Bennie FUELBERG, Appellant v. The STATE of Texas, Appellee.
No. 03-11-00317-CR.
Court of Appeals of Texas, Austin.
Aug. 27, 2013.
410 S.W.3d 498
Therefore, even if Crutcher met her burden to establish a prima facie case of retaliation, the summary judgment evidence shows legitimate, non-retaliatory reasons for DISD‘s decision, and Crutcher failed to demonstrate that these reasons were merely pretextual. Under these circumstances, the trial court did not err in granting summary judgment. All of Crutcher‘s issues are overruled.
III. CONCLUSION
Having resolved all of Crutcher‘s issues against her, we affirm the trial court‘s judgment.
Dustin M. Howell, Bill Davis, Assistant Solicitor General, Office of the Attorney General, Austin, TX, for the State of Texas.
Before Chief Justice JONES, Justices PEMBERTON and FIELD.
OPINION
SCOTT K. FIELD, Justice.
A jury found appellant Bennie Fuelberg guilty of misapplication of fiduciary property, theft, and money laundering. See
BACKGROUND
The Pedernales Electric Cooperative (PEC) is a member-owned utility that provides electrical service to twenty-four counties in Central Texas. See
Prior to trial, Fuelberg and Demond filed motions to disqualify or, alternatively, recuse Judge Mills from their respective cases. The motions asserted that as a PEC member, Judge Mills had a financial interest in the outcome of the trial and was a putative victim of the alleged offenses. Following a brief discussion with the parties, Judge Mills declined to voluntarily recuse himself and referred the motions to the presiding judge, who assigned the motions to the Honorable Bert Richardson. See
After a nine-day trial, the jury found Fuelberg guilty of third-degree misapplication of fiduciary property, theft, and money-laundering, indicating that the value of the property misapplied, stolen, and laundered was between $20,000 and $100,000. See
DISCUSSION
Fuelberg raises seven issues on appeal, which we group into the following four complaints. First, Fuelberg asserts that Judge Mills was disqualified from presiding over his trial, and therefore his trial and conviction are void. Second, Fuelberg claims that Judge Richardson abused his discretion in failing to recuse Judge Mills from Fuelberg‘s trial. Third, Fuelberg argues that the trial court abused its discretion in admitting the testimony of two witnesses because their testimonies were hearsay and violated the confrontation clause. Finally, Fuelberg claims that the trial court erred in ordering restitution above the amount reflected in the jury‘s verdict. We will address Fuelberg‘s first two appellate issues in turn and need not reach his third and fourth issues, as explained below.
Disqualification
In his first issue on appeal, Fuelberg asserts that Judge Mills was disqualified from presiding over his trial. See
“Since Texas became a state in 1845, judicial disqualification has always been a matter of constitutional dimension.” Tesco Am., Inc., 221 S.W.3d at 551. The Texas Constitution provides that “[n]o judge shall sit in any case wherein the judge may be interested....”
A disqualified judge may perform a ministerial act, but “is prohibited from performing any and all acts that call for the exercise of judicial discretion.” Koll v. State, 143 Tex. Crim. 104, 157 S.W.2d 377, 379 (1941) (concluding disqualified judge‘s order transferring venue was void). Thus any discretionary orders or judgments by a disqualified judge are void. See Whitehead v. State, 273 S.W.3d 285, 289 (Tex. Crim.App.2008) (noting that if trial judge is disqualified under article 30.01 of Code of Criminal Procedure, conviction is nullity). Therefore, if Judge Mills was disqualified from Fuelberg‘s trial, Fuelberg‘s judgment of conviction and all of Judge Mills‘s discretionary rulings would be void and this case would be remanded for new proceedings.
Standard of review
Whether a judge is disqualified is a question of law that we generally review de novo. However, the State asserts that this Court‘s prior mandamus opinion--in which we rejected Fuelberg‘s disqualification and recusal issues--is the law of the case. See In re Fuelberg, 2010 Tex.App. LEXIS 1256, at *2-4; see also Texas Parks & Wildlife Dep‘t v. Dearing, 240 S.W.3d 330, 338 (Tex.App.-Austin 2007, pet. denied) (explaining law-of-the-case doctrine). “Under the law-of-the-case doctrine, a court of appeals is ordinarily bound by its initial decision on a question of law if there is a subsequent appeal in the same case.” Dearing, 240 S.W.3d at 348. If a prior legal conclusion is the law
The law-of-the-case doctrine is prudential rather than statutory, and the decision to revisit a previous holding is generally left to the discretion of the court under the particular circumstances of a given case. City of Houston v. Jackson, 192 S.W.3d 764, 769 (Tex.2006). When a court denies mandamus without any comment on the merits, the mandamus is not the law of the case. Perry Homes v. Cull, 258 S.W.3d 580, 586 (Tex.2008). Some courts have held that the law-of-the-case doctrine may apply when the court‘s denial of mandamus addresses the merits. See, e.g., In re B.G.D., 351 S.W.3d 131, 141 (Tex.App.-Fort Worth 2011, no pet.). This Court has never extended the doctrine to a mandamus ruling. Without foreclosing the possibility of our doing so in the future, for purposes of this appeal we will not treat our previous denial of mandamus as law of the case, and we will address the disqualification issue de novo.
