      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-11-00317-CR



                                    Bennie Fuelberg, Appellant

                                                  v.

                                   The State of Texas, Appellee


    FROM THE DISTRICT COURT OF BLANCO COUNTY, 424TH JUDICIAL DISTRICT
         NO. CR01015, HONORABLE DANIEL H. MILLS, JUDGE PRESIDING



                                           OPINION


               A jury found appellant Bennie Fuelberg guilty of misapplication of fiduciary

property, theft, and money laundering. See Tex. Penal Code §§ 31.03, 32.45, 34.02. The jury

assessed punishment at ten years’ imprisonment for each offense, but recommended that the

sentences be suspended and Fuelberg be placed on community supervision. In seven appellate

issues, Fuelberg asserts that (1) the trial judge, the Honorable Daniel H. Mills, was disqualified from

the case; (2) the assigned judge abused his discretion in failing to recuse Judge Mills; (3) the trial

court abused its discretion in admitting testimony of two of the State’s witnesses; and (4) the trial

court erred in its determination of restitution. We will abate and remand this appeal.


                                         BACKGROUND

               The Pedernales Electric Cooperative (PEC) is a member-owned utility that provides

electrical service to twenty-four counties in Central Texas. See Tex. Util. Code §§ 161.001–.254
(describing formation and operation of utility cooperatives). Any resident in the PEC’s service area

is required to join the PEC in order to receive electric service, and as of 2008 the PEC had over

225,000 members. As a utility cooperative, the PEC operates on a non-profit basis, meaning that

the rates, fees, and other charges paid by PEC members can be spent only on reasonable business

expenses, and any excess revenue must be refunded to members. See id. § 161.059.

               Fuelberg was the general manager of the PEC from 1976 until his retirement in

February of 2008, and was given broad authority to oversee its day-to-day operations. The State

alleged that between November 1996 and March 2007, Fuelberg conspired with Walter Demond

to funnel over $200,000 in PEC funds through Demond’s law firm to Fuelberg’s brother and the

son of a former PEC board member. The State charged Fuelberg and Demond with first-degree

misapplication of fiduciary property and theft and second-degree money laundering. See Tex. Penal

Code §§ 31.03, 32.45, 34.02.

               Prior to trial, Fuelberg and Demond filed motions to disqualify or, alternatively,

recuse Judge Mills from their respective cases. The motions asserted that as a PEC member,

Judge Mills had a financial interest in the outcome of the trial and was a putative victim of the

alleged offenses. Following a brief discussion with the parties, Judge Mills declined to voluntarily

recuse himself and referred the motions to the presiding judge, who assigned the motions to the

Honorable Bert Richardson. See Tex. R. Civ. P. 18a (prescribing procedure for resolving motions

to disqualify and recuse).1 Judge Richardson conducted a hearing after which he denied Fuelberg’s


       1
          Although Fuelberg and Demond were tried separately, they filed identical motions to
disqualify and recuse Judge Mills, and Judge Richardson conducted a single hearing for both
Fuelberg’s and Demond’s motions.

                                                 2
and Demond’s motions. Fuelberg and Demond filed petitions for writ of mandamus, seeking orders

from this Court directing Judge Richardson to reverse his rulings. This Court denied the mandamus

petitions. See In re Fuelberg, No. 03-10-00027-CV, 2010 Tex. App. LEXIS 1256, at *2–4 (Tex.

App.—Austin Feb. 19, 2010, orig. proceeding [leave denied]) (mem. op.).

                After a nine-day trial, the jury found Fuelberg guilty of third-degree misapplication

of fiduciary property, theft, and money-laundering, indicating that the value of the property misapplied,

stolen, and laundered was between $20,000 and $100,000. See Tex. Penal Code §§ 31.03(e)(5),

32.45(c)(5), 34.02(e)(2). Following a punishment hearing, the jury assessed punishment at ten

years’ imprisonment for each offense, but recommended that the sentence be suspended and

Fuelberg be placed on community supervision. The trial court rendered a judgment consistent with

the jury’s verdict, and also ordered Fuelberg to pay $126,000 in restitution. This appeal followed.


