
[(1)
set a hearing before himself or herself or a judge designated by the
presiding judge,] except that the presiding judge may not designate a
judge of a statutory probate court in the same county as the statutory
probate court served by the judge who is the subject of the motion. If a
party files a motion to recuse or disqualify the presiding judge, in his or
her capacity as administrative judge of the statutory probate courts or as
the judge in the case in which recusal or disqualification is requested,
the presiding judge shall sign and file with the clerk a written order
referring the motion to the chief justice of the supreme court for
consideration.
(i-1) A motion to recuse that does not comply with this section may
be denied without an oral hearing. The order must state the nature of the
noncompliance. A motion amended to correct the stated noncompliance counts
for purposes of determining whether a tertiary recusal motion has been
filed under the Civil Practice and Remedies Code.
(i-2) A motion to disqualify may not be denied on the ground that the
filing or service was not in compliance with this section.
(i-3) The presiding judge or judge assigned to decide the motion may
issue an [;
[(2)
cause notice of the hearing to be given to all parties or their counsel to
the case; and
[(3)
make other orders, including orders for] interim or ancillary order
[relief,] in the pending case as justice may require.
(i-4) Except by order of [(i-1)
If] the presiding judge or the judge assigned to decide the motion,
a subpoena or discovery request may not issue to the respondent judge and
may be disregarded unless accompanied by the order.
(i-5) A motion under this section must be heard as soon as
practicable and may be heard immediately after it is referred to the
presiding judge or an assigned judge. Notice of the hearing must be given
to all parties in the case. The hearing may be conducted by telephone on
the record. Documents submitted by facsimile or e-mail, otherwise
admissible under the rules of evidence, may be considered [of the administrative judicial district does
not assign a judge to hear a motion for recusal or disqualification within
the time prescribed by Subsection (i), the presiding judge of the statutory
probate courts may assign a judge to hear the motion and take other action
under that subsection].
[(i-2)] A judge who
hears a motion for recusal or disqualification [under Subsection (i) or
(i-1)] may also hear any amended or supplemented motion for recusal or
disqualification filed in the case.
(i-6) [(i-3)] If
a motion under this section [for recusal or disqualification] is
granted after a hearing [conducted
as provided by Subsection (i) or (i-1)], the presiding judge [who
heard the motion] shall transfer the case to another court or assign
another judge to the case and:
(1) if the judge subject to
recusal or disqualification serves a statutory probate court located in a
county with only one statutory probate court, the presiding judge or
judge assigned to decide the motion shall enter an order of recusal or
disqualification, as appropriate, and request that the presiding judge [of
the administrative judicial district] assign a judge under Section
25.002201 to hear the case; or
(2) subject to Subsection
(l), if the judge subject to recusal or disqualification serves a statutory
probate court located in a county with more than one statutory probate
court, the presiding judge or judge assigned to decide the motion shall
enter an order of recusal or disqualification, as appropriate, and request
that the clerk who serves the statutory probate courts in that county
randomly reassign the case to a judge of one of the other statutory probate
courts located in the county.
(j) [(i-4) The
presiding judge of an administrative judicial district may delegate the
judge's authority to make orders of interim or ancillary relief under
Subsection (i)(3) to the presiding judge of the statutory probate courts.
[(i-5)] A judge
assigned to hear a motion for recusal or disqualification under Subsection
(i) is entitled to receive the same salary, compensation, and
expenses, and to be paid in the same manner and from the same fund, as a
judge otherwise assigned under Section 25.0022, except that a judge assigned under Subsection (i) shall provide the
information required by Section 25.0022(l) to the presiding judge [of
the administrative judicial district, who shall immediately forward the
information to the presiding judge of the statutory probate courts].
[(j) After a statutory
probate court has rendered the final judgment in a case, a party may appeal
an order that denies a motion for recusal or disqualification as an abuse
of the court's discretion. A party may not appeal an order that grants a
motion for recusal or disqualification.]
(k) After notice and
hearing, the judge who hears a motion under this section may
order the party or
attorney who filed the motion, or both, to pay the reasonable attorney's
fees and expenses incurred by other parties if the judge determines that
the motion was:
(1) groundless and filed
in bad faith or for the purpose of harassment; [A party may file a
motion for sanctions alleging that another party in the case filed a motion
for the recusal] or
(2) clearly brought for
unnecessary [disqualification of a judge solely to] delay [the
case] and without sufficient cause[.
The presiding judge of the
administrative judicial district or the judge assigned to hear the motion
for recusal may approve a motion for sanctions authorized by Rule 215.2(b),
Texas Rules of Civil Procedure].
(k-1) The chief justice of the supreme court may assign judges and
issue any orders authorized under this section.
(k-2) An order denying a motion to recuse may be reviewed only for
abuse of discretion on appeal from the final judgment. An order granting a
motion to recuse is final and cannot be reviewed by appeal, mandamus, or
otherwise. An order granting or denying a motion to disqualify may be
reviewed by mandamus and may be appealed in accordance with other law.
(l) If a clerk of a statutory
probate court is unable to reassign a case as requested under Subsection
(g)(1)(B) or (i-6)(2) [(i-3)(2)] because the other statutory
probate court judges in the county have been recused or disqualified or are
otherwise unavailable to hear the case, the clerk shall immediately notify
the presiding judge [of the administrative judicial district] and
request that the presiding judge [of the administrative judicial
district] assign a judge under Section 25.002201 to hear the case.
[(m)
The clerk of a statutory probate court shall immediately notify and provide
to the presiding judge of the statutory probate courts a copy of an order
of recusal or disqualification issued with respect to the judge of the
statutory probate court.]