Pecuniary interest
Fuelberg аsserts that Judge Mills was disqualified from this case, in part, because he had a pecuniary interest in the subject-matter in controversy. See
“It is a settled principle of law that the interest which disqualifies a judge is that interest, however small, which rests upon a direct pecuniary or personal interest in the result of the case.” Cameron v. Greenhill, 582 S.W.2d 775, 776 (Tex.1979). Thus, if a judge has a direct financial interest in the outcome of the case, such as stock ownership in a company who is a party to litigation, the judge is disqualified. See Williams v. City Nat‘l Bank of Quanah, 27 S.W. 147, 148 (Tex.Civ.App.-Fort Worth 1894, no writ) (concluding that ten shares in bank that was party to suit disqualified trial judge).
However, a judge‘s interest which is “merely indirect, incidental, remote, contingent, or possible” or based on his status as “a resident or taxpayer” in which he “will be no more affected by any decision which may be made in thе case than every other citizen of the county who is a taxpayer” is not disqualifying. Elliott v. Scott, 119 Tex. 94, 25 S.W.2d 150, 152 (1930). For this reason, a judge is not disqualified from hearing a case that may affect a public utility or regulated utility of which he is a customer. See
By statute, an electric cooperative like the PEC “shall operate without profit to its members.” See
This statutory framework is consistent with the testimony of the PEC‘s Chiеf Financial Officer, Michael Vollmer, at the disqualification and recusal hearing concerning how the PEC calculates reimbursements to its members. Vollmer explained that excess funds, which he called “margins,” are calculated annually and then allocated to each member‘s “capital credit account” based on the “relative amount of electricity that [the member] purchased during the previous year.” From there, the PEC board of directors can “distribute” portions of each member‘s capital credit account to the member. Vollmer emphasized that margins should not be called profits and distributions should not be cаlled dividends, indicating that they are distinguishable, at least from an accounting standpoint.
At the time of the recusal hearing, Judge Mills had approximately $1,200 in his PEC capital credit account. Judge Mills did not receive a distribution from this account until 2007--27 years after he first became a PEC member--and that distribution was for approximately $18. Vollmer‘s testimony indicated that the PEC would be making more distributions in the near future. Furthermore, Vollmer testified that any restitution that was ordered in this case could increase the PEC‘s margin, thereby increasing the amount allocated to each member‘s capital credit account for that year, which in turn could lead to a larger distribution in the future.
Fuelberg asserts that the potential distribution that Judge Mills could receive from ordering restitution is a direct, disqualifying pecuniary interest. Fuelberg relies primarily on Pahl v. Whitt, 304 S.W.2d 250, 252 (Tex.Civ.App.-El Paso 1957, no writ), which appears to be the only Texas case that directly addresses whether a judge‘s membership in a utility cooperative is disqualifying. The court in Pahl concluded that the interest was disqualifying because “if a Cooperative makes money, its members may receive dividends in the form of money or lowered rates for electricity, thus such members are in very much the same situation as stockholders in a corporation.” Id. To the extent Pahl can be read to mean that distributions by all utility cooperatives are like dividends from a private corporation, we respectfully disagree. See 304 S.W.2d at 252. Each case must be reviewed on its own facts with regard to the character of the cooperative‘s distributions to its members.