                                            DISCUSSION

                Fuelberg raises seven issues on appeal, which we group into the following four

complaints. First, Fuelberg asserts that Judge Mills was disqualified from presiding over his trial,

and therefore his trial and conviction are void. Second, Fuelberg claims that Judge Richardson

abused his discretion in failing to recuse Judge Mills from Fuelberg’s trial. Third, Fuelberg argues

that the trial court abused its discretion in admitting the testimony of two witnesses because their

testimonies were hearsay and violated the confrontation clause. Finally, Fuelberg claims that the

trial court erred in ordering restitution above the amount reflected in the jury’s verdict. We will

address Fuelberg’s first two appellate issues in turn and need not reach his third and fourth issues,

as explained below.

                                                   3
Disqualification

                In his first issue on appeal, Fuelberg asserts that Judge Mills was disqualified from

presiding over his trial. See Tex. Const. art. V, § 11. Specifically, Fuelberg claims that Judge Mills

was disqualified because, as a PEC member, he (1) had a pecuniary interest in the subject matter in

controversy and (2) had a personal interest in the case because he was putative victim of the alleged

offenses. See id.; Tex. R. Civ. P. 18b(a)(1) (defining disqualifying financial interest);2 Tex. Code

Crim. Proc. art. 30.01 (defining “injured party” as disqualifying interest). According to Fuelberg,

Judge Mills lacked authority to hear this case, and thus the underlying proceedings are void.

See Tesco Am., Inc. v. Strong Indus., Inc., 221 S.W.3d 550, 555 (Tex. 2006) (noting that if trial judge

is disqualified, any orders or judgments issued by court are “void and without effect”).

                “Since Texas became a state in 1845, judicial disqualification has always been a

matter of constitutional dimension.” Tesco Am., Inc., 221 S.W.3d at 551. The Texas Constitution

provides that “[n]o judge shall sit in any case wherein the judge may be interested . . . .” Tex. Const.

art. V, § 11. Rule 18b(a) of the Rules of Civil Procedure and article 30.01 of the Code of Criminal

Procedure clarify when a judge is disqualified, but these statutes “expound rather than expand the

Constitution.” Tesco Am., Inc., 221 S.W.3d at 553. Therefore, regardless of whether disqualification

is discussed in terms of Rule 18b(a) or article 30.01, disqualification is a constitutional issue in this


        2
          Although this is a criminal case, it is well established that the standards for disqualification
and recusal of a trial judge provided for in the Rules of Civil Procedure are applicable in the criminal
context “absent an explicit or implicit legislative intent indicating otherwise.” Gaal v. State, 332
S.W.3d 448, 452–53 (Tex. Crim. App. 2011) (applying rule 18b of Rules of Civil Procedure to
disqualification and recusal issue in criminal case) (internal quotations omitted). We cite to the
current versions of the Rules of Civil Procedure for convenience because there have been no
intervening amendments that are material to our disposition of this appeal.

                                                    4
case. See id.; see also Kilgarlin & Bruch, Disqualification and Recusal of Judges, 17 St. Mary’s L.J.

599, 602 (1986) (discussing “constitutional statutory provisions” that embody article V, section 11

of Texas Constitution).

               A disqualified judge may perform a ministerial act, but “is prohibited from performing

any and all acts that call for the exercise of judicial discretion.” Koll v. State, 157 S.W.2d 377, 379

(Tex. Crim. App. 1941) (concluding disqualified judge’s order transferring venue was void). Thus

any discretionary orders or judgments by a disqualified judge are void. See Whitehead v. State,

273 S.W.3d 285, 289 (Tex. Crim. App. 2008) (noting that if trial judge is disqualified under article

30.01 of Code of Criminal Procedure, conviction is nullity). Therefore, if Judge Mills was disqualified

from Fuelberg’s trial, Fuelberg’s judgment of conviction and all of Judge Mills’s discretionary

rulings would be void and this case would be remanded for new proceedings.


Standard of review

               Whether a judge is disqualified is a question of law that we generally review de novo.

However, the State asserts that this Court’s prior mandamus opinion—in which we rejected

Fuelberg’s disqualification and recusal issues—is the law of the case. See In re Fuelberg, 2010 Tex.

