Could a Texas county judge preside over probate of a will the judge drafted, witnessed, or that involved the judge's former law practice or relatives?

TX AG Opinion DM-0109: When was a county probate judge disqualified or subject to recusal?

Plain-English summary

The Texas Attorney General was asked about five settings in which a constitutional county judge might preside over probate of a will the judge had drafted or witnessed, that a relative had drafted, or that involved the judge's current or former law partner. The opinion declined to decide any scenario as a matter of law because disqualification and recusal depended on all relevant facts.

Article V, section 11 of the Texas Constitution disqualified a judge who had a direct financial interest, was related within the prohibited degree to a party, or had been counsel in the case. Constitutional disqualification could not be waived, deprived the judge of power to act, and made the judge's judicial acts void.

Merely drafting a will did not itself establish a disqualifying financial interest. Earlier probate cases had disqualified judges who were executors, creditors, or otherwise financially accountable to the estate. The court in Prendergass v. Beale noted that the judge had drafted the will but relied on the judge's status as executor and creditor.

Prior legal work amounted to having been "counsel in the case" only when the judge had acted as counsel for a party in a proceeding raising the same issues. The opinion also concluded that an uncontested probate matter was still a "case" for this purpose.

Recusal under Rules 18a and 18b was broader. It covered situations in which impartiality might reasonably be questioned, the judge had bias or disputed factual knowledge, a former law partner had been a material witness, or specified relatives acted as lawyers. Recusal grounds could be waived if not raised through the required procedure.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Who this opinion affected (as of 1992)

Constitutional county judges: They had to distinguish nonwaivable constitutional disqualification from broader, waivable recusal under the civil rules.

Probate lawyers and estate representatives: A judge's prior drafting work, witnessing of a will, former partnership, or relationship to an attorney was relevant but did not produce an automatic answer without the full facts.

Parties seeking recusal: They had to use Rule 18a procedures or risk waiving the issue. If the judge did not voluntarily recuse, another assigned judge decided the motion.

Court administrators: Several constitutional and statutory procedures allowed appointment or assignment of a special judge when the county judge could not preside.

Common questions

Was a judge automatically disqualified from probating a will the judge had drafted?
No. Drafting alone did not establish the direct financial interest required by that constitutional ground. Other facts, including prior representation on the same issues, could matter.

Could the parties waive constitutional disqualification?
No. The opinion described article V, section 11 disqualification as jurisdictional and nonwaivable.

Was an uncontested probate proceeding a "case"?
Yes. The opinion concluded that the term included an uncontested probate matter for the prior-counsel ground.

Was a judge disqualified because a relative represented someone in the probate matter?
Not necessarily. An attorney ordinarily was not a party, but the full facts could show that the attorney had a direct interest or that a recusal ground applied.

How did recusal differ from disqualification?
Recusal reached reasonable questions about impartiality and other listed circumstances beyond the constitution. It had to be raised under Rule 18a and could be waived.

Background and legal framework

The opinion separated three constitutional disqualification grounds: direct pecuniary interest, prohibited kinship to a party, and prior service as counsel in the case. The constitutional list was exclusive.

For financial interest, the opinion distinguished direct accountability to an estate from knowledge, opinions, prior trial involvement, or other nonfinancial connections. For family relationships, it explained that "party" included people directly interested in the subject and result, not only named parties.

For prior counsel work, Matlock v. Sanders supplied the rule that the earlier representation had to concern the same issues between the same parties. Attorney General Opinion V-79 had also treated unfinished probate matters handled by a newly elected judge as cases in which the judge could not preside.

Rule 18b set the substantive recusal grounds, while Rule 18a established the motion and assignment procedure. The Attorney General left each hypothetical for decision by the judge or by the judge assigned to hear a recusal motion.

