the State of Texas v. Volkswagen Aktiengesellschaft

Supreme Court of Texas

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No. 21-0130

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The State of Texas,

Petitioner,

v.

Volkswagen Aktiengesellschaft,

Respondent

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On Petition for Review from the

Court of Appeals for the Third District of Texas

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~ consolidated with ~

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No. 21-0133

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The State of Texas,

Petitioner,

v.

Audi Aktiengesellschaft,

Respondent

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On Petition for Review from the

Court of Appeals for the Third District of Texas

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PER CURIAM

Justice Blacklock and Justice Young did not participate in this

decision.

We lift the abatement order issued June 24, 2022, and reinstate

these cases to our active docket.

Following the voluntary recusal of two of the Court’s nine justices,

the Chief Justice, pursuant to Texas Government Code

Section 22.005(a), requested that the Governor of the State of Texas

appoint two qualified and active appellate justices or district judges to

participate in the Court’s determination of these consolidated appeals.

Respondents VW Germany and Audi Germany 1 objected and urged the

Chief Justice to rescind the request on the basis that allowing the

Governor to appoint justices in this case would create both due-process

and ethical problems because the State is a party. Respondents argue

that the Court should dismiss the petitions as improvidently granted if

five of the seven remaining justices cannot concur on a decision, as the

Texas Constitution requires. See TEX. CONST. art. V, § 2(a); TEX. R. APP.

P. 56.1(d). For the reasons explained below, we deny Respondents’

requests.

1 We refer to these parties, Volkswagen Aktiengesellschaft (VW

Germany) and its subsidiary Audi Aktiengesellschaft (Audi Germany),

collectively as “Respondents.”

2

I. Background

The Attorney General of the State of Texas, acting on behalf of

the Texas Commission on Environmental Quality (TCEQ), sued two

related foreign corporations—VW Germany and Audi Germany—

asserting violations of Texas environmental statutes 2 in connection with

an alleged vehicle-emissions cheating scandal that has come to be

referred to as “dieselgate.” Respondents filed special appearances

challenging Texas courts’ authority to exercise personal jurisdiction over

them. The trial court concluded Respondents are subject to personal

jurisdiction in Texas, and Respondents appealed. A divided court of

appeals reversed and dismissed the State’s claims. ___ S.W.3d ___, 2020

WL 7640037 (Tex. App.—Austin Dec. 22, 2020). The State sought

review, and this Court granted both petitions and consolidated them for

oral argument, which was heard on February 22, 2022. While the cases

have been pending, two of the Court’s nine justices recused sua sponte.

The Court abated the cases on June 24, and the Chief Justice, relying

on Section 22.005 of the Government Code, requested by letter that the

Governor “commission two persons with the qualifications prescribed for

Justices of the Supreme Court, each either an active appellate court

justice or active district court judge, to participate in the deliberation

and determination of these cases.” By letter dated August 25, 2022,

2 The Texas Water Code requires that such cases be brought by the

Attorney General in the name of the State of Texas. See TEX. WATER CODE

§ 7.105(a).

3

Governor Abbott responded, appointing two active appellate court

justices to participate in the Court’s determination of the cases. 3

Respondents submitted letters to the Court on June 29 and

July 13, 2022, objecting to the Governor’s appointment of the two

substitute justices. They correctly point out that Section 22.005(a) is not

mandatory but, rather, vests the Chief Justice with discretion to request

appointment of justices under these circumstances. And they argue the

Chief Justice should rescind his request because employing the

statutory process here would violate the principle that “no one may be

the judge in his or her own cause.” Respondents advance various

theories in support of this core complaint. Although they acknowledge

the Governor, the Attorney General, and TCEQ (the client-agency in

this case) are different actors, Respondents urge us to treat them—and

the commissioned substitute justices—as if they were all one,

contending that employing the Section 22.005 certification process

“would effectively allow the State to be the judge of its own cause.” Next,

relying on Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009), they

argue that even if the Governor is not technically a named party, he “has

the kind of stake in these cases” that would violate constitutional

guarantees of due process and due course of law if he were to commission

justices under Section 22.005(b). Third, they contend any justice

appointed in this case would be required to recuse under Texas’s

procedural rules and ethical canons. Respondents proclaim there is but

3 The two appointed justices are Chief Justice Bonnie Sudderth of the

Second Court of Appeals and Justice Jaime Tijerina of the Thirteenth Court of

Appeals. Neither participated in this decision regarding Respondents’