App. LEXIS 1256, at *2–4; see also Texas Parks & Wildlife Dep’t v. Dearing, 240 S.W.3d 330, 338

(Tex. App.—Austin 2007, pet. denied) (explaining law-of-the-case doctrine). “Under the law-of-

the-case doctrine, a court of appeals is ordinarily bound by its initial decision on a question of law

if there is a subsequent appeal in the same case.” Dearing, 240 S.W.3d at 348. If a prior legal

conclusion is the law of the case, that conclusion will not be disturbed unless it was “clearly

erroneous.” Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716 (Tex. 2003).

                                                  5
               The law-of-the-case doctrine is prudential rather than statutory, and the decision

to revisit a previous holding is generally left to the discretion of the court under the particular

circumstances of a given case. City of Houston v. Jackson, 192 S.W.3d 764, 769 (Tex. 2006).

When a court denies mandamus without any comment on the merits, the mandamus is not the law

of the case. Perry Homes v. Cull, 258 S.W.3d 580, 586 (Tex. 2008). Some courts have held that

the law-of-the-case doctrine may apply when the court’s denial of mandamus addresses the merits.

See, e.g., In re B.G.D., 351 S.W.3d 131, 141 (Tex. App.—Fort Worth 2011, no pet.). This Court has

never extended the doctrine to a mandamus ruling. Without foreclosing the possibility of our doing

so in the future, for purposes of this appeal we will not treat our previous denial of mandamus as

law of the case, and we will address the disqualification issue de novo.


Pecuniary interest

               Fuelberg asserts that Judge Mills was disqualified from this case, in part, because

he had a pecuniary interest in the subject-matter in controversy. See Tex. R. Civ. P. 18b(a)(2).

Specifically, Fuelberg claims that as a PEC Member, Judge Mills stood to potentially gain from

any restitution he ordered. This issue was the primary focus of Fuelberg’s disqualification motion,

Judge Richardson’s findings of fact and conclusions of law, and our opinion denying mandamus.

See In re Fuelberg, 2010 Tex. App. LEXIS 1256, at *2–4. Furthermore, it presents an issue of first

impression in this Court: Does a judge’s participation in a member-owned utility cooperative

disqualify him from hearing cases that might affect the cooperative financially? Under the facts of

this case, we answer no.




                                                 6
                “It is a settled principle of law that the interest which disqualifies a judge is that

interest, however small, which rests upon a direct pecuniary or personal interest in the result of the

case.” Cameron v. Greenhill, 582 S.W.2d 775, 776 (Tex. 1979). Thus, if a judge has a direct

financial interest in the outcome of the case, such as stock ownership in a company who is a party

to litigation, the judge is disqualified. See Williams v. City Nat’l Bank of Quanah, 27 S.W. 147, 148

(Tex. Civ. App.—Fort Worth 1894, no writ) (concluding that ten shares in bank that was party to

suit disqualified trial judge).

                However, a judge’s interest which is “merely indirect, incidental, remote, contingent,

or possible” or based on his status as “a resident or taxpayer” in which he “will be no more affected

by any decision which may be made in the case than every other citizen of the county who is a

taxpayer” is not disqualifying. Elliot v. Scott, 25 S.W.2d 150, 152 (Tex. 1930). For this reason, a

judge is not disqualified from hearing a case that may affect a public utility or regulated utility of

which he is a customer. See Tex. R. Civ. P. 18b(d)(4)(E) (“[A]n interest as a taxpayer or utility

ratepayer, or any similar interest, is not a ‘financial interest’ unless the outcome of the proceeding

could substantially affect the liability of the judge . . . more than other judges.”) (emphasis added);

Hidalgo Cnty. Water Imp. Dist. No. 2 v. Blalock, 301 S.W.2d 593, 596 (Tex. 1957); City of Houston

v. Houston Lighting & Power Co., 530 S.W.2d 866, 868 (Tex. Civ. App.—Houston [14th Dist.]

1975, writ ref’d n.r.e.). Thus, it is the nature of the judge’s financial interest, rather than its potential

value, that determines whether the interest is disqualifying.3


        3
          To the extent our prior mandamus opinion could be read to conclude that Judge Mills’s
financial interest was not disqualifying because it was de minimis, that conclusion would be
incorrect. See In re Fuelberg, No. 03-10-00027-CV, 2010 Tex. App. LEXIS 1256, at *2–4 (Tex.
App.—Austin Feb. 19, 2010, orig. proceeding [leave denied]) (mem. op.).