Citations

Constitutional provisions, statutes, and rules:

• Tex. Const. art. V, §§ 11, 15-16
• Tex. R. Civ. P. 18a, 18b
• Tex. Gov't Code §§ 21.005, 21.009, 25.0022, 26.012, 26.021, 26.022, 82.064(b)
• Tex. Prob. Code §§ 4-5, 36

Cases:

• Postal Mut. Indem. Co. v. Ellis, 169 S.W.2d 482 (Tex. 1943)
• Love v. Wilcox, 28 S.W.2d 515 (Tex. 1930)
• Burks v. Bennett, 55 Tex. 237 (1881); 62 Tex. 277 (1884)
• Prendergass v. Beale, 59 Tex. 446 (1883)
• Cameron v. Greenhill, 582 S.W.2d 775 (Tex. 1979)
• Matlock v. Sanders, 273 S.W.2d 956
• McLeod v. Harris, 582 S.W.2d 772 (Tex. 1979)
• Dunn v. County of Dallas, 794 S.W.2d 560 (Tex. App.--Dallas 1990, no writ)

Related opinions:

• Tex. Att'y Gen. Ops. V-79 (1947); H-1132 (1978)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0109
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1992/dm0109.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES April 20, 1992
ATTORNEY GENERAL
Mr. Robert Flowers Opinion No. DM-109
Executive Director
State Commission on Judicial Conduct Re: Whether a constitutional county
P.O. Box 12265, Capitol Station judge is disqualified from presiding over
Austin, Texas 78711 - probate proceedings involving wills that

he prepared or witnessed and related
questions (RQ-48)

Dear Mr. Flowers:

You ask whether the county judge is disqualified from presiding over probate
matters under various circumstances.! You state that in some of the more sparsely
populated counties in Texas, the county judge presides over probate matters and is
also one of the few attorneys in the county. In such counties, it is probable that wills
prepared by the county judge will be offered for probate in his court. You ask
whether constitutional county judges who are also licensed to practice law may
preside over probate proceedings under the following circumstances:

1. when the will offered for probate was prepared by the judge
   for a deceased client prior to the time the judge assumed the
   bench?

2. when the will offered for probate was prepared by the judge
   for a deceased client after the judge assumed the bench?

3. when the will offered for probate was prepared by an
   attorney related to the judge by affinity or consanguinity within
   the third degree? |

1The county judge is the presiding officer of the constitutional county court established in each
county of the state by article V, section 15 of the Texas Constitution. See Tex. Const. art. V, § 16; Gov't
Code § 21.009. The county court has the general jurisdiction of a probate court including authority to
probate wills, grant letters testamentary and of administration and guardianship, settle accounts of
personal representatives, and transact all business relative to estates subject to administration or
guardianship. Prob. Code § 4; see also id. § 36 (duty of county judge with respect to estates).
Mr. Robert Flowers - Page 2 (DM-109)

4. when the will offered for probate was prepared by an
   attorney with whom the judge is, or was, engaged in the practice
   of law?

5. when the will offered for probate was prepared by another
   attorney but witnessed by the judge either prior to or after
   assuming the bench?

You also ask whether the answers would be different for a particular will that is self-
proven or uncontested.

You direct our attention to article V, section 11 of the Texas Constitution,
which governs disqualification, and rule 18b of the Texas Rules of Civil Procedure,
which governs recusal, as relevant to your questions. We will address each provision
in turn.

DISQUALIFICATION
Introduction

We will advise you about the law governing disqualification of a judge, but
we cannot determine whether disqualification of a judge would be required in a
particular case. This determination requires an evaluation of all relevant facts. A
legal opinion from this office cannot make the fact findings necessary to decide
whether a judge should be disqualified in a particular case.?

The constitutional provision sets out grounds for disqualification of a judge in
the following language:

No judge shall sit in any case wherein he may be interested,
or where either of the parties may be connected with him, either

2The salient facts of some cases may be so similar to the facts recited in judicial decisions that
the question of disqualification can be resolved as a matter of law. The facts you set out do not permit
us to resolve your questions as a matter of law.

p. 546
Mr. Robert Flowers - Page 3 (DM-109)

by affinity or consanguinity, within such a degree as may be pre-
scribed by law,3 or when he shall have been counsel in the case.

Tex. Const. art. V, § 11 (footnote added); see also Tex. R. Civ. P. 18b(1) (restating
constitutional grounds for disqualification).