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SECTION 3. Section 25.00255,
Government Code, is amended by amending Subsections (a), (g), (g-1), (i-2),
(i-3), (i-5), and (l) and adding Subsection (a-1) to read as follows:
(a)
Notwithstanding any conflicting provision in the Texas Rules of Civil
Procedure, Rules 18a and 18b, Texas Rules of Civil Procedure, apply to the
recusal and disqualification of a statutory probate court judge except as
otherwise provided by this section or another provision of this subchapter.
The presiding judge:
(1) has the authority and shall perform the functions and duties of
the presiding judge of the administrative judicial region under the rules,
including the duty to hear or rule on a referred motion of recusal or
disqualification or, subject to Subdivisions (2) and (3) and to Section
25.002201, assign a judge to hear and rule on a referred motion of recusal
or disqualification;
(2) may assign a presiding judge of the administrative judicial
region to hear and rule on a referred motion of recusal or disqualification
only with the consent of the presiding judge of the administrative judicial
region; and
(3) may not assign a judge of a statutory probate court located in
the same county as the statutory probate court served by the judge who is the
subject of the motion of recusal or disqualification
[A
party in a hearing or trial in a statutory probate court may file with the
clerk of the court a motion stating grounds for the recusal or
disqualification of the judge. The grounds may include any disability of
the judge to preside over the case].
(See SECTION 5 below.)
(See SECTION 5 below.)
(See SECTION 5 below.)
(See SECTION 5 below.)
(See SECTION 5 below.)
(g) A judge who recuses
himself or herself:
(1) shall enter an order of
recusal and:
(A) if the judge serves a
statutory probate court located in a county with only one statutory probate
court, request that the presiding judge [of the administrative judicial
district] assign a judge under Section 25.002201 to hear the case; or
(B) subject to Subsection
(l), if the judge serves a statutory probate court located in a county with
more than one statutory probate court, request that the presiding judge
order [request that] the clerk who serves the statutory probate
courts in that county to randomly reassign the case to a judge of
one of the other statutory probate courts located in the county; and
(2) may not take other action
in the case except for good cause stated in the order in which the action
is taken.
(g-1) A judge who
disqualifies himself or herself:
(1) shall enter an order of
disqualification and:
(A) if the judge serves a
statutory probate court located in a county with only one statutory probate
court, request that the presiding judge [of the administrative
judicial district] assign a judge under Section 25.002201 to hear the
case; or
(B) subject to Subsection
(l), if the judge serves a statutory probate court located in a county with
more than one statutory probate court, request that the presiding judge
order the clerk who serves the statutory probate courts in that county to
randomly reassign the case to a judge of one of the other statutory probate
courts; and
(2) may not take other action
in the case.
(See SECTION 5 below.)
(See SECTION 5 below.)
(See SECTION 5 below.)
(See SECTION 5 below.)
(i-2) A judge who hears a
motion for recusal or disqualification [under Subsection (i) or (i-1)]
may also hear any amended or supplemented motion for recusal or
disqualification filed in the case.
(i-3) If a motion for recusal or disqualification is granted [after a hearing conducted as provided by
Subsection (i) or (i-1)], the presiding judge [who heard the
motion] shall transfer the case to another court or assign another
judge to the case and:
(1) if the judge subject to
recusal or disqualification serves a statutory probate court located in a
county with only one statutory probate court, the presiding judge or
judge assigned to decide the motion shall enter an order of recusal or
disqualification, as appropriate, and request that the presiding judge [of
the administrative judicial district] assign a judge under Section
25.002201 to hear the case; or
(2) subject to Subsection
(l), if the judge subject to recusal or disqualification serves a statutory
probate court located in a county with more than one statutory probate
court, the presiding judge or judge assigned to decide the motion shall
enter an order of recusal or disqualification, as appropriate, and request
that the clerk who serves the statutory probate courts in that county
randomly reassign the case to a judge of one of the other statutory probate
courts located in the county.
(See SECTION 5 below.)
(i-5) A judge assigned to
hear a motion for recusal or disqualification [under
Subsection (i)] is entitled to receive the same salary,
compensation, and expenses, and to be paid in the same manner and from the
same fund, as a judge otherwise assigned under Section 25.0022[, except that a judge assigned under Subsection
(i) shall provide the information required by Section 25.0022(l) to the
presiding judge of the administrative judicial district, who
shall immediately forward the information to the presiding judge of the
statutory probate courts].
(See SECTION 5 below.)
(a-1) Notwithstanding Rule 18a(h), Texas Rules of Civil Procedure, or
any other conflicting provision of the rules, the judge who hears a
motion of recusal or disqualification, after notice and hearing, may:
(1) order the party or
attorney who filed the motion, or both, to pay the reasonable attorney's
fees and expenses incurred by another party if the judge determines that
the motion was:
(A) groundless and filed
in bad faith or for the purpose of harassment; or
(B) clearly brought for
unnecessary delay and without sufficient cause; and
(2) enjoin the movant from filing other recusal motions in the case
without the prior written consent of the presiding judge of the statutory
probate courts.
(See SECTION 5 below.)
(l) If a clerk of a statutory
probate court is unable to reassign a case as requested under Subsection
(g)(1)(B) or (i-3)(2) because the other statutory probate court judges in
the county have been recused or disqualified or are otherwise unavailable
to hear the case, the clerk shall immediately notify the presiding judge [of
the administrative judicial district] and request that the presiding
judge [of the administrative judicial district] assign a judge under
Section 25.002201 to hear the case.
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