Thomas Florence v. Robbie L. Guarnelo

Order issued December 19, 2017

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-17-000690-CV ——————————— THOMAS FLORENCE, Appellant V. ROBBIE L. GUARNELO, Appellee

On Appeal from the County Court at Law No. 2 Galveston County, Texas Trial Court Case No. 16FD3374

MEMORANDUM ORDER

Currently pending before this Court is appellant’s pro se “Motion for Recusal,” which seeks to recuse all justices on this Court.

Texas Rule of Appellate Procedure 16.3 prescribes the procedure to be followed for recusal of an appellate justice:

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. The challenged justice or judge must not sit with the remainder of the court to consider the motion as to him or her.

TEX. R. APP. P. 16.3(b).

When, as in this case, a party challenges all the members of the court, the motion is decided by the court under the procedures set forth in Rule 16.3. See id.; see, e.g., Cameron v. Greenhill, 582 S.W.2d 775, 776–77 (Tex. 1979) (denying motion to disqualify entire Texas Supreme Court); Cogsdil v. Jimmy Fincher Body Shop, LLC, No. 07-16-00303-CV, 2016 WL 7321788, at *1 (Tex. App.—Amarillo Dec. 12, 2016, order) (treating recusal motion as addressed to entire Court).

Accordingly, upon the filing of appellant’s recusal motion and prior to any further proceedings in this appeal, each of the challenged justices of this Court considered the motion in chambers. See TEX. R. APP. P. 16.3(b); see also Cogsdil, 2016 WL 7321788, at *1; Cannon v. City of Hurst, 180 S.W.3d 600, 601 (Tex. App.—Fort Worth 2005, order). Chief Justice Radack and Justices Jennings, Keyes, Higley, Bland, Massengale, Brown, Lloyd, and Caughey each found no reason to recuse themselves and certified the matter to the remaining members of the en banc court. See TEX. R. APP. P. 16.3(b); Cogsdil, 2016 WL 7321788, at *1; Cannon, 180 S.W.3d at 601. This Court then followed the accepted procedure set out in Rule 16.3. See TEX. R. APP. P. 16.3(b); Cannon, 180 S.W.3d at 601. The *3 justices deliberated and decided the motion to recuse with respect to each challenged justice by a vote of the remaining participating justices en banc. See TEX. R. APP. P. 16.3(b); Cogsdil, 2016 WL 7321788, at *1; Cannon, 180 S.W.3d at 601. No challenged justice sat with the other members of the Court when his or her challenge was considered. See TEX. R. APP. P. 16.3(b); Manges v. Guerra, 673 S.W.2d 180, 185 (Tex. 1984); Cogsdil, 2016 WL 7321788, at *1; McCullough v. Kitzman, 50 S.W.3d 87, 88 (Tex. App.—Waco 2001, order).

Having considered the motion as to each challenged justice, and finding no basis for recusal, the motion to recuse is denied with respect to each challenged justice. See Manges, 673 S.W.2d at 185; McCullough, 50 S.W.3d at 89. The Court enters the following orders:

ORDER DENYING MOTION AS TO CHIEF JUSTICE RADACK

To the extent that appellant’s pro se “Motion for Recusal” requests recusal of Chief Justice Radack, it is ordered that the motion to recuse is denied.

The Court consists of: Justices Jennings, Keyes, Higley, Bland, Massengale, Brown, Lloyd, and Caughey.

ORDER DENYING MOTION AS TO JUSTICE JENNINGS

To the extent that appellant’s pro se “Motion for Recusal” requests recusal of Justice Jennings, it is ordered that the motion to recuse is denied.

The Court consists of: Chief Justice Radack and Justices Keyes, Higley, Bland, Massengale, Brown, Lloyd, and Caughey.

ORDER DENYING MOTION AS TO JUSTICE KEYES

To the extent that appellant’s pro se “Motion for Recusal” requests recusal of Justice Keyes, it is ordered that the motion to recuse is denied.

The Court consists of: Chief Justice Radack and Justices Jennings, Higley, Bland, Massengale, Brown, Lloyd, and Caughey.

ORDER DENYING MOTION AS TO JUSTICE HIGLEY

To the extent that appellant’s pro se “Motion for Recusal” requests recusal of Justice Higley, it is ordered that the motion to recuse is denied.

The Court consists of: Chief Justice Radack and Justices Jennings, Keyes, Bland, Massengale, Brown, Lloyd, and Caughey.

ORDER DENYING MOTION AS TO JUSTICE BLAND

To the extent that appellant’s pro se “Motion for Recusal” requests recusal of Justice Bland, it is ordered that the motion to recuse is denied.

The Court consists of: Chief Justice Radack and Justices Jennings, Keyes, Higley, Massengale, Brown, Lloyd, and Caughey.

ORDER DENYING MOTION AS TO JUSTICE MASSENGALE

To the extent that appellant’s pro se “Motion for Recusal” requests recusal of Justice Massengale, it is ordered that the motion to recuse is denied.

The Court consists of: Chief Justice Radack and Justices Jennings, Keyes, Higley, Bland, Brown, Lloyd, and Caughey.

ORDER DENYING MOTION AS TO JUSTICE BROWN

To the extent that appellant’s pro se “Motion for Recusal” requests recusal of Justice Brown, it is ordered that the motion to recuse is denied.

The Court consists of: Chief Justice Radack and Justices Jennings, Keyes, Higley, Bland, Massengale, Lloyd, and Caughey.

ORDER DENYING MOTION AS TO JUSTICE LLOYD

To the extent that appellant’s pro se “Motion for Recusal” requests recusal of Justice Lloyd, it is ordered that the motion to recuse is denied.

The Court consists of: Chief Justice Radack and Justices Jennings, Keyes, Higley, Bland, Massengale, Brown, and Caughey.

ORDER DENYING MOTION AS TO JUSTICE CAUGHEY

To the extent that appellant’s pro se “Motion for Recusal” requests recusal of Justice Caughey, it is ordered that the motion to recuse is denied.

The Court consists of: Chief Justice Radack and Justices Jennings, Keyes, Higley, Bland, Massengale, Brown, and Lloyd.

PER CURIAM

Do not publish. TEX. R. APP. P. 47.2(b).