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Rogers v. Bradley8/1/1995
Rehearing Overruled August 30, 1995
On Application for Writ of Error to the Court of Appeals for the Fourteenth District of Texas.
38 Tex. Sup. Ct. J. 1168
Declaration of Recusal
The rule's language is clear, simple and unequivocal: Texas Rule of Appellate Procedure 15a provides that an appellate judge "shall disqualify or recuse himself in any proceeding in which judges must disqualify themselves under Texas Rule of Civil Procedure 18b...." Rule 18b provides in relevant part that a judge "shall recuse himself in any proceeding in which ... his impartiality might reasonably be questioned." Tex.R.Civ.P. 18b(2)(a).
The language is imperative and mandatory, not permissive or discretionary; the standard is objective, not subjective.
The problem is the perception created by a nineteen-minute video produced by TEX-PAC, the political action committee of the Texas Medical Association. A parody of Star Wars entitled Court Wars III, the video was intended to garner support for TEX-PAC's favored candidates for the Texas Supreme Court in the 1992 general election. By analogizing the Texas Trial Lawyers' Association to Darth Vader's evil empire and a "bipartisan coalition of medicine, business, agriculture and industry" to the champions of "fairness, impartiality and reform," the video sought to persuade viewers that the election of certain candidates to the Texas Supreme Court was important in their professional and personal lives. The video urged physicians not only to contribute money, but also to "conduct grass roots efforts ... from ... slate cards to office displays, voter information materials and handouts, to sample letters to communicate with your patients, colleagues and friends, to signature-styled newspaper ads...."
In the 1992 general election, TEX-PAC supported incumbent Justice Jack Hightower's re-election bid, Fifth Court of Appeals Chief Justice Craig T. Enoch's challenge to incumbent Justice Oscar Mauzy, and incumbent Justice Eugene A. Cook's re-election campaign against 131st District Court Judge Rose Spector. While the names of the three endorsed candidates were shown several times on a red-and-white "slate card," all five of the named candidates appeared in the video. Four of the candidates were taped at the Houston Bar Association Litigation Section candidate's forum in early 1992. Footage of then-Justice Mauzy, who did not participate in the forum, was taken from a 1987 CBS 60 Minutes broadcast entitled "Justice for Sale," in which he appeared to defend the then current system of financing Texas judicial campaigns. None of the candidates were filmed expressly or exclusively for the video project, and none of them gave TEX-PAC permission to use their image for the video.
The TEX-PAC video also contained brief comments by two incumbent justices not on the ballot in 1992, Justice Cornyn and Justice Hecht, regarding the importance of involvement in Texas Supreme Court elections. In full, Justice Cornyn states:
Well, unfortunately, it's never the type of job when you can say, "Well, we've fixed it, and we can move on to other things." Unfortunately, the political process is a dynamic process. There is always an ebb and flow. And if you think that you've fixed it and ignore it, then it will fall back into a state of disrepair once again, back to the problems that started the reform movement in the first place.... Working in a campaign headquarters, licking stamps and envelopes, working in a phone bank, putting on fund-raisers in your home, things like that have a--really a disproportionate impact for good in judicial elections.
Justice Hecht's complete comments are as follows
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