objections to their appointment.

4

one path forward if five of the seven remaining justices cannot concur

on a decision as required by our Constitution: to dismiss the petitions as

improvidently granted under Rule of Appellate Procedure 56.1(d),

leaving the jurisdictional question the cases present to be resolved in a

future case.

II. Governing Law

The United States Constitution guarantees that a state shall not

deprive any person of life, liberty, or property without due process of

law. U.S. CONST. amend. XIV, § 1. The Texas Constitution includes a

similar but not identical guarantee. See TEX. CONST. art. I, § 19 (“No

citizen of this State shall be deprived of life, liberty, property, privileges

or immunities, or in any manner disfranchised, except by the due course

of the law of the land.”). A fair trial in a fair tribunal is a basic

requirement of due process. In re Murchison, 349 U.S. 133, 136 (1955).

A fair tribunal, in turn, requires a neutral and detached hearing body or

officer. See Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006)

(citing Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973)). “The due process

clause entitles a person to neutrality in adjudicative proceedings in both

civil and criminal cases. This neutrality helps to guarantee ‘that life,

liberty, or property will not be taken’” in error “while preserving ‘both

the appearance and reality of fairness.’” Texaco, Inc. v. Pennzoil, Co.,

729 S.W.2d 768, 844 (Tex. App.—Houston [1st Dist.] 1987, writ ref’d

n.r.e.) (citation omitted) (quoting Marshall v. Jerrico, Inc., 446 U.S. 238,

242 (1980)). “To this end no man can be a judge in his own case and no

man is permitted to try cases where he has an interest in the outcome.”

Id. (quoting In re Murchison, 349 U.S. at 136). But that interest cannot

5

be defined with precision; “[c]ircumstances and relationships must be

considered.” In re Murchison, 349 U.S. at 136.

While these constitutional guarantees protect the state’s strong

interest in judicial integrity, they rarely are implicated in disputes

regarding judicial disqualification and recusal. See FTC v. Cement Inst.,

333 U.S. 683, 702 (1948) (“[M]ost matters relating to judicial

disqualification [do] not rise to a constitutional level.” (citing Tumey v.

Ohio, 273 U.S. 510, 523 (1927))). “[O]nly in extreme cases would

disqualification on the basis of bias and prejudice be constitutionally

required.” Texaco, 729 S.W.2d at 844 (citing Aetna Life Ins. Co. v.

Lavoie, 475 U.S. 813, 821 (1986)). Allegations of bias and prejudice

typically are not enough to sustain claims that constitutional

due-process rights have been violated. See Aetna, 475 U.S. at 821.

Rather, the judge or justice must have “a more direct stake in the

outcome” of the case. See id.

A further reason that constitutional guarantees are only rarely

implicated in disputes regarding judicial disqualification and recusal is

that Congress and the states, by legislation and rule, have imposed more

rigorous protections of judicial integrity than our Constitutions

mandate. The result is that most cases involving questions of judicial

disqualification and recusal are determined under nonconstitutional

standards. Tumey recognized this:

All questions of judicial qualification may not involve

constitutional validity. Thus matters of kinship, personal

bias, state policy, remoteness of interest, would seem

generally to be matters merely of legislative discretion.

