Zsolt Petko and Zsuzsanna Adam v. Carelton Courtyard

Opinion

Order issued August 30, 2018

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-17-00918-CV ——————————— ZSOLT PETKO AND ZSUZSANNA ADAM, Appellants V. CARELTON COURTYARD, Appellee

On Appeal from the County Court at Law No. 2 Galveston County, Texas Trial Court Cause No. CV-0077741

MEMORANDUM ORDER Currently pending before this Court is appellants Zsolt Petko and Zsuzsanna

Adam’s pro se “Complaint and Request for New Judges,” construed as a Motion to

Recuse because it seeks to recuse the panel justices who issued the July 24, 2018

Order on Further Motion for Rehearing. 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 the members of the panel, the Motion

to Recuse is first sent to the panel and then, if the panel does not recuse, the Motion

is certified and decided by the remaining en banc court under the procedures set forth

in Rule 16.3. See TEX. R. APP. P. 16.3(b); see, e.g., Cameron v. Greenhill, 582

S.W.2d 775, 775–77 (Tex. 1979) (denying motion to disqualify entire Texas

Supreme Court); Thomas Florence v. Robbie L. Guarnelo, No. 01-17-00690-CV,

(Tex. App.—Houston [1st Dist.] Dec. 19, 2017, mem. order) (per curiam) (treating

recusal motion as addressed to entire 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) (same).

Accordingly, upon the filing of appellants’ Motion to Recuse and prior to

any further proceedings in this appeal, each of the challenged panel 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). Justices Jennings, Keyes, and Higley 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 remaining justices

deliberated and decided the Motion to Recuse with respect to each challenged panel

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 panel 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 panel justice, and

finding no basis for recusal, the Motion to Recuse is denied with respect to each

challenged panel 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 JUSTICE JENNINGS

To the extent that appellants’ pro se Motion to Recuse requests recusal of

Justice Jennings, it is ordered that the Motion to Recuse is denied. The Court consists of: Chief Justice Radack and Justices Bland, Massengale,

Brown, Lloyd, and Caughey.

ORDER DENYING MOTION AS TO JUSTICE KEYES

To the extent that appellants’ pro se Motion to Recuse requests recusal of

Justice Keyes, it is ordered that the Motion to Recuse is denied.

The Court consists of: Chief Justice Radack and Justices Bland, Massengale,

ORDER DENYING MOTION AS TO JUSTICE HIGLEY

To the extent that appellants’ pro se Motion to Recuse requests recusal of

Justice Higley, it is ordered that the Motion to Recuse is denied.

The Court consists of: Chief Justice Radack and Justices Bland, Massengale,

PER CURIAM