Disqualification under the constitution affects the judge’s jurisdiction and
power to act and cannot be waived. Postal Mut. Indem. Co. v. Ellis, 140 Tex. 570,
169 S.W.2d 482 (1943). Any judicial act or discretion exercised by a judge who is
subject to disqualification pursuant to. the constitution is void. Templeton v.
Giddings, 12 S.W. 851 (Tex. 1889). The grounds for disqualification of judges stated
in the constitution are exclusive. Love v. Wilcox, 28 S.W.2d 515 (Tex. 1930); see also
Aldridge v. State, 170 Tex. Crim. 502, 342 S.W.2d 104 (1960); Berry v. State, 83 Tex.
Crim. 210, 203 S.W. 901 (1918).

We will discuss each of the three constitutional grounds for disqualifica-
tion: the judge’s interest in the case; his relationship with a party in a prohibited
degree; and his having been counsel in the case.

Interest

The term "interest" refers to direct pecuniary interest. City of Oak Cliff v.
State, 97 Tex. 391, 79 S.W. 1068 (1904). Some of the early cases on disqualification
for interest address disqualification of the county judge from presiding in a probate
matter. A county judge was disqualified to preside in the probate of a will when he
had previously acted as temporary administrator and had not closed his accounts.
Burks v. Bennett, 55 Tex. 237 (1881). His consequent liability to account for his
administration was a disqualifying interest such that removal of the probate
proceeding to the district court was authorized. Id. The county judge also had two
small claims against the estate. Id. These claims constituted a direct pecuniary
interest in the probate proceeding that disqualified him from serving as probate
judge and rendered invalid orders he had issued before the estate was removed to

3Section 21.005 of the Government Code provides that a judge may not sit in a case if cither of
the parties is related to him by affinity or consanguinity within the third degree. See also Tex. R. Civ.

P. 18b(1)(c).

p. 547
Mr. Robert Flowers - Page 4 (DM-109)

district court. Burks v. Bennett, 62 Tex. 277 (1884).4 A county judge who was named
in the will as executor and was a creditor of the estate was disqualified for interest
from presiding over the probate proceeding. Prendergass v. Beale, 59 Tex. 446
(1883). The judge had also drafted the will, but the court did not rely on that fact in
determining that he was disqualified.

Interests other than direct pecuniary interests in a case do not disqualify a
judge. Cameron v. Greenhill, 582 S.W.2d 775 (Tex. 1979). A judge is not
disqualified for having an opinion on the subject matter of the case, or for having
knowledge of the facts of the case. Lombardino v. Firemen’s & Policemen’s Civil
Service Comm'n, 310 S.W.2d 651 (Tex. Civ. App.--San Antonio 1958, writ refd
n.r.e.); Chavarria v. Macias, 252 S.W.2d 262 (Tex. Civ. App.--San Antonio 1952, no
writ). Nor is a judge disqualified for interest from handling the appeal of a case he
heard at the trial level. Beckham v. Rice, 1 Tex. Civ. App. 281, 21 S.W. 389 (1892,
writ ref’d); see also Hoyt v. Hoyt, 351 S.W.2d 111 (Tex. Civ. App.--Dallas 1961, writ
dism’d w.o,j.).

Relationship

A judge is disqualified if a party to the proceeding were related to him by
affinity or consanguinity within the prohibited degree provided by law. Gains v.
Barr, 60 Tex. 676 (1884). A "party" is not restricted to persons named as parties, but
includes all persons directly interested in the subject matter and result of the suit.
Postal Mut. Indem. Co. v. Ellis, 140 Tex. 570, 169 S.W.2d 482 (1943). A probate
judge will be disqualified if he is related within a prohibited degree to the
administrator of an estate, even though the administrator is not named as a party.
Duncan v. Herder, 57 Tex. Civ. App. 542, 122 S.W. 904 (1909, writ ref'd); Gains, 60
Tex. 676. An attorney for a party is ordinarily not a party to the suit so as to
disqualify the trial judge. Winston v. Masterson, 87 Tex. 200, 27 S.W. 768 (1894);
Canavati v. Shipman, 610 S.W.2d 200 (Tex. Civ. App.-San Antonio 1980, no writ).
But see Postal Mutual Indemnity Company, 140 Tex. at 575, 169 S.W.2d at 485; Sun
Exploration & Production Co. v. Jackson, 729 S.W.2d 310 (Tex. App.--Houston [1st
Dist.] 1987, no writ) (rule for attorney in workers compensation cases wherein judge