273 U.S. at 523 (citing Wheeling v. Black, 25 W. Va. 266, 270 (1884)).

6

Indeed, the Supreme Court of the United States has recognized

only three situations in which the Due Process Clause requires

disqualification:

(1) when the judge has a financial interest in the outcome of

the case, see id. (judges may not preside over cases in which

they have a “direct, personal, substantial pecuniary

interest”);

(2) when the judge seeks to preside over a contempt

proceeding against a witness who testified in secret before

the judge, see In re Murchison, 349 U.S. at 137 (a judge may

not act as a grand jury and then adjudicate contempt

charges against “the very persons accused as a result of his

investigations”); and

(3) when “a person with a personal stake in a particular case

had a significant and disproportionate influence in placing

the judge on the case by raising funds or directing the

judge’s election campaign when the case was pending or

imminent.” Caperton, 556 U.S. at 884.

Outside of these situations, determinations whether disqualification or

recusal is required are made by reference to the Texas Code of Judicial

Conduct, the Texas Rules of Appellate Procedure, and the Texas Rules

of Civil Procedure.

The grounds for disqualification and recusal under Texas law are

set out in Rule of Civil Procedure 18b. Relevant to this case, Rule 18b

requires a judge to recuse if “the judge’s impartiality might reasonably

be questioned” or “the judge has a personal bias or prejudice concerning

the subject matter or a party.” TEX. R. CIV. P. 18b(b)(1), (2); see TEX. R.

APP. P. 16.2 (“The grounds for recusal of an appellate court justice or

judge are the same as those provided in the Rules of Civil Procedure.”).

Canons 2 and 3 of the Code of Judicial Conduct address these same

7

issues. Titled “Avoiding Impropriety and the Appearance of Impropriety

in All of the Judge’s Activities,” Canon 2 requires that “[a] judge shall

not allow any relationship to influence judicial conduct or judgment.”

TEX. CODE JUD. CONDUCT, Canon 2(B). Similarly, Canon 3 requires a

judge to “perform judicial duties without bias or prejudice.” Id.

Canon 3(B)(5). Notably, the Rules and Canons do not concern

themselves merely with mandating disqualification or recusal where

appropriate; Canon 3(B)(1) also prohibits unnecessary disqualifications

and recusals by mandating that judges “shall hear and decide matters

assigned . . . except those in which disqualification is required or recusal

is appropriate.” Id. Canon 3(B)(1) (emphasis added). This prohibition

reflects a recognition that a too-casual approach to disqualification or

recusal would threaten to frustrate our judicial system.

Where, as here, a justice has determined that recusal is

appropriate, Government Code Section 22.005 sets forth a process by

which substitute justices may be commissioned to participate in the

Court’s determination of a case. It states that “when one or more

justices of the supreme court have recused themselves . . . or are

disqualified . . . to hear and determine a case in the court,” the “chief

justice may certify” that fact to the Governor. TEX. GOV’T CODE

§ 22.005(a). In that event, Section 22.005(b) mandates that the

Governor “immediately shall commission the requisite number of

persons who are active appellate or district court justices or judges and

who possess the qualifications prescribed for justices of the supreme

court to try and determine the case.” Id. § 22.005(b). This statutory

commissioning power is derived from the Texas Constitution, which has

8

required since 1876 that when any member of the Court is “disqualified

to hear and determine any case or cases in said court, the same shall be

certified to the Governor of the State, who shall immediately

commission” a substitute justice. TEX. CONST. art. V, § 11.

Our Constitution also authorizes the Governor to appoint judges

when “[a] vacancy in the office of Chief Justice, Justice, or Judge of the

Supreme Court, the Court of Criminal Appeals, the Court of Appeals, or

the District Courts” arises, usually due to death or retirement. Id.

art. V, § 28(a). Because Texas has more than 500 justices and district

court judges, the Governor is called upon to exercise this constitutional

appointment power on a routine basis. See News – Appointment, OFF.