                                                     7
               By statute, an electric cooperative like the PEC “shall operate without profit to its

members.” See Tex. Util. Code § 161.059(a) (emphasis added). The “rates, fees, rents, and other

charges” for a co-op’s services must be used to first pay for prudent business expenses, including

the repayment of loans, and then to create reserves. Id. § 161.059(b)–(c). A utility cooperative

“must periodically return revenues not required for those purposes to its members in proportion to

that amount of business done with each member”—in the form of a cash payment, abatement of

charges, or a general rate reduction—effectively reimbursing members for charges that they should

not have paid. See id. § 161.059(d) (emphasis added).

               This statutory framework is consistent with the testimony of the PEC’s Chief Financial

Officer, Michael Vollmer, at the disqualification and recusal hearing concerning how the PEC

calculates reimbursements to its members. Vollmer explained that excess funds, which he called

“margins,” are calculated annually and then allocated to each member’s “capital credit account”

based on the “relative amount of electricity that [the member] purchased during the previous

year.” From there, the PEC board of directors can “distribute” portions of each member’s capital

credit account to the member. Vollmer emphasized that margins should not be called profits and

distributions should not be called dividends, indicating that they are distinguishable, at least from

an accounting standpoint.

               At the time of the recusal hearing, Judge Mills had approximately $1,200 in his PEC

capital credit account. Judge Mills did not receive a distribution from this account until 2007—27

years after he first became a PEC member—and that distribution was for approximately $18.

Vollmer’s testimony indicated that the PEC would be making more distributions in the near future.



                                                 8
Furthermore, Vollmer testified that any restitution that was ordered in this case could increase the

PEC’s margin, thereby increasing the amount allocated to each member’s capital credit account for

that year, which in turn could lead to a larger distribution in the future.

               Fuelberg asserts that the potential distribution that Judge Mills could receive

from ordering restitution is a direct, disqualifying pecuniary interest. Fuelberg relies primarily on

Pahl v. Whitt, 304 S.W.2d 250, 252 (Tex. Civ. App.—El Paso 1957, no writ), which appears to

be the only Texas case that directly addresses whether a judge’s membership in a utility cooperative

is disqualifying. The court in Pahl concluded that the interest was disqualifying because “if a

Cooperative makes money, its members may receive dividends in the form of money or lowered

rates for electricity, thus such members are in very much the same situation as stockholders in a

corporation.” Id. To the extent Pahl can be read to mean that distributions by all utility cooperatives

are like dividends from a private corporation, we respectfully disagree. See 304 S.W.2d at 252.

Each case must be reviewed on its own facts with regard to the character of the cooperative’s

distributions to its members.

               Given the statutory framework and real-world application at PEC, as outlined above,

the PEC’s distributions to its members—whether in the form of cash distributions or reductions in

future rates—function as a refund to members for previous overcharges. PEC members’ capital

credit accounts operate as an accounting tool to keep track of these overcharges and in no way equate

to an ownership interest in the PEC. Therefore, the distributions from the capital credit accounts are

more akin to a tax rebate or rate reduction than a dividend paid based on a company’s profits. This

interpretation is consistent with section 161.059(a) of the Utility Code, which specifically requires



                                                   9
that an electric cooperative must operate “without profit to its members.” Given that Judge Mills

automatically became a member of the PEC when he purchased his home and electrical service, his

interest in obtaining lower electricity rates from the PEC in these ways is indistinguishable from

that of a judge who is a customer of a public or regulated utility.4 See Tex. R. Civ. P. 18b(d)(4)(E);

Hidalgo Cnty., 301 S.W.2d at 596; City of Houston, 530 S.W.2d at 868.

                The record indicates that Judge Mills has no other financial interest in the PEC.