Given the statutory framework and real-world application at PEC, as outlined above, the PEC‘s distributions to its mem-
The record indicates that Judge Mills has nо other financial interest in the PEC. Although PEC members are technically owners, their ownership is nontransferable--even to subsequent property owners--and terminates upon their withdrawal or death. Vollmer testified that if the PEC dissolved, members could be entitled to the amounts in their capital credit accounts, but there is no indication that they would be entitled to any other distribution. Therefore, the only financial interest that Judge Mills has in the PEC is in the rates that he pays, or should have paid, for utility service, which is indistinguishable from the interest of a public utility customer. See
Finally, as the State correctly notes, this is a criminal proceeding, and neither the PEC nor its members arе actually parties to this case. Therefore, Judge Mills‘s potential financial interest is even more attenuated than it would be in a civil case because he stood to gain only if Fuelberg was convicted; Judge Mills, in his discretion, ordered Fuelberg to pay restitution; the PEC increased the allocations to its members’ capital credit accounts based on that restitution; and then the PEC Board, in its discretion, approved a distribution to its members from the increase in their capital credit accounts. We have not found any Texas cases that address whether a trial judge‘s potential benefit from criminal restitution can be disqualifying, and the fedеral cases on the issue are split.5 See United States v. Rogers, 119 F.3d 1377, 1383 (9th Cir.1997) (noting cir-
Furthermore, those federal courts which have found that this type of interest can be disqualifying noted that only a judge with a “substantial interest” in the corporate victim of the crime should disqualify himself. See United States v. Nobel, 696 F.2d 231, 234-35 (3d Cir.1982). The court in Nobel explained that a judge who owned stock in the “corporate victim of the crimes does not have a ‘financial interest in the subject matter in controversy,‘” but for sake of appearance may nonetheless be required to be disqualified. Id. Given that the Texas rules governing financial interests do not require disqualification for the sake of appearances, the federal court‘s reasoning in Nobel аppears to be more in line with Texas‘s recusal standards, and thus has little if any applicability to disqualification under Texas law. See supra n. 5. In addition, although the court in Nobel did not define what “substantial interest” means, there is nothing in the record that could arguably support a claim that Judge Mills has a substantial financial interest in either the PEC or the outcome of this case. See 696 F.2d at 234-35 (concluding that judge‘s impartiality might reasonably be questioned when he owned between $10,000 and $15,000 in victim‘s corporate stock).
Therefore, we conclude that Judge Mills did not have a disqualifying pecuniary interest in the subject matter of this case. Judge Richardson did not err in denying Fuelberg‘s motiоn to disqualify Judge Mills on this basis. We overrule Fuelberg‘s first appellate issue with respect to Judge Mills‘s pecuniary interest in this case.
Injured Party
Fuelberg also asserts that Judge Mills was disqualified from this case as a putative victim of the offenses alleged. Specifically, Fuelberg claims that as a PEC member, Judge Mills was a “party injured” within the meaning of article 30.01 of the Code of Criminal Procedure. Therefore, according to Fuelberg, Judge Mills has a disqualifying personal interest in the subject matter at issue.
Article 30.01 states that “[n]o judge or justice of the peace shall sit in any case where he may be the party injured....”
Whether the judge was named as the victim in the indictment, however, does not necessarily end the inquiry. The court of criminal appeals recently addressed a similar case in which the trial judge was not namеd in the indictment but was nonetheless involved in the underlying offense. See Whitehead v. State, 273 S.W.3d 285, 286 (Tex. Crim.App.2008). In that case, the judge was one of the people threatened
Given that Judge Mills is not the victim named in the indictment, he is an injured party, if at all, because he was a victim in the criminal transaction or episode at issue such that a reasonable person would doubt his impartiality. See id. Judge Richardson did not make findings of fact or conclusions of law as to whether Judge Mills was an injured party within the meaning of article 30.01 or whether a reasonable person would doubt his impartiality.
As we will discuss below, we are abating this appeal and remanding this cause for a new hearing on the issue of whether Judge Mills should have been recused under rule 18b(b)(1) of the Rules of Civil Procedure. The objective reasonable-person standard for disqualification established in Whitehead is identical to the objective reasonable-person standard for recusal under rule 18b(b)(1). Compare Whitehead, 273 S.W.3d at 286, with Ex parte Ellis, 275 S.W.3d 109, 115–17 (Tex.App.-Austin 2008, no pet.) (describing objective reasonable-person standard for recusal under rule 18b(b)(1)). Therefore, we will also abate this appeal and remand this cause with instructions to determine whether Judge Mills is disqualified as an injured party under Whitehead. See 273 S.W.3d at 286; see also Gamez v. State, 644 S.W.2d 879, 880-81 (Tex.App.-San Antonio 1982, pet. ref‘d) (abating case and remanding for factual determination of whether trial judge was disqualified under article 30.01).
Recusal
In his second issue оn appeal, Fuelberg asserts that Judge Richardson erred in denying his motion to recuse Judge Mills. Specifically, Fuelberg argues that Judge Mills should have been recused because, given his financial interest in the PEC and his status as a victim of the offenses alleged, his “impartiality might reasonably be questioned.”6 See
In determining whether recusal is required, “the proper inquiry is whether a reasonable member of the public at large, knowing all the facts in the public domain concerning the judge and the case, would have a rеasonable doubt that the judge is actually impartial.” Ex parte Ellis, 275 S.W.3d at 115-17 (internal quotations omitted). Thus, unlike the subjective issue of whether Judge Mills has a personal or pecuniary interest in this case, recusal is determined from an objective standard, and asks whether a reasonable person would doubt that Judge Mills could remain impartial. Id. As discussed above, we will not treat our previous mandamus opinion as law of the case with respect to recusal. Therefore, we review Judge Richardson‘s ruling on Fuelberg‘s recusal motion for an abuse of discretion. Wesbrook v. State, 29 S.W.3d 103, 120 (Tex.Crim.App.2000).