“Attorney General Opinion V-79 (1947) determined that a newly-elected county judge who as
a private attorney had handled numerous probate matters, many of which were still pending in county
court, could continue to act as administrator of estates in county court. The opinion expressly assumed
that he had no pecuniary interest in the subject matter over which he presided and did not discuss this
aspect of the law or refer to Burks v. Bennett, 55 Tex. 237 (1881) or Prendergass v. Beale, 59 Tex. 446
(1883).

p. 548
Mr. Robert Flowers - Page 5 (DM-109)

determines attorney’s fee). Thus, the term "parties" in article V, section 11 of the
Texas Constitution includes named parties and other persons with a direct pecuniary
interest in the suit.

Participati lin

Finally, a judge is disqualified for having been counsel in the case. None of
the cases construing this portion of article V, section 11 of the Texas Constitution
address the circumstances you have inquired about

The court in Matlock v. Sanders, 273 S.W.2d 956 reviewed earlier cases on
disqualification of judges for having been counsel in the case, and stated the
following rule:

[I]n order for a trial judge to come within the constitutional and
statutory inhibitions against sitting as judge in a case in which he
had been counsel, it is necessary that the judge had acted as
counsel for some of the parties in suit before him in some
proceeding in which the issues were the same as in the case
before him.¢

273 S.W.2d at 958; see also City of Austin v. Cahill, 99 Tex. 172, 89 S.W. 552 (1905)
(on motion for rehearing); Lade v. Keller, 615 S.W.2d 916 (Tex. Civ. App.--Tyler
1981, no writ).’

SBut see Carson v. Blair, 121 S.E. 517 (Ga. Ct. App. 1923) (judge not disqualified because he
drafted contract on which case was founded); Morrissey v. Gray, 160 Cal. 390, 117 P. 438 (1911) (judge
not disqualified to try action to quict title to mortgaged homestead where he drafted mortgage). See
generally Annotation, Disqualification of Judge, 72 A.L.R.2d 443 (1960) (disqualification of judge for
prior representation as attorney or counsel).

This statement is described as the general rule for civil cases in Kilgarlin & Bruch,
Disqualification and Recusal of Judges, 17 St. Mary’s L. J. 599, 612 (1986).

7On some facts, it is clear that the judge had been counsel in the case. Because he had signed
and filed pleadings on behalf of parties to a suit, a judge had been attorney in the case and was
disqualified from performing any judicial actions in that suit. Hidalgo County Water Control &
Improvement Dist. No. 1 v. Boysen, 354 S.W.2d 420 (Tex. Civ. App.--San Antonio 1962, writ ref); see
also Gaines v. Hindman, 74 S.W. 583 (Tex. 1903, no writ) (judge prepared motion for new trial). If the
judge was a member of a law firm that gave counsel on the matter in litigation, he will be disqualified
from trying the case. State ex rel. Routh v. Burks, 82 Tex. 584, 18 S.W. 662 (1891) (law firm assisted in
organizing a municipal corporation, which the state sought to dissolve). However, if facts show that the

p. 549
Mr. Robert Flowers - Page 6 (DM-109)

Thus, a judge who acted as attorney for a party in a suit raising identical
issues to the one before him is disqualified under the third aspect of the
constitutional prohibition. For example, by giving legal advice to one party in a
divorce proceeding, a judge was disqualified from trying a subsequent divorce case
that raised the same issues between the same parties. Johnson v. Johnson, 89 S.W.
1102, 1104 (Tex. Civ. App. 1905, no writ). Although he only gave advice without
planning to act any further in the matter as an attorney, he was nonetheless counsel
in the case. Id. It was not necessary that he either received or expected compensa-
tion for his advice. Id.

A judge was disqualified from a suit challenging a conveyance of title to land
because as a practicing attorney he had written a title opinion on the identical tract
of land for the grantor of the deed under which the defendant claimed title.
Williams v. Kirven, 532 S.W.2d 159 (Tex. Civ. App.--Austin 1976, writ refd n.r.e.).
Although the grantor was not a party to the suit, the interest of the grantor and
defendant were so closely allied as to justify the conclusion that the defendant stood
in the place of the grantor, for whom the judge had been counsel. Id. While the
judge had never advised any of the parties before him, his former client and the
defendant were essentially treated as the same person because of their identical
interests in this matter.