Although PEC members are technically owners, their ownership is nontransferable—even to

subsequent property owners—and terminates upon their withdrawal or death. Vollmer testified that

if the PEC dissolved, members could be entitled to the amounts in their capital credit accounts,

but there is no indication that they would be entitled to any other distribution. Therefore, the only

financial interest that Judge Mills has in the PEC is in the rates that he pays, or should have paid, for

utility service, which is indistinguishable from the interest of a public utility customer. See Tex. R.

Civ. P. 18b(d)(4)(E).

                Finally, as the State correctly notes, this is a criminal proceeding, and neither the PEC

nor its members are actually parties to this case. Therefore, Judge Mills’s potential financial interest


        4
          Fuelberg also asserts that Judge Mills’s interest in the PEC is equivalent to that of a
policyholder of a mutual insurance company, which has been held to be disqualifying. See Sovereign
Camp v. Hale, 120 S.W.539, 540 (Tex. 1909); New York Life Ins. Co. v. Sides, 46 Tex. Civ. App.
246, 247 (Tex. 1907). However, the judges in Hale and Sides had a pecuniary interest in those cases
not because they technically owned a portion of the insurance company, but because any financial
harm to the insurance company would have endangered the pay-outs of their individual life insurance
policies. See Sovereign Camp, 120 S.W. at 540; New York Life Ins. Co., 46 Tex. Civ. App. at 247;
see also Tex. R. Civ. P. 18b(d)(4)(C) (“[T]he proprietary interest of a policyholder in a mutual
insurance company . . . is a ‘financial interest’ in the organization only if the outcome of the
proceeding could substantially affect the value of the interest.”). Thus, the judges’ pecuniary interest
in the mutual insurance cases are distinguishable from Judge Mills’s interest in this case because
Judge Mills does not have a distinct future payout that could be endangered by his decision.

                                                   10
is even more attenuated than it would be in a civil case because he stood to gain only if Fuelberg was

convicted; Judge Mills, in his discretion, ordered Fuelberg to pay restitution; the PEC increased

the allocations to its members’ capital credit accounts based on that restitution; and then the PEC

Board, in its discretion, approved a distribution to its members from the increase in their capital

credit accounts. We have not found any Texas cases that address whether a trial judge’s potential

benefit from criminal restitution can be disqualifying, and the federal cases on the issue are split.5

See United States v. Rogers, 119 F.3d 1377, 1383 (9th Cir. 1997) (noting circuit split).

               Furthermore, those federal courts which have found that this type of interest can be

disqualifying noted that only a judge with a “substantial interest” in the corporate victim of the crime

should disqualify himself. See United States v. Nobel, 696 F.2d 231, 234–35 (3d Cir. 1982). The

court in Nobel explained that a judge who owned stock in the “corporate victim of the crimes does

not have a ‘financial interest in the subject matter in controversy,’” but for sake of appearance may

nonetheless be required to be disqualified. See id. Given that the Texas rules governing financial

interests do not require disqualification for the sake of appearances, the federal court’s reasoning in

Nobel appears to be more in line with Texas’s recusal standards, and thus has little if any

applicability to disqualification under Texas law. See supra n.5. In addition, although the court in

Nobel did not define what “substantial interest” means, there is nothing in the record that could




       5
          The federal rule for disqualification “includes disqualification for the appearance of
impropriety,” which is addressed in the Texas rules for recusal. In re Wilhite, 298 S.W.3d 754,
760–61 (Tex. App.—Houston [1st Dist.] 2009, orig. proceeding [mand. denied]). “Because federal
cases discussing recusal and disqualification often use the terms interchangeably, those cases are of
limited guidance in interpreting Texas’s rule for disqualification that does not include the appearance
of impropriety as a basis for disqualification.” Id.

                                                  11
arguably support a claim that Judge Mills has a substantial financial interest in either the PEC or the

outcome of this case. See 696 F.2d at 234–35 (concluding that judge’s impartiality might reasonably

be questioned when he owned between $10,000 and $15,000 in victim’s corporate stock).

                Therefore, we conclude that Judge Mills did not have a disqualifying pecuniary

interest in the subject matter of this case. Judge Richardson did not err in denying Fuelberg’s motion

to disqualify Judge Mills on this basis. We overrule Fuelberg’s first appellate issue with respect to

Judge Mills’s pecuniary interest in this case.