Judge Richardson issued an order denying Fuelberg‘s disqualification and recusal motions, in which he adopted the findings оf fact and conclusions of law he previously announced during the disqualification and recusal hearing. At the hearing, Judge Richardson mostly focused on the motion to disqualify and made only the following findings of fact and conclusions of law with respect to recusal:
The recusal issue is something completely different. They argue the recusal issue under the Code of Judicial Conduct and that Judge Mills could not be fair and impartial. And the only thing I have to rely on at this point is as to Cannon [sic] Four, which states the following: “A judge shall conduct all of the judge‘s extra-judicial activities so that they do not cast reasonable doubt on the judge‘s capacity to act impartially as a judge or interfere with the proper performance of judicial duty.” I haven‘t found any cases directly on point that deal with this issue, although the defense relies on Whitt,8 and I‘ll comment on that in just a minute.
Specifically, Judge Mills stated in court during the first hearing when the motion to recuse and disqualify was first brought to his attention that he could be fair and impartial, that he had no recol-
lection of ever having received any kind of check from PEC, and didn‘t feel like he needed to step aside. And so the Court is relying on that representation to resolve the recusal issue, and that is that he can be. The defense chose not to call him, so that is the only thing that is reflectеd in the record as to whether or not he could be fair and impartial so I‘ll rely on his representation that he can be.
Judge Richardson also issued a supplemental order, in which wrote that “neither side chose to call Judge Mills as a witness. Therefore, the Court will rely upon the Judge‘s representations in the record vis-a-vis his ability to be fair and impartial.” Judge Richardson noted that Judge Mills had received only one distribution for $18, and concluded “[t]hat amount hardly seems sufficient to create a bias that rises to the level of recusal or disqualification--especially in light of his statements to the contrary in the first hearing on the matter.” These are Judgе Richardson‘s only findings or comments with respect to Fuelberg‘s recusal motion.
At no point in his oral pronouncement, his original order, or his supplemental order did Judge Richardson reference the objective reasonable-person standard that applies to recusal. Judge Richardson‘s findings of fact and conclusions of law indicate that he applied a subjective standard to determine whether Judge Mills was in fact impartial, relying solely on Judge Mills‘s own subjective state of mind and beliefs concerning whether he could be fair and impartial. Instead, Judge Richardson should have determined whether a reasonable person would doubt Judgе Mills‘s impartiality. Therefore, we conclude that Judge Richardson abused his discretion by applying the incorrect legal standard to Fuelberg‘s motion to recuse. See State v. Herndon, 215 S.W.3d 901, 907 (Tex.Crim.App.2007) (noting that trial court abuses discretion when misapplies the law).
Based upon this conclusion, we now must decide the appropriate remedy. One of our sister court of appeals recently addressed a similar case in which a recusal court abused its discretion by “misapplying or misinterpreting recusal law.” See Kniatt v. State, 239 S.W.3d 910, 919-920 (Tex.App.-Waco 2007, no pet.) (op. on reh‘g). In that case, the appellate court noted that it had “not determined that the assigned judge abused his discretion in denying [the defendant‘s] rеcusal motion under a correct application of recusal law.” Id. at 920. Therefore, the appellate court concluded that it should abate the appeal and remand the case for a new recusal hearing so that the court below could apply the correct recusal standard. Id. at 922 (citing several cases from other courts of appeals abating appeal for new recusal hearing). The court took this action even though the trial court had already rendered a judgment of conviction.
We have determined that this procedural approach is appropriate in this case. The record does not clearly establish as a matter of law that Judge Mills should or should not have been recused. Furthermore, Judge Richardson has not considered or determined whether a reasonable person would doubt Judge Mills‘s impartiality. Therefore, we will abate this appeal and remand the case for a new recusal hearing with instructions to apply the correct reasonable-person standard. Because we are abating this appeal and remanding this case for a new recusal hearing, we need not reach Fuelberg‘s remaining issues at this time. See
CONCLUSION
We overrule Fuelberg‘s complaint that Judge Mills was disqualified based on his alleged pecuniary interest in the subject-matter of this case. We abate this appeal and remand this cause for a new hearing, with instructions to address whether, under an objective reasonable-person standard, Judge Mills (1) was disqualified as an interested party, see Whitehead, 273 S.W.3d at 286, or (2) should have been recused because his impartiality might reasonably be questioned, see
The district court shall submit to this Court its findings and conclusions, along with a transcription of the hearing, in a supplemental clerk‘s record and reporter‘s recоrd on or before October 28, 2013. At that time, we may request supplemental briefing from the parties as necessary.