Another series of cases exemplifies prior contacts with parties or issues that
do not disqualify a judge for having been counsel in the case. If his sole prior
involvement with the case before him consisted of representing a party in some
other matter, or of doing legal work that related to issues in the case before him, but
did not involve the same parties, a judge has not been "counsel in the case.” A trial
judge who has personally prosecuted or defended a defendant in past cases is not
disqualified from presiding over a trial where a new offense is charged. Hathome v.
State, 459 S.W.2d 826 (Tex. Crim. App. 1970), cert denied, 402 U.S. 914 (1971).

A county judge was not disqualified from trying an action for probate of a
holographic will because he had previously acted on behalf of the testator and his
sole devisee in preparing a promissory note payable to the proponent of the will and
secured by a deed of trust. Lade, 615 S.W.2d 916. There was no evidence that the
testator consulted him about his will. The reviewing court stated that the judge had
performed legal services for the parties in a routine real estate transaction and had

(footnote continued)
judge left the law firm before it undertook the case, he is not disqualified. Walker County Lumber Co.
v. Sweet, 63 S.W.2d 1061 (Tex. Civ. App.--Beaumont 1933, writ dism’d w.o,j.).

p. 550
Mr. Robert Flowers - Page 7 (DM-109)

not acted as counsel for some of the parties in a proceeding raising the same issues
as the will contest suit.

In a suit by grantor for cancellation of a deed, the judge was not disqualified
because he had, as attorney, drawn the will under which the grantor had received
the property, when it was only collaterally involved in the case. Hooks v. Brown, 348
S.W.2d 104 (Tex. Civ. App.--Austin 1961, writ ref'd n.r.e.); see also Conner v. Conner,
457 S.W.2d 593 (Tex. Civ. App.--Amarillo 1970, writ dism’d) (judge who acted as
notary when land deeded from parents to husband was not disqualified to try
divorce action and property settlement involving same land).

You inquire about uncontested as well as contested probate proceedings, but
the judicial decisions we have cited on disqualification of a judge for having been
counsel in the case involve adversary proceedings. Therefore, we must determine
whether this ground for disqualification applies only in an adversary proceeding, or
to an uncontested probate proceeding as well. This question arises because "case" is
frequently defined as a "controversy" or a question contested before a court.
BLACK’S LAW DICTIONARY 215 (6th ed. 1990); see City of Big Spring v. Garlington,
88 S.W.2d 1095, 1096 (Tex. Civ. App.--Eastland 1935, no writ).

A probate proceeding is, however, a "case" for purposes of determining
disqualification for interest under the first sentence of article V, section 11 of the
Texas Constitution. See Burks v. Bennett, 55 Tex. 237; Prendergass, 59 Tex. 446; see
also Attorney General Opinion WW-1505 (1962) (county judge who is guardian of
person and estate of one of unsound mind is disqualified for interest from hearing a
matter relating to the guardianship). The same sentence of the constitutional pro-
vision also provides for disqualification for having been “counsel in the case." The
courts will refer to rules like those governing the interpretation of statutes to
construe constitutional provisions. Booth v. Strippleman, 61 Tex. 378, 382 (1884). In
construing a statutory word, the court may consider the meaning of the same word
used elsewhere in the act. See Hartely v. Langdon & Co., 347 S.W.2d 749 (Tex. Civ.
App.--Houston [1st Dist.] 1961, no writ). It is reasonable to conclude that the
phrase “counsel in the case" includes participation in uncontested probate
proceedings.®

8A case from another state held the judge of the county court disqualified from continuing to
preside over a non-adversary probate proceeding after he appeared as attorney for the executor in
circuit court. In re Eckhoff’s Estate, 62 S.D. 110, 251 N.W. 892 (1934).

p. 551
Mr. Robert Flowers - Page 8 (DM-109)

Moreover, Attorney General Opinion V-79 (1947) found that a county judge
could be disqualified from uncontested probate matters for having been counsel in
the case. It concerned an attorney who had recently become county judge, and who
had handled probate matters, many of which were still in court. The opinion set
forth the following definition:

The word “case” as used in the Constitution and this statute
means any legal controversy between parties with respect to a
matter of fact or of law; any justiciable matter or thing between
opposing parties presented for decision; any proceeding rightly
before a judge with respect to any right of the parties, whether legal
or equitable, and whether it involves a property right or a
personal right.