TEX. GOVERNOR, https://gov.texas.gov/news/category/appointment (last

visited Nov. 10, 2022) (reflecting the Governor has appointed more than

ten justices and judges so far this calendar year). Regardless of the

circumstances giving rise to the need for a judicial appointment, Texas

justices and judges are presumed to act impartially. See Rodriguez v.

State, 491 S.W.3d 18, 33 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d)

(citing Brumit, 206 S.W.3d at 645) (requiring “a clear showing of bias”

to rebut the presumption of a judge’s impartiality); see also Withrow v.

Larkin, 421 U.S. 35, 47 (1975) (stating that there is a “presumption of

honesty and integrity in those serving as adjudicators”). And they are

bound by the same ethical rules regarding disqualification and recusal,

regardless of whether they took office by means of election or

appointment.

9

III. Discussion

A. Commissioning justices does not amount to allowing the

State to “be the judge of its own cause”

Respondents argue that allowing the Governor to commission two

justices to participate in the Court’s determination of these cases is

tantamount to allowing the State “to be the judge of its own cause” and

“would create an appearance of partiality that the Court should avoid at

all costs.” Respondents’ argument rests on two fallacies: (1) that the

Governor is the State and thus effectively a party in these cases, even if

not named as such; and (2) that commissioned justices, by virtue of

having been appointed by the Governor, must be partial to the State or,

at a minimum, will necessarily appear to an ordinary person to be

partial to the State.

The claim that the Governor’s commissioning of temporary

justices would be attributable to the State, the named plaintiff,

misunderstands the nature and structure of Texas’s government. As

Respondents concede in their July 13 letter, “Texas does not have a

unitary executive.” See In re Abbott, 645 S.W.3d 276, 280 (Tex. 2022)

(“[T]he Texas Constitution does not vest the executive power solely in

one chief executive. Instead, the executive power is spread across

several distinct elected offices . . . .”).

In Texas, it is not the Governor but the Attorney General, a

distinct and separately elected officer, who has authority to initiate and

conduct enforcement actions on the State’s behalf. See TEX. CONST.

art. IV, §§ 1, 2, 22; In re Abbott, 645 S.W.3d at 283-84 (holding that “the

Governor lacks the authority to investigate or prosecute” a state

agency’s enforcement actions). Consistent with the Texas Constitution,

10

the enforcement actions here were brought not by the Governor but by

the Attorney General, as authorized by the Water and Government

Codes. See TEX. WATER CODE § 7.105(b) (requiring TCEQ to refer

certain environmental violations to the Attorney General for

enforcement); 4 TEX. GOV’T CODE § 402.021 (establishing the Attorney

General’s duty to “prosecute and defend all actions in which the state is

interested before the supreme court and courts of appeals”). Because

these actions were not brought by the Governor, at his direction, or on

his authority, we do not impute the status of party to the Governor

himself. The State acts through its officers, to be sure, but the Governor

is not automatically implicated in every state action or even every

executive-branch action.

Our cases acknowledge the separateness of a government entity

and its constituent government actors. In Abbott v. Mexican American

Legislative Caucus, this Court considered the distinction between the

State and the Governor for purposes of identifying the proper defendant.

647 S.W.3d 681, 698 (Tex. 2022) (“[C]laims . . . may be brought against

the relevant governmental entity.” (emphasis added)). We determined

that the State was not the proper defendant for one of the plaintiffs’

claims, whereas the Governor or the Secretary of State may have been.

Id. at 698, 704. In short, actors within the executive branch, be they

individuals or entities, are not interchangeable and cannot be

considered alter egos of one another. For this reason, the fact that these

4 Though the Attorney General acts on behalf of TCEQ in bringing such

enforcement actions, the Water Code requires that such actions be brought “in

the name of the state.” TEX. WATER CODE § 7.105(a).

11

enforcement actions were brought by the Attorney General on behalf of

and at the request of TCEQ is insufficient to impute party status to the

Governor.