Injured Party

                Fuelberg also asserts that Judge Mills was disqualified from this case as a putative

victim of the offenses alleged. Specifically, Fuelberg claims that as a PEC member, Judge Mills was

a “party injured” within the meaning of article 30.01 of the Code of Criminal Procedure. Therefore,

according to Fuelberg, Judge Mills has a disqualifying personal interest in the subject matter at issue.

                Article 30.01 states that “[n]o judge or justice of the peace shall sit in any case where

he may be the party injured . . . .” The statute does not define who qualifies as “the injured party”

in a criminal case, although it would presumably always include the victim named in the indictment.

See Ex parte Ambrose, 24 S.W. 291, 291–92 (Tex. Crim. App. 1893) (concluding that county judge

was disqualified from presiding over trial for assault where he was victim of alleged assault); but see

Lane v. State, 634 S.W.2d 65, 66 (Tex. App.—Fort Worth 1982, no pet.) (concluding that “judge

presiding at a trial in which perjury is committed does not thereby become an ‘injured party’” in

subsequent perjury trial). In this case, however, the PEC—not the PEC members generally nor Judge

Mills specifically—is the victim named in the indictment.

                                                   12
               Whether the judge was named as the victim in the indictment, however, does not

necessarily end the inquiry. The court of criminal appeals recently addressed a similar case in which

the trial judge was not named in the indictment but was nonetheless involved in the underlying

offense. See Whitehead v. State, 273 S.W.3d 285, 286 (Tex. Crim. App. 2008). In that case, the

judge was one of the people threatened in a letter written by the defendant that formed the basis for

the State’s motion to revoke the defendant’s community supervision. Id. The court of criminal

appeals rejected the intermediate court’s conclusion that the judge was not an injured party merely

because he was not named in the indictment, and held that he “may be the party injured, . . . if the

evidence shows that he was among the defendant’s victims in the criminal transaction or episode at

issue, such that a reasonable person would harbor doubts as to the judge’s impartiality.”6 Id. at 289

(internal quotations omitted). The court further held that a reasonable person would harbor doubts

about the judge’s impartiality in that case, and therefore the judge was disqualified. See id.

               Given that Judge Mills is not the victim named in the indictment, he is an injured

party, if at all, because he was a victim in the criminal transaction or episode at issue such that a

reasonable person would doubt his impartiality. See id. Judge Richardson did not make findings




       6
          The defendant in Whitehead v. State did not file a motion to recuse the trial judge, and
thus the court of criminal appeals considered only whether the trial judge was disqualified. See
273 S.W.3d 285, 289 (Tex. Crim. App. 2008). Given that the rationale and standard established in
Whitehead are identical to the rationale and standard for recusal under rule 18b(b)(1) of the Rules
of Civil Procedure, it is possible that the interest addressed in Whitehead could more aptly be
resolved under recusal law. See id. (“We have no doubt that [the trial judge’s] integrity is of the
highest and that he would have recused himself had a motion for recusal been filed.”). Nevertheless,
the court determined that the interest was disqualifying under article 30.01 of the Code of Criminal
Procedure, and we are bound to conform our opinions to those of the court of criminal appeals. See
State v. DeLay, 208 S.W.3d 603, 607 (Tex. App.—Austin 2006).

                                                 13
of fact or conclusions of law as to whether Judge Mills was an injured party within the meaning of

article 30.01 or whether a reasonable person would doubt his impartiality.

               As we will discuss below, we are abating this appeal and remanding this cause for

a new hearing on the issue of whether Judge Mills should have been recused under rule 18b(b)(1)

of the Rules of Civil Procedure. The objective reasonable-person standard for disqualification

established in Whitehead is identical to the objective reasonable-person standard for recusal under

rule 18b(b)(1). Compare Whitehead, 273 S.W.3d at 286, with Ex parte Ellis, 275 S.W.3d 109,

115–17 (Tex. App.—Austin 2008, no pet.) (describing objective reasonable-person standard for

recusal under rule 18b(b)(1)). Therefore, we will also abate this appeal and remand this cause with

instructions to determine whether Judge Mills is disqualified as an injured party under Whitehead.

