Bennie Fuelberg v. State
410 S.W.3d 498
Tex. App.2013Background
- Bennie Fuelberg, former general manager of Pedernales Electric Cooperative (PEC), was convicted by a jury of misapplication of fiduciary property, theft, and money laundering; jury assessed 10-year sentences but recommended community supervision and restitution of $126,000.
- Fuelberg and co-defendant moved to disqualify/recuse the presiding judge, Hon. Daniel H. Mills, asserting (1) a pecuniary interest as a PEC member who could benefit from restitution and (2) that Mills was a putative victim; motions referred to assigned judge Bert Richardson who denied them.
- This Court previously denied mandamus relief challenging Richardson’s rulings; the panel declines to treat that mandamus denial as binding law of the case and reviews de novo.
- The record showed Mills had a small PEC capital-credit account (~$1,200) and had received a single $18 distribution; PEC operates statutorily "without profit to its members," returning margins as refunds or rate reductions.
- The court concluded the PEC membership interest was not a disqualifying pecuniary interest (analogy to utility customer), but remanded to determine whether Mills was an "injured party" or should have been recused under the objective reasonable-person standard because Richardson applied an incorrect, subjective standard in ruling on recusal.
Issues
| Issue | Plaintiff's Argument (Fuelberg) | Defendant's Argument (State / Judge Richardson) | Held |
|---|---|---|---|
| Whether Judge Mills had a disqualifying pecuniary interest from PEC membership | Mills could indirectly benefit if restitution increased PEC margins and member distributions; that creates a financial interest disqualifying him | PEC distributions are refunds/rate reductions under statute; Mills’s interest is like a utility customer and is too attenuated to disqualify | Denied — no disqualifying pecuniary interest (Mills’s PEC membership not disqualifying) |
| Whether Judge Mills was an "injured party" (personal interest) under art. 30.01 | As a PEC member, Mills was among the victims of the alleged scheme and thus an injured party; he may be biased | PEC, not individual members, is named victim; whether Mills is an injured party depends on facts whether he was a victim in the criminal episode | Deferred — remanded for factual determination under Whitehead reasonable-person standard |
| Whether the assigned judge (Richardson) abused discretion by denying recusal | Richardson should have recused Mills because his impartiality might reasonably be questioned given PEC interest and victim status | Richardson relied on Mills’s representations of impartiality and minimal distributions; he denied recusal | Richardson abused discretion by applying subjective standard; appeal abated and remanded for a new recusal hearing applying objective reasonable-person standard |
| Other trial errors (admission of two witnesses; restitution amount) | Trial court abused discretion in admitting hearsay and violated Confrontation Clause; restitution exceeded jury verdict | State defends admissibility and restitution order | Not reached — appellate review abated pending recusal proceedings |
Key Cases Cited
- Tesco Am., Inc. v. Strong Indus., 221 S.W.3d 550 (Tex. 2007) (disqualification under the Constitution voids judge’s acts)
- Whitehead v. State, 273 S.W.3d 285 (Tex. Crim. App.) (judge may be an "injured party" if a reasonable person would doubt impartiality)
- Ex parte Ellis, 275 S.W.3d 109 (Tex. App.—Austin) (objective reasonable-person standard for recusal under rule 18b(b)(1))
- Pahl v. Whitt, 304 S.W.2d 250 (Tex. Civ. App.—El Paso 1957) (electric cooperative membership held disqualifying on its facts)
- Herndon, 215 S.W.3d 901 (Tex. Crim. App.) (trial court abuses discretion when it misapplies recusal law)
- Koll v. State, 157 S.W.2d 377 (Tex. Crim. App. 1941) (disqualified judge may perform only ministerial acts; discretionary acts void)