Attorney General Opinion V-79 at 3 (emphasis added).

The italicized language in the quotation above includes uncontested matters.
Attorney General Opinion V-79 held that the county judge was disqualified from
considering applications or matters in the administration of an estate if he had ad-
vised the administrator or guardian about that application or matter. We conclude
that the third ground for disqualification may apply in an uncontested probate
proceeding. Whether the judge is disqualified from presiding over a particular
probate matter must be decided by evaluating the relevant facts in that case.

RECUSAL

Recusal is significantly different from disqualification. It includes "those
instances in which a judge voluntarily steps down and those instances in which a
judge is required to step down on motion of a party for reasons other than those
enumerated as disqualifying in the Constitution.” Kilgarlin & Bruch,
Disqualification and Recusal of Judges, 17 St. Mary’s LJ. 599, 602 (1986).
Traditionally, whether a judge would comply with a request to step down was a
matter solely for his determination. Langdeau v. Dick, 356 S.W.2d 945, 959 (Tex.
Civ. App.-Austin 1962, writ ref’d n.r.e.).

There is now a procedure for judicial resolution of requests for recusal. Rule
18a of the Texas Rules of Civil Procedure authorizes any party to a legal proceeding
to file a motion stating why the judge should not sit in the case. Tex. R. Civ. P.
18a(a). Prior to any further proceedings in the case, the judge shall either recuse
himself or request the presiding judge of the administrative judicial district to assign

p. 552
Mr. Robert Flowers - Page 9 (DM-109)

another judge to the matter. Id. 18a(c). The Texas Supreme Court has construed a
1977 amendment to section 6 of former article 200a, V.T.C.S., which prescribed a
recusal procedure very similar to the procedure set out in rule 18a. McLeod v.
Harris, 582 S.W.2d 772 (Tex. 1979).9 The court concluded that the judge had a
mandatory duty to request the assignment of another judge to hear the motion for
recusal. Id. at 775.

Grounds for recusal are set out in subsection (2) of rule 18b, which provides
in part:

(2) Recusal
A judge shall recuse himself in any proceeding in which:

(a) his impartiality might reasonably be questioned;

(b) he has a personal bias or prejudice concerning the
subject matter or a party, or personal knowledge of disputed

evidentiary facts concerning the proceeding;

(c) he or a lawyer with whom he previously practiced law
has been a material witness concerning it;

Footnote 3 in McLeod states that the basis for disqualification of a judge is stated in article V,
section 11 of the Texas Constitution and that the constitutional prohibition has been implemented by
V.T.CS. article 15, the Code of Criminal Procedure article 30.01, and canon 3C of the Code of Judicial
Conduct. This footnote was initially thought to say that a statute had added grounds for the
disqualification of a judge to the constitutional grounds. See Robb v. Robb, 605 S.W.2d 390 (Tex. Civ.
App.--E] Paso 1980, no writ) (questioned but followed this reading of the footnote); Calvert,
Disqualification of Judges, 47 Tex. BJ. 1330 (1984) (criticizing this reading). However, subsequent
cases show that McLeod intended no change in the long-standing rule that the constitution prescribes
the only grounds for disqualification. See Manges v. Guerra, 673 S.W.2d 180 (Tex. 1984); Texaco, Inc. v.
Pennzoil, Co., 729 S.W.2d 768, 843 (Tex. App.--Houston [ist Dist.] 1987, writ ref'd n.r.e.), cert. denied,
485 U.S. 994 (1988); River Road Neighborhood Ass'n v. South Texas Sports, Inc., 673 S.W.2d 952, 953
(Tex. App.--San Antonio 1984, no writ).

Pp. 553
Mr. Robert Flowers - Page 10 (DM-109)

(g) he or his spouse, or a person within .. . [certain degrees
of relationship] is acting as a lawyer in the proceeding.’°

(4) In this rule:

(a) “proceeding” includes pretrial, trial, or other stages of
litigation;

(5) The parties to a proceeding may waive any ground for
recusal after it is fully disclosed on the records.