See 273 S.W.3d at 286; see also Gamez v. State, 644 S.W.2d 879, 880–81 (Tex. App.—San Antonio

1982, pet. ref’d) (abating case and remanding for factual determination of whether trial judge was

disqualified under article 30.01).


Recusal

               In his second issue on appeal, Fuelberg asserts that Judge Richardson erred in denying

his motion to recuse Judge Mills. Specifically, Fuelberg argues that Judge Mills should have been

recused because, given his financial interest in the PEC and his status as a victim of the offenses

alleged, his “impartiality might reasonably be questioned.”7 See Tex. R. Civ. P. 18b(b)(1). Although


       7
          Fuelberg also asserts that Judge Mills should have been recused because he had “a financial
interest in the subject matter in controversy.” See Tex. R. Civ. P. 18b(b)(6). However, Fuelberg did
not raise this argument in his amended motion to recuse Judge Mills, nor did he assert it as a separate
ground for recusal at the hearing before Judge Richardson. Therefore, Fuelberg has not preserved
this issue for appeal. See Blackwell v. Humble, 241 S.W.3d 707, 713 (Tex. App.—Austin 2007,

                                                  14
these complaints mirror the arguments for disqualification discussed above, recusal is concerned not

only with actual personal or pecuniary interests, but also the appearance of impartiality when all

factors are reviewed as a whole. See id.; Rogers v. Bradley, 909 S.W.2d 872, 873 (Tex. 1995)

(“Declaration of Recusal” by Gammage, J.) (noting that issue is one of perception). “[B]eyond the

demand that a judge be impartial is the requirement that judge appear to be impartial so that no

doubts or suspicions exist as to the fairness or integrity of the court.” Sears v. Olivarez, 28 S.W.3d

611, 613–14 (Tex. App.—Corpus Christi 2000, no pet.). Thus, according to Fuelberg, even if Judge

Mills’s alleged interests in this case do not rise to the level of constitutional disqualification, those

interests nevertheless cause his impartiality to be reasonably questioned.

                In determining whether recusal is required, “the proper inquiry is whether a

reasonable member of the public at large, knowing all the facts in the public domain concerning the

judge and the case, would have a reasonable doubt that the judge is actually impartial.” Ex parte

Ellis, 275 S.W.3d at 115–17 (internal quotations omitted). Thus, unlike the subjective issue of

whether Judge Mills has a personal or pecuniary interest in this case, recusal is determined from an

objective standard, and asks whether a reasonable person would doubt that Judge Mills could remain

impartial. Id. As discussed above, we will not treat our previous mandamus opinion as law of the

case with respect to recusal. Therefore, we review Judge Richardson’s ruling on Fuelberg’s recusal

motion for an abuse of discretion. Wesbrook v. State, 29 S.W.3d 103, 120 (Tex. Crim. App. 2000).

                Judge Richardson issued an order denying Fuelberg’s disqualification and recusal

motions, in which he adopted the findings of fact and conclusions of law he previously announced



no pet.) (noting that party who fails to timely raise grounds for recusal waives right to complain
about judge’s failure to recuse).

                                                   15
during the disqualification and recusal hearing. At the hearing, Judge Richardson mostly focused

on the motion to disqualify and made only the following findings of fact and conclusions of law with

respect to recusal:


                The recusal issue is something completely different. They argue the
                recusal issue under the Code of Judicial Conduct and that Judge Mills
                could not be fair and impartial. And the only thing I have to rely on
                at this point is as to Cannon [sic] Four, which states the following:
                “A judge shall conduct all of the judge’s extra-judicial activities so
                that they do not cast reasonable doubt on the judge’s capacity to act
                impartially as a judge or interfere with the proper performance of
                judicial duty.” I haven’t found any cases directly on point that deal
                with this issue, although the defense relies on Whitt,8 and I’ll comment
                on that in just a minute.

                         Specifically, Judge Mills stated in court during the first
                hearing when the motion to recuse and disqualify was first brought to
                his attention that he could be fair and impartial, that he had no
                recollection of ever having received any kind of check from PEC, and
                didn’t feel like he needed to step aside. And so the Court is relying
                on that representation to resolve the recusal issue, and that is that he
                can be. The defense chose not to call him, so that is the only thing
                that is reflected in the record as to whether or not he could be fair and
                impartial so I’ll rely on his representation that he can be.


