3 Reasons to Disqualify a Judge In a Criminal Case In Texas
Disqualification of a judge in a criminal case can occur when:
(1) the judge is the injured party;
(2) the judge has been counsel for the accused or the State;
(3) the judge is related to the defendant or complainant by affinity or consanguinity within the third degree. See TEX. CODE CRIM. PROC. ANN. art. 30.01 (Vernon 1981).
Recusal occurs in instances when "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." Degarmo, 922 S.W.2d at 267 (citing William W. Kilgarlin & Jennifer Bruch, Disqualification and Recusal of Judges, 17 ST. MARY'S L.J. 599 (1986)).
"When bias is alleged as a ground for disqualification or recusal, a trial judge ruling on the motion must decide whether the movant has provided facts sufficient to establish that a reasonable person, knowing all the circumstances involved, would harbor doubts about the impartiality of the trial judge." Id. (citing Kemp v. State, 846 S.W.2d 289, 305 (Tex. Crim. App. 1992), cert. denied, 508 U.S. 918, 124 L. Ed. 2d 268, 113 S. Ct. 2361 (1993)).
Bias may be a ground for judicial disqualification or recusal when the bias is "of such character that it denies a defendant due process." Id.
Bias does not constitute grounds for recusal unless it stems "from an extrajudicial source and results in an opinion on the merits on some basis other than what the judge learned from his participation in the case." Kemp, 846 S.W.2d at 305-06 (quoting United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S. Ct. 1698, 1710, 16 L. Ed. 2d 778 (1966)).
The grounds for disqualification are expressly set out in the Texas Constitution. If a judge is disqualified under the constitution, he or she is absolutely without jurisdiction in the case, and any judgment rendered by that judge is void and subject to collateral attack. See Degarmo v. State, 922 S.W.2d 256, 267 (Tex. App.--Houston [14th Dist.] 1996, pet. ref'd) (citing Lee v. State, 555 S.W.2d 121, 124 (Tex. Crim. App. 1977)).