Nor does the Governor’s authority to appoint TCEQ

commissioners or officers justify imputing party status to him. Though

the Legislature creates agencies within the executive department, their

“animating statutes do not subject their decisions to the Governor’s

direct control,” and where the Governor has the authority to appoint

agency officers, the “enabling statutes rarely give the Governor formal

control over the officers’ decisions once appointed.” See In re Abbott, 645

S.W.3d at 280 & n.1. TCEQ’s enabling statute is structured in this way.

See TEX. WATER CODE § 5.052(a) (“The commission is composed of three

members who are appointed by the governor with the advice and consent

of the senate to represent the general public.”); id. § 5.126 (requiring

TCEQ to report its enforcement actions to the Governor, Lieutenant

Governor, and Speaker of the House of Representatives); id. § 5.178

(requiring TCEQ to prepare and file biennial reports of its activities to

the Governor and the Legislature). The Governor may appoint TCEQ

commissioners and receive reports on its activities, but nothing in

TCEQ’s enabling statute gives him the authority to direct their actions.

Respondents claim the Governor has a direct interest in this

lawsuit because it will potentially increase the state’s general fund. But

the Governor, of course, holds no pecuniary interest in the general fund.

And Respondents overstate the extent of his control over the state’s

appropriations and budgeting decisions. The appropriation of the state

budget, including the general revenue fund, lies within the power of the

12

legislative department. See TEX. CONST. art. III, §§ 5(b), 35 (recognizing

the Legislature’s authority to act on appropriations and to pass a

general appropriations bill); TEX. GOV’T CODE §§ 316.021, .022

(requiring the Legislature to consider and approve general

appropriations bills); id. § 322.008 (requiring the Legislative Budget

Board to prepare the general appropriations bill for approval by the

Legislature). The Governor is involved in the budget process, to be sure.

He may prepare a budget for the Legislature’s consideration. See id.

§§ 401.0445, .046. And he consults with the Legislative Budget Board

to adopt achievement goals for the government. See id. § 2056.006. His

biennial budget, which he delivers to the Legislature, is often used as a

“guiding policy statement.” SENATE RESEARCH CENTER, BUDGET 101: A

GUIDE TO THE BUDGET PROCESS 12 (2007). But the Governor’s policy

guidance ultimately is advisory; it does not supplant the Legislature’s

ultimate authority to consider, negotiate, and approve or deny the

general appropriations bill. In sum, the Governor’s status as the elected

officer that leads the executive branch does not justify imputing other

state actors’ conduct or party status to him.

Respondents’ claim that the Governor’s commission of substitute

justices under Section 22.005 amounts to allowing “the State to be the

judge of its own cause” fails for another reason. A judge appointed by

the Governor does not, by virtue of his or her appointment, become the

State’s judge. By this, we mean that the mere fact of being appointed

does not taint a judge with partiality in the State’s favor. It does not

support the assertion, pressed heavily by Respondents, that

commissioned justices—whether appointed temporarily for

13

participation in one case or to complete an unexpired term prior to a

general election—will necessarily seek to advance the State’s interests

in the cases that come before them. Indeed, the very nature of an

independent judiciary requires that judges act neutrally and not seek to

further one party’s interests. See Rodriguez, 491 S.W.3d at 33 (citing

Brumit, 206 S.W.3d at 645) (judges are presumed to act impartially).

Respondents’ complaint that a commissioned justice would be acting as

“the State” in the State’s cause is at odds with the very nature of judging.

B. This case is not like Caperton or any other case requiring

disqualification or recusal

Respondents next contend that the Governor is constitutionally

prohibited from commissioning justices to hear these cases. They rely

heavily on Caperton, asserting that even if the Governor is not actually

a party, he has a “personal stake” in the case such that his appointment

of two substitute justices to participate in the determination of these

cases would violate due process. Notably, Respondents do not complain

that either of the two commissioned justices has a personal bias or

individual circumstance that requires disqualification or recusal;

indeed, Respondents objected to their appointment before their

identities were known. Respondents instead contend that the

Governor’s role in the Section 22.005 process taints every justice or judge

who could be appointed. In their view, the Governor’s appointment of

any justice is constitutionally intolerable.