                Judge Richardson also issued a supplemental order, in which wrote that “neither side

chose to call Judge Mills as a witness. Therefore, the Court will rely upon the Judge’s representations

in the record vis-a-vis his ability to be fair and impartial.” Judge Richardson noted that Judge Mills

had received only one distribution for $18, and concluded “[t]hat amount hardly seems sufficient to


       8
          The “Whitt” case Judge Richardson is referring to is Pahl v. Whitt, 304 S.W.2d 250, 252
(Tex. Civ. App.—El Paso 1957, no writ), the case discussed above concerning disqualification based
on membership in an electric cooperative. Judge Richardson did not discuss Whitt in terms of
recusal, and it appears that his brief reference to it during his discussion of recusal is not relevant.

                                                   16
create a bias that rises to the level of recusal or disqualification—especially in light of his statements

to the contrary in the first hearing on the matter.” These are Judge Richardson’s only findings or

comments with respect to Fuelberg’s recusal motion.

                At no point in his oral pronouncement, his original order, or his supplemental order

did Judge Richardson reference the objective reasonable-person standard that applies to recusal.

Judge Richardson’s findings of fact and conclusions of law indicate that he applied a subjective

standard to determine whether Judge Mills was in fact impartial, relying solely on Judge Mills’s own

subjective state of mind and beliefs concerning whether he could be fair and impartial. Instead,

Judge Richardson should have determined whether a reasonable person would doubt Judge Mills’s

impartiality. Therefore, we conclude that Judge Richardson abused his discretion by applying the

incorrect legal standard to Fuelberg’s motion to recuse. See State v. Herndon, 215 S.W.3d 901, 907

(Tex. Crim. App. 2007) (noting that trial court abuses discretion when misapplies the law).

                Based upon this conclusion, we now must decide the appropriate remedy. One of

our sister court of appeals recently addressed a similar case in which a recusal court abused its

discretion by “misapplying or misinterpreting recusal law.” See Kniatt v. State, 239 S.W.3d 910,

919–920 (Tex. App.—Waco 2007, no pet.) (op. on reh’g). In that case, the appellate court noted that

it had “not determined that the assigned judge abused his discretion in denying [the defendant’s]

recusal motion under a correct application of recusal law.” Id. at 920. Therefore, the appellate court

concluded that it should abate the appeal and remand the case for a new recusal hearing so that the

court below could apply the correct recusal standard. Id. at 922 (citing several cases from other

courts of appeals abating appeal for new recusal hearing). The court took this action even though

the trial court had already rendered a judgment of conviction.

                                                   17
               We have determined that this procedural approach is appropriate in this case. The

record does not clearly establish as a matter of law that Judge Mills should or should not have been

recused. Furthermore, Judge Richardson has not considered or determined whether a reasonable

person would doubt Judge Mills’s impartiality. Therefore, we will abate this appeal and remand the

case for a new recusal hearing with instructions to apply the correct reasonable-person standard.

Because we are abating this appeal and remanding this case for a new recusal hearing, we need not

reach Fuelberg’s remaining issues at this time. See Tex. R. App. P. 47.1 (requiring appellate courts

to hand down opinions that are as brief as possible while addressing those issues necessary to final

disposition of appeal).


                                         CONCLUSION

               We overrule Fuelberg’s complaint that Judge Mills was disqualified based on his

alleged pecuniary interest in the subject-matter of this case. We abate this appeal and remand this

cause for a new hearing, with instructions to address whether, under an objective reasonable-person

standard, Judge Mills (1) was disqualified as an interested party, see Whitehead, 273 S.W.3d at 286,

or (2) should have been recused because his impartiality might reasonably be questioned, see Tex.

R. Civ. P. 18b(b)(1).

               The district court shall submit to this Court its findings and conclusions, along with

a transcription of the hearing, in a supplemental clerk’s record and reporter’s record on or before

October 28, 2013. At that time, we may request supplemental briefing from the parties as necessary.




                                                18
                                            __________________________________________

                                            Scott K. Field, Justice

Before Chief Justice Jones, Justices Pemberton and Field

Abated

Filed: August 27, 2013

Publish




                                              19