Tex. R. Civ. P. 18b (footnote added).

Rule 18b(2) authorizes a voluntary recusal under the circumstances it sets
out. Dunn v. County of Dallas, 794 S.W.2d 560 (Tex. App.--Dallas 1990, no writ);
Sun Exploration & Production Co. v. Jackson, 729 S.W.2d 310 (Tex. App.--Houston
[1st Dist.] 1987, no writ). The parties may waive a ground for recusal, either
expressly, pursuant to subsection (5) of rule 18b, or by failure to raise it properly
under rule 18a. See Tex. R. Civ. P. 18b(5) (express waiver); DeBlanc v. State, 799
S.W.2d 701 (Tex. Crim. App. 1990), cert. denied, 111 S.Ct. 2912 (1991); Calvert,
Disqualification of Judges, 47 Tex. B.J. 1330 (1984).

We are unable in an attorney general opinion to state when there will be
recusal in a probate matter under the circumstances that you have described. A
judge’s decision to voluntarily recuse himself is a matter for his sole determination.
If a party to a proceeding believes that recusal is necessary, he must follow the
procedure set out in rule 18a, or waive his ground for recusal. The judge assigned to
the matter will decide on the basis of the facts whether recusal is in order. Some of
the facts you set out may cause a party to raise an issue of recusal under rule 18b(2),

10Section 82.064(b) of the Government Code provides that a county judge may not appear and
practice as an attorney in any county or justice court except in cases over which the court in which he
serves has neither original nor appellate jurisdiction. See also Texas Supreme Court, Code of Judicial
Conduct, canons 5 pt. F, 8 pt. C (county judge may not practice law in the court on which he serves or
act as lawyer in proceeding in which he has served as judge).

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Mr. Robert Flowers - Page 11 (DM-109)

but such issues must be resolved on a case-by-case basis in accordance with the
provisions of rules 18a and 18b.

The constitution and several statutes authorize the assignment of a special
judge when the county judge is disqualified, as well as when he is unable to preside
for other reasons. See generally Attorney General Opinion H-1132 (1978) (appoint-
ment of special county judge). Article V, section 16 of the Texas Constitution
provides in part:

When the judge of the County Court is disqualified in any
case pending in the County Court the parties interested may, by
consent, appoint a proper person to try said case, or upon their
failing to do so a competent person may be appointed to try the
same in the county where it is pending in such manner as may be
prescribed by law.

See also Gov't Code §§ 25.0022 (presiding judge of statutory probate courts may
assign special judges to county courts exercising probate jurisdiction), 26.012
(appointment of special judge by governor if county judge is disqualified to act in
probate matter), 26.021, 26.022 (appointment of special judge in counties which
have no county court at law or statutory probate court); Prob. Code § 5 (county
court in counties with no statutory court exercising probate jurisdiction may request
assignment of judge pursuant to Government Code section 25.0022 or transfer
contested probate matter to district court).

Thus, there are various procedures for securing a special judge if the county
judge is disqualified, recuses himself, or is unable to preside for other reasons.

SUMMARY

Article V, section 11 of the Texas Constitution provides for
disqualification of a judge from sitting in a case in which he is
interested, in which either of the parties is connected with him
by a degree of affinity or consanguinity set out in the laws, or in
which he has been counsel in the case. A "case" within the third
ground of disqualification includes an uncontested probate
matter. Whether a judge is disqualified pursuant to article V,
section 11 of the Texas Constitution from presiding in a
particular probate matter requires a case-by-case determination
based on all relevant facts and circumstances.

p. 555
Mr. Robert Flowers - Page 12 (DM-109)

A judge may voluntarily recuse himself pursuant to rule 18b
of the Texas Rules of Civil Procedure. Rule 18a of the Texas
Rules of Civil Procedure authorizes any party to a case to move
for recusal of the judge. The judge may then voluntarily recuse
himself or request the chief administrative judge of the district
to appoint a judge to hear the motion for recusal. We are
unable to conclude as a matter of law that a particular set of
facts would result in a judge’s recusal from a probate matter.

Very truly yours,
» lan Ne ora bs

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General

p. 556