692 S.W.3d 467
Tex.2022Background
- The Texas Attorney General, on behalf of the TCEQ, sued Volkswagen AG and Audi AG (foreign corporations) for alleged violations arising from the "dieselgate" emissions scandal; the Water Code requires such suits be brought in the name of the State.
- Respondents filed special appearances contesting personal jurisdiction; the trial court found jurisdiction, but a divided court of appeals reversed and dismissed the State’s claims.
- The Texas Supreme Court granted review and heard oral argument; while the cases were pending, two justices recused, and the Court temporarily abated the cases.
- The Chief Justice certified the recusals to the Governor under Gov’t Code §22.005, requesting he commission two active appellate/district judges to sit; the Governor appointed two appellate justices.
- Respondents objected, arguing (1) commissioning substitutes would let the State "be the judge of its own cause," (2) Caperton-based due-process concerns required blocking the appointments, and (3) ethical rules would force recusal of any commissioned justice; they sought rescission or dismissal if five of seven justices could not agree.
- The Court denied Respondents’ requests, holding the Governor’s appointments under §22.005 do not, by themselves, violate due process or ethical standards and refusing to dismiss the petitions as improvidently granted.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Respondents) | Held |
|---|---|---|---|
| Whether the Governor’s commissioning of substitute justices under §22.005 violates due process as allowing the State to be judge in its own cause | Commissioned justices are valid substitutes under §22.005; the Governor is not a party and commissioning is constitutional/statutory | The Governor is effectively the State and commissioning makes him the judge in his own cause, creating appearance of partiality | Denied — appointment under §22.005 does not make the Governor a party nor automatically taint commissioned justices |
| Whether Caperton requires disqualification of commissioned justices because the Governor has a personal stake | No Caperton-level personal, pecuniary stake exists here; Governor’s duties to appoint differ from private funder conduct | Caperton dictates recusal because the Governor has sufficient stake/interest in State enforcement outcomes | Denied — Caperton’s extreme facts are not present; no significant direct pecuniary interest or disproportionate influence comparable to Caperton |
| Whether Texas ethical rules and recusal standards require per se disqualification of any justice commissioned under §22.005 | Ethical rules presume impartiality; commissioned judges are subject to same recusal rules and must decide for themselves | Any commission by the Governor creates an appearance of impropriety requiring recusal of commissioned justices | Denied — mere appointment does not create per se disqualification or intolerable appearance of partiality; recusal decisions rest with individual justices |
| Remedy if fewer than five of the remaining justices can concur (i.e., dismissal as improvidently granted) | Court should follow constitutional requirement for five-justice concurrence, but substitute justices enable decision | If five cannot concur, the petitions should be dismissed as improvidently granted | Court refused to adopt Respondents’ proposed path; will not foreclose decision by substitutes and did not order dismissal now |
Key Cases Cited
- Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009) (due process requires recusal when a person with a personal stake had disproportionate influence placing the judge on the case)
- Tumey v. Ohio, 273 U.S. 510 (1927) (judge with direct pecuniary interest cannot preside)
- In re Murchison, 349 U.S. 133 (1955) (a fair tribunal requires a neutral and detached judge)
- Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813 (1986) (mere allegations of bias insufficient; need direct, personal, substantial pecuniary interest)
- Withrow v. Larkin, 421 U.S. 35 (1975) (presumption of judicial honesty and integrity)
- Texaco, Inc. v. Pennzoil, Co., 729 S.W.2d 768 (Tex. App.—Houston [1st Dist.] 1987, writ ref’d n.r.e.) (campaign contributions or isolated contacts ordinarily do not rise to constitutional disqualification)
- Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145 (1968) (arbitrator’s ongoing business relationship with a party created disqualifying interest)