                                       In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                              ____________________

                               NO. 09-15-00269-CV
                              ____________________

          IN RE COMMITMENT OF RANDY LOUIS DUPREE
__________________________________________________________________

                On Appeal from the 435th District Court
                      Montgomery County, Texas
                    Trial Cause No. 14-08-08850 CV
__________________________________________________________________

                          MEMORANDUM OPINION

      The State of Texas filed a petition to commit Randy Louis Dupree as a

sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-.151

(West 2010 & Supp. 2015). A jury found that Dupree is a sexually violent

predator, and the trial court rendered a final judgment and an order of civil

commitment. In one appellate issue, Dupree challenges the denial of his motion to

recuse the trial judge. We affirm the trial court’s judgment.

      We review the denial of a motion to recuse under an abuse of discretion

standard. In re Commitment of Winkle, 434 S.W.3d 300, 310 (Tex. App.—

Beaumont 2014, pet. denied). A judge must be recused when his “impartiality

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might reasonably be questioned[]” or he has a “personal bias or prejudice

concerning the subject matter or a party[.]” Tex. R. Civ. P. 18b(b)(1), (2). The

complaining party “must show that a reasonable person, with knowledge of the

circumstances, would harbor doubts as to the impartiality of the trial judge, and

that the bias is of such a nature and extent that allowing the judge to serve would

deny the movant’s right to receive due process of law.” Winkle, 434 S.W.3d at 311.

      In this case, Dupree based his motion to recuse on several instances of

conduct by Judge Michael T. Seiler that Dupree argued demonstrated bias and

prejudice. Dupree complained of comments that Judge Seiler made during

speeches to the Texas Patriots PAC and the Montgomery County Republican

Women, as well as comments and slogans made during his re-election campaign.

Dupree pointed to the fact that Judge Seiler had also been recused from other cases

involving sexually violent predators.

      At the recusal hearing, Dupree argued that Judge Seiler had received a

public reprimand from the Texas Judicial Conduct Commission (“the

Commission”).1 Additionally, Dupree argued that the Texas Legislature had before

it an amendment to the SVP statute that sought to eliminate Judge Seiler’s

exclusive jurisdiction over SVP cases. According to Dupree, both local attorneys
      1
       Several respondents filed motions to recuse, which the assigned judge
addressed in a single hearing.
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and non-lawyers had questioned Judge Seiler’s behavior. Dupree presented

deposition testimony from Dr. John Tennison, an expert witness, regarding the

manner in which Judge Seiler treated Tennison when he testified in SVP cases.

The assigned judge denied Dupree’s motion, stating that he did not believe that

Judge Seiler’s “attitude, the satire, the poor humor and, truthfully, the misconduct

that the Commission found, has come into this court to deny individuals the right

to a fair trial.”

       On appeal, Dupree maintains that the assigned judge abused his discretion

by denying the motion to recuse because “Judge Seiler has proven himself to not

only lack impartiality as a judge, but also a deep-seated bias towards the subject

matter and individuals like Appellant in civil commitment proceedings, proven by

the pervasive, well-documented history of extra-judicial comments and actions that

he has engaged in for nearly a decade.” We first note that this Court has previously

addressed whether Judge Seiler’s campaign materials and speeches required

recusal, and we held that “the assigned judge could reasonably conclude that Judge

Seiler’s statements did not constitute such bias or prejudice as to deny [the

respondent] a fair trial.” In re Commitment of Terry, No. 09-15-00053-CV, 2015

Tex. App. LEXIS 9570, **4-7 (Tex. App.—Beaumont Sept. 10, 2015, pet. denied)

(mem. op.); see also Winkle, 434 S.W.3d at 310-13. Additionally, “[t]he

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determination of whether recusal is necessary must be made on a case-by-case

fact-intensive basis.” McCullough v. Kitzman, 50 S.W.3d 87, 89 (Tex. App.—

Waco 2001, pet. denied). Accordingly, Judge Seiler’s recusal in other cases has no

bearing on whether the assigned judge abused his discretion by denying Dupree’s

motion. See id.

      On April 24, 2015, the Commission considered the following when issuing

its public reprimand of Judge Seiler: (1) Judge Seiler’s conduct towards attorneys

employed by the State Counsel for Offenders and Tennison; (2) the Texas Patriots

PAC meeting; and (3) the numerous motions for recusal of Judge Seiler and the

granted recusal orders. The Commission concluded that:

