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Click here for the full text of this decision FACTS: The panel opinion in this case issued Sept. 11, 2003. The appellant, Tesco American Inc., d/b/a Tesco/Williamsen, subsequently filed a motion seeking to disqualify Justice Laura Carter Higley, author of the opinion, and to reassign the case to a different panel, “to avoid any appearance of impropriety and to promote public confidence in the judicial system.” The court addresses appellant’s motion as a motion to disqualify Justice Higley and to recuse the remaining members of the panel, Chief Justice Sherry Radack and Justice Elsa Alcala. Justice Higley decided not to agree to the disqualification; and Justices Radack and Alcala decided not to recuse themselves. The panel certified the disqualification and recusal matters to the remainder of the court. HOLDING: Denied. An appellate judge, unlike a trial judge, may be disqualified only on constitutional or statutory grounds, not on the basis of the rules of procedure. Texas Rule of Appellate Procedure 16.1. Rule 16.1, governing disqualification, provides, in its entirety, “The grounds for disqualification of an appellate court justice or judge are determined by the Constitution and laws of Texas.” By contrast, Rule 16.2, which provides the grounds for recusal of an appellate justice, states, in relevant part, “The grounds for recusal of an appellate court justice or judge are the same as those provided in the Rules of Civil Procedure.” The comment to the 1997 change emphasizes that, “[f]or grounds for disqualification, reference is made to the Constitution and statutes rather than the Rules of Civil Procedure.” The distinction between disqualification on constitutional grounds and disqualification based on the rules of procedure is crucial because appellant is correct in its claim that an order or judgment rendered by a constitutionally disqualified judge is void. Moreover, disqualification on constitutional grounds cannot be waived and may be raised even after the judgment is beyond appeal. Fry v. Tucker, 202 S.W.2d 218 (Tex. 1947). By contrast, disqualification based on grounds other than express constitutional grounds may be waived. Buckholts Indep. Sch. Dist. v. Glaser, 632 S.W.2d 146 (Tex. 1982). The appellant contends that the constitutional standard for disqualifying an appellate justice who has been “counsel in the case” incorporates the standard for disqualification set out in Texas Rule of Civil Procedure 18b(1)(a), which provides that judges shall disqualify themselves in all cases in which “they have served as a lawyer in the matter in controversy, or a lawyer with whom they previously practiced law served during such association as a lawyer concerning the matter.” Relying on In Re: O’Connor, 92 S.W. 3d 446 (Tex. 2002), the appellant argues that Justice Higley is thus “vicariously disqualified.” The court declines the appellant’s invitation to import the concept of vicarious disqualification into the constitutional standard for disqualification of a judge who has been “counsel in the case.” Collegially determined opinions and judgments are void upon the disqualification of an appellate justice precisely because the grounds for disqualification are constitutional, or at least statutory. An appellate justice is not disqualified from deciding an appeal, and a judgment is not void, merely because of a tangential association between that justice and the appeal that does not present constitutional or statutory grounds for disqualification and that may even be, as here, unknown to the challenged justice. The only grounds alleged for questioning the impartiality of Chief Justice Radack and Justice Alcala or the propriety of their sitting on this case is their participation in deciding an appeal in which the authoring judge was subsequently challenged as having been disqualified. This is not a true challenge to the impartiality of either justice, merely a reference to the collegial nature of the court. The court considers the challenge to be without merit. As to each of the challenged justices who certified the issue of disqualification or recusal to the entire court, a majority of the remaining justices found no reason to disqualify or recuse the justice under consideration. OPINION: Keyes, J., writing for the majority of the en banc court, joined by Chief Justice Radack and Justices Taft, Nuchia, Alcala, and Hanks. Chief Justice Radack and Justice Alcala, not participating in Parts III and IV. Justice Higley, not participating. CONCURRENCE: Hedges, J. “I respectfully concur. I reluctantly join the majority’s conclusion that Rule of Appellate Procedure 16.1 does not require the disqualification of Justice Higley. . . . Having arrived at that conclusion, however, I am still not entirely certain of the scope of rule 18b. . . . “I am also troubled by the apparent difference in grounds for disqualification between district and county court judges, on the one hand, and appellate justices on the other. If there is a logical explanation, it has eluded me. I can perceive no reason why the grounds for disqualification should not be the same. “Finally, I am troubled that the supreme court has not set forth a procedure that would allow a neutral judge or judges to determine whether a court-of-appeals justice is disqualified.” DISSENT: Terry Jennings, J. “In its opinion, the en banc majority holds that Tesco’s”motion to recuse is without merit and groundless.’ I would agree, except that Tesco never made a motion to recuse any member of this Court from deciding this appeal. As noted above, if a majority of this Court wants to deny Tesco’s unprecedented motion to”reassign the case to a new panel,’ it should do so simply in a succinct order. “The en banc majority further holds that”Justice Higley is not constitutionally disqualified from deciding the appeal in this case.’ The Supreme Court may ultimately come to this conclusion in a denial of a writ of mandamus. However, because an objecting party is”entitled to mandamus relief’ to compel a judge’s mandatory disqualification when the judge continues to sit in violation of a constitutional proscription, this is not the en banc Court’s decision to make.”

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