Caperton is the centerpiece of Respondents’ argument, and a

recitation of its “extraordinary” and “extreme” facts demonstrates it

does not control this case. See 556 U.S. at 887. Hugh Caperton had

obtained a $50 million judgment against A.T. Massey Coal in West

14

Virginia state court. Id. at 872. After Massey appealed, Caperton

challenged one justice’s participation in the case on the grounds that

Massey’s president, chairman, and chief executive officer, Don

Blankenship, contributed $3 million to benefit the justice’s judicial

campaign while the appeal was pending. Id. at 873. The candidate won

the election—becoming Justice Benjamin—and participated in the

decision of the case over Caperton’s objection. Id. at 873-74. Justice

Benjamin denied Caperton’s motion to disqualify and voted with the

three-justice majority, which reversed the judgment against Massey. Id.

at 874.

The case took strange turns on rehearing. Photos surfaced of one

justice “vacationing with Blankenship in the French Riviera,” leading

that justice to recuse. Id. at 874. Yet another justice recused on

Massey’s motion, based on his public criticism of Blankenship’s role in

the election. Id. at 874-75. But Justice Benjamin again denied a motion

seeking his disqualification, despite the urging of a recused justice, who

noted that “Blankenship’s bestowal of his personal wealth, political

tactics, and ‘friendship’ have created a cancer in the affairs of th[e

court].” Id. at 875 (internal quotation marks omitted). Justice Benjamin

then became the acting chief justice responsible for selecting two

substitute justices to replace the two who recused. Id. Caperton again

objected, but Justice Benjamin denied the motion anew, and the newly

comprised court again reversed the judgment against Massey. Id.

The United States Supreme Court granted certiorari and held

that due process requires recusal when a “person with a personal stake

in a particular case ha[s] a significant and disproportionate influence in

15

placing the judge on the case by raising funds . . . when the case [is]

pending or imminent” and the result is that, in effect, “a man chooses

the judge in his own cause.” Id. at 884, 886. Blankenship held a

personal financial interest in the outcome of the case and had

disproportionate influence in securing Justice Benjamin’s election to the

court. See id. at 884. Justice Benjamin, in turn, obtained a

multi-million-dollar benefit from Blankenship but nevertheless

participated in the decision of the case over Caperton’s repeated

objections and then proceeded to exercise the appointment power to

choose two other judges. See id. at 873, 875. The Court concluded these

circumstances created “a serious, objective risk of actual bias” sufficient

to require Justice Benjamin’s recusal whether or not actual bias exists

or can be proved. Id. at 886. Yet it noted the unlikelihood that such a

fact pattern would arise again, dismissing the dissent’s concerns that its

decision would result in “a flood of recusal motions” or “unnecessary

interference with judicial elections” because the facts were “extreme by

any measure.” Id. at 887.

Caperton is different from this case in meaningful respects. First,

the Governor has constitutional and statutory duties to appoint justices

and judges. TEX. CONST. art. V, §§ 11, 28(a); TEX. GOV’T CODE

§§ 22.005(b), .217(b). Blankenship, by contrast, was under no duty to

support Justice Benjamin’s campaign. His participation in assisting

Justice Benjamin in winning election to the West Virginia court was

voluntary. In the Court’s view, Blankenship’s participation reasonably

could be perceived as having been motivated by his personal financial

16

interest in having the Massey judgment reversed. See Caperton, 556

U.S. at 886.