             . . . Judge Seiler engaged in numerous instances in which he
      treated attorneys from the State Counsel for Offenders office, as well
      as one of their expert witnesses, in a manner that was less than patient,
      dignified and courteous. While a judge has a duty to maintain order
      and decorum in the courtroom, which may require that he take
      appropriate measures to address situations in which an attorney or
      witness may be acting inappropriately, Canon 3B(4) of the Texas
      Code of Judicial Conduct prohibits that judge from belittling,
      degrading and/or demeaning the attorney, witness, or anyone else with
      whom the judge deals in an official capacity. Moreover, Judge Seiler’s
      comments . . . were sufficiently impatient, discourteous and
      undignified to cause a reasonable person to perceive that Judge Seiler
      harbored such a bias against the SCFO attorneys, their expert witness,
      and the offenders themselves, that a fair trial was not possible. Based
      on the incidents described above, the Commission concludes that
      Judge Seiler’s conduct constituted willful and persistent violations of
      Canons 3B(4) and 3B(5) of the Texas Code of Judicial Conduct, and
      Article V, §I-a(6)A of the Texas Constitution.
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             . . . Judge Seiler’s presentation before the Texas Patriots PAC
      could cause a reasonable person to perceive that Judge Seiler would
      not be fair and impartial while presiding over civil commitment
      proceedings, in violation of Canon 4A(1) of the Texas Code of
      Judicial Conduct. Moreover, Judge Seiler’s public comments about
      specific offenders whose cases were subject to his court’s continuing
      jurisdiction, did suggest to a reasonable person how he would rule
      when those individuals come before the court in future proceedings, in
      violation of Canon 3B(10) of the Texas Code of Judicial Conduct.
      Because Judge Seiler was recused from several civil commitment
      cases as a direct result of his presentation before the Texas Patriots
      PAC, the Commission concludes that his extrajudicial conduct
      interfered with the proper performance of his duties, in violation of
      Canon 4A(2) of the Texas Code of Judicial Conduct.

Public Reprimand and Order of Additional Education of Michael Thomas Seiler,

435th District Court Judge, CJC Nos. 12-0737-DI; 12-1143-DI; 13-0027-DI; 13-

0235-DI; 13-0373-DI; 15-0129-DI;15-0374 (Comm’n Jud. Conduct Apr. 24,

2015). The Commission ordered Judge Seiler to obtain four hours of instruction

with a mentor judge in the following areas: “(1) the appropriate treatment of

attorneys, witnesses, and others with whom the judge deals in an official capacity;

(2) avoiding bias and appearance of bias; and (3) avoiding extrajudicial conduct

that casts doubt on a judge’s capacity to act impartially and/or interferes with the

proper performance of the judge’s duties.”

      Additionally, the Texas Legislature originally vested exclusive authority

over SVP cases in the 435th Judicial District Court in Montgomery County. See

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Act of May 30, 1999, 76th Leg., R.S., ch. 1188, § 4.01, sec. 841.041(a), 1999 Tex.

Gen. Laws 4122, 4146; see also Act of May 28, 2007, 80th Leg., R.S., ch. 1342, §

5, 2007 Tex. Gen. Laws 4563, 4564. The Texas Legislature has since repealed this

provision and amended the SVP statute to remove this exclusive jurisdiction. See

Act of May 21, 2015, 84th Leg., R.S., ch. 845, §§ 7, 39, 2015 Tex. Gen. Laws

2700, 2703, 2711. According to the amendment’s Bill Analysis:

      [T]he court that conducts the civil commitment trial is a specialty
      court, the 435th [D]istrict Court of Montgomery County, with state
      employees serving as Special Prosecutors and the Texas Board of
      Criminal Justice, Office of State Counsel for Offenders as defense
      attorneys. The court is currently in complete disarray. Public
      statements by the elected judge from Montgomery County have
      rendered him ineffective and led to his recusal from hearing cases he
      is designated by statute to hear. This is having a negative impact on
      the entire Second Administrative Judicial District impacting 35 other
      counties.

Senate Comm. on Criminal Justice, Bill Analysis, Tex. S.B. 746, 84th Leg., R.S.

(2015). However, the amendment does not preclude Judge Seiler from presiding

over SVP cases, but rather provides that a petition alleging predator status may be

filed “in the court of conviction for the person’s most recent sexually violent

offense[.]” Tex. Health & Safety Code Ann. § 841.041(a) (West Supp. 2015).

      The misconduct of which Dupree complains occurred before the

Commission’s public reprimand. On May 7, 2015, when the assigned judge ruled

on Dupree’s motion, the Commission had issued its public reprimand of Judge
                                        6
Seiler. Thus, the assigned judge was entitled to presume that, since being publicly

reprimanded and the amending of the SVP statute, Judge Seiler would “divest

himself of any previous conceptions, and . . . base his judgment, not on what he

originally supposed but rather upon the facts as they are developed at the trial.”

Lombardino v. Firemen’s & Policemen’s Civil Serv. Comm’n, 310 S.W.2d 651,

654 (Tex. Civ. App.—San Antonio 1958, writ ref’d n.r.e.); see Terry, 2015 Tex.

App. LEXIS 9570, at *7. In doing so, the assigned judge could reasonably

conclude that Judge Seiler’s statements did not constitute such bias or prejudice as

to deny Dupree a fair trial. See Winkle, 434 S.W.3d at 311. Because the assigned

judge did not abuse his discretion by denying Dupree’s motion to recuse, we

overrule Dupree’s sole issue and affirm the trial court’s judgment.

      AFFIRMED.



                                             ______________________________
                                                    STEVE McKEITHEN
                                                        Chief Justice

Submitted on March 29, 2016
Opinion Delivered April 21, 2016

Before McKeithen, C.J., Kreger and Horton, JJ.




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