Opinion
13-24-00392-CV
09-27-2024
IN RE DANIEL DE OLIVEIRA, M.D.
On petition for writ of Mandamus
Before the Court En Banc
ORDER
PER CURIAM.
By memorandum opinion issued on August 9, 2024, this Court denied relator Daniel De Oliveira, M.D.'s pro se petition for writ of mandamus. The cause is now before this Court on relator's "Motion for Reconsideration and Motion for Recusal of All [Justices] in the [Thirteenth] Court of Appeals." We deny all relief sought.
I. Recusal
Relator's motion seeks the recusal of all justices on this Court: Chief Justice Dori Contreras, Justice Gina M. Benavides, Justice Nora L. Longoria, Justice Jaime Tijerina, Justice Clarissa Silva, and Justice L. Aron Pena. In his motion, relator asserts that the justices should be recused for the following reasons:
1. Judicial Responsibility and Impartiality: The Relator asserts that the judges of the 13th Court of Appeals have demonstrated a failure to address the jurisdictional issue, including their own jurisdiction to deny the writ of mandamus. This failure is a fundamental breach of their judicial responsibilities and suggests a predisposition or bias that undermines the fairness and impartiality required in adjudicating this case.
2. Conflict of Interest: The continued involvement of the current judges in this case, without addressing the jurisdictional question, raises concerns about potential conflicts of interest and the integrity of the judicial process. Therefore, the Relator respectfully requests the recusal of all judges on the panel to ensure that the case is reviewed by an impartial and competent authority.
Relator offers no other argument or authority in favor of recusal. Nevertheless, he requests that we "appoint an impartial and competent panel to adjudicate this matter."
The Texas Rules of Appellate Procedure provide in relevant part that “[t]he grounds for recusal of an appellate court justice or judge are the same as those provided in the Rules of Civil Procedure.” TEX. R. APP. P. 16.2. Texas Rule of Civil Procedure 18b(b) identifies the grounds for recusal. See TEX. R. CIV. P. 18b(b). Relevant to this case, Rule 18b(b) requires a judge to recuse if “the judge's impartiality might reasonably be questioned” or “the judge has a personal bias or prejudice concerning the subject matter or a party.” Id. R. 18b(b)(1), (2); see State v. Volkswagen Aktiengesellschaft, 692 S.W.3d 467, 472 (Tex. 2022) (per curiam); see also TEX. CODE JUD. CONDUCT, Canons 2(B), 3(B)(5), reprinted in TEX. GOV'T CODE ANN., tit. 2, subt. G, app. B.
Rule 16.3 of the Texas Rules of Appellate Procedure delineates the procedure that must be followed when a motion to recuse an appellate justice or judge has been filed. See TEX. R. APP. P. 16.3; AVPM Corp v. Childers, 583 S.W.3d 216, 217 (Tex. App.- Dallas 2018, no pet.); In re Johnson, 468 S.W.3d 237, 239 (Tex. App.-Amarillo 2015, orig. proceeding) (per curiam). “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.” TEX. R. APP. P. 16.3(b). “The challenged justice or judge must not sit with the remainder of the court to consider the motion as to him or her.” Id.
Pursuant to this procedure, upon the filing of relator's motion to recuse and prior to any further proceedings regarding this petition for writ of mandamus, the justices considered the motion to recuse separately in chambers. See id. Each justice found no reason to recuse. Accordingly, each justice certified the matter of the recusal to the remaining members of the Court. See id. In each instance, the remaining members of the Court, sitting en banc, found no reason to recuse.
The Court, having examined and fully considered the motion for recusal, is of the opinion that the motion to recuse lacks merit as to each of the challenged justices. Accordingly, we deny relator's motion to recuse.
II. Reconsideration
Having determined that none of the justices of this Court should be recused, we now address relator's motion for reconsideration. See TEX. R. APP. P. 49.5, 52.9. Relator's motion for en banc reconsideration is denied.