Second, analogizing the Governor to Blankenship does not work

because, unlike in Caperton, the Governor does not confer on the

commissioned justices anything of pecuniary value. The commissioned

justices do not receive more pay for having been commissioned, and, on

the other side of the coin, commissioning these justices requires no

financial outlay by the Governor. There is no basis for imagining a quid

pro quo exists between them. Blankenship made a multi-million-dollar

outlay for Justice Benjamin’s benefit and vacationed with another

justice while Massey’s appeal was pending. Id. at 873-74.

Third, unlike in Caperton, the factors weighing against requiring

recusal here carry vast significance for our judicial system itself. In

Caperton, Justice Benjamin’s recusal would have had no ill effect on the

judicial system. Had he recused, another justice could have served in

his stead. Massey would not have lost its right to appeal, only its desire

to have it determined by Blankenship’s preferred justices. Here, by

contrast, adopting Respondents’ theory would hinder the normal

operation of Texas’s highest civil court. If no substitute judge or justice

could ethically participate in the decision of these cases and the

remaining justices could not reach a five-justice consensus, the Court

would have no choice but to raise a white flag and dismiss the State’s

appeal without reaching its merits. Neither the due-process guarantee

nor our ethical rules contemplate that their application would bring the

courts to such a grinding halt. See Cameron v. Greenhill, 582 S.W.2d

775, 776 (Tex. 1979) (“The Constitution does not contemplate that

17

judicial machinery shall stop. If this is threatened, the doctrine of

necessity will permit the judge to serve.” (citing Hidalgo Cnty. Water

Control & Improvement Dist. No. 1 v. Boysen, 354 S.W.2d 420, 423 (Tex.

App.—San Antonio 1962, writ ref’d))).

Nor is this case like the others in which the United States

Supreme Court has held due process requires disqualification. Tumey,

on which Caperton relies, involved a city mayor who himself acted as the

judge in cases in which he stood to receive a personal financial benefit if

he obtained a conviction. See Tumey, 273 U.S. at 520. Here, by contrast,

the Governor has not commissioned himself to serve as a justice in these

cases. Likewise, the substitute justices have no financial incentive to

favor one side over the other.

Aetna Life Insurance Co. v. Lavoie likewise illustrates that mere

allegations of bias and prejudice of the type alleged here are insufficient

to create a constitutional due-process violation. See 475 U.S. at 821.

Aetna claimed a state supreme court justice, Justice Embry, was biased

against it because Justice Embry had brought a pending class action

against insurers, the outcome of which would be affected by the court’s

decision in Aetna’s case. Id. at 817. Yet Justice Embry authored the

per curiam opinion that had the “immediate effect of enhancing both the

legal status and the settlement value of his own case.” Id. at 818, 824.

The existence of this concrete, personal, pecuniary interest led the Court

to conclude that Justice Embry had impermissibly “acted ‘as a judge in

his own case.’” See id. at 824 (quoting In re Murchison, 349 U.S. at 136).

Here, Respondents can point to no such personal, pecuniary interest

that would justify disqualifying the entire Texas judiciary.

18

Aetna’s treatment of justices other than Justice Embry is likewise

instructive. The Court refused to disqualify the other justices despite

Aetna’s assertion that they were potential class members in Justice

Embry’s suit. Id. at 825. The Court concluded that any purported

interest other justices might have was too slight and indirect and,

importantly here, doing so on such a slight basis “might require the

disqualification of every judge in the State.” Id. (noting that if

circumstances did require all justices to recuse, a “rule of necessity”

might apply so that “none of the judges or justices would be

disqualified”).

Aetna is thus instructive on several fronts. First, mere

allegations of bias and prejudice are generally insufficient to establish a

constitutional violation; a violation is likely only to occur where there

are extreme facts giving rise to a “direct, personal, substantial,

pecuniary interest” in the case. See id. at 821-22 (quoting Tumey, 273

U.S. at 523)). Second, a pecuniary interest must be direct, rather than

speculative and contingent, to raise constitutional concerns. See id. at

826. Third, the Court recognized the rule of necessity permits judges to

hear cases in which they might otherwise be recused if the case cannot

be heard otherwise. See id. at 825 (citing United States v. Will, 449 U.S.

200, 214 (1980) (allowing federal judges to participate in hearing a

matter in which all Article III judges had a pecuniary interest)).

Texas courts have similarly concluded that a single campaign

contribution to a judge, in the absence of other compounding factors,

does not present an “appearance of bias and prejudice” that would rise

to the level of a constitutional violation. See Texaco, 729 S.W.2d at

19

844-45. In that case, Texaco argued that disqualification of a judge who

had received a campaign contribution from a lawyer participating in the

case was required by Commonwealth Coatings Corp. v. Continental

Casualty Co., 393 U.S. 145 (1968). Texaco, 729 S.W.2d at 844. The court

of appeals distinguished Commonwealth on the basis that it involved the

appeal of an arbitration award in which one of the arbitrators had an

ongoing, sporadic business relationship with one of the parties,

including “the rendering of services on the very projects involved in the

lawsuit.” Texaco, 729 S.W.2d at 845. In contrast, the trial judge in

Texaco had “neither participated with Pennzoil in the case being tried

nor enjoyed even ‘the slightest pecuniary interest’ in the outcome of the

trial.” Id. (quoting Tumey, 273 U.S. at 524). So too here. Because the

commissioned justices do not enjoy even the slightest pecuniary interest

in this case’s outcome, their participation raises no constitutional

concerns.

C. Ethical standards do not require per se disqualification of

every justice or judge commissioned pursuant to

Section 22.005

Respondents also assert that the Governor should not commission

substitute justices because commissioning any justice or judge pursuant

to Section 22.005 would create an appearance of impropriety in the mind

of an ordinary person. The argument ignores a fundamental legal

principle—justices and judges are presumed to act impartially and

honestly. See Rodriguez, 491 S.W.3d at 33 (citing Brumit, 206 S.W.3d

at 645) (requiring clear showing of individual judge’s bias to rebut

presumption of impartiality); see also Withrow, 421 U.S. at 47.

Respondents’ theory turns the presumption upside-down: in their view,

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a reasonable person would necessarily look askance at even the noblest

of judges with unquestionable ethics if they were commissioned to serve

in these cases.

Yet, even leaving the presumption aside, we are not convinced

that a justice’s acceptance of the Governor’s appointment to participate

in the determination of these cases would create in reasonable minds a

perception that the justice is unable to carry out his or her

responsibilities with integrity, impartiality, and competence. The

commissioning statute requires that a temporary justice be selected

from among the state’s “active appellate or district court justices or

judges.” TEX. GOV’T CODE § 22.005(b). The eligible justices and judges

routinely—and ethically—decide cases in which the State, the Governor,

or other state officials are parties. We trust they could meet those same

ethical obligations in these cases.

In short, we do not agree that the mere fact of the Governor’s

selection of justices or judges to participate in a particular case would

necessarily create in reasonable minds a perception that these justices

or judges would be unable to carry out their responsibilities with

integrity, impartiality, and competence; otherwise, every eligible justice

or judge would necessarily be disqualified. In these cases, as in all other

cases, whether to recuse must be a decision for the commissioned justice

or judge in the first instance. See TEX. R. CIV. P. 18b.

IV. Conclusion

The Governor’s appointment of two substitute justices to

participate in the determination of these cases does not, in and of itself,

create a serious risk of actual bias under Caperton and therefore does

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not violate the due-process or due-course-of-law provisions. Nor does it,

standing alone, taint the commissioned justices with the appearance of

partiality or impropriety under Texas ethical rules. We therefore deny

Respondents’ requests to withdraw the Chief Justice’s certification

letter and to dismiss the petitions as improvidently granted.

OPINION DELIVERED: November 18, 2022

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