
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



ON MOTION FOR RECUSAL



NO. 03-05-00585-CR
NO. 03-05-00586-CR


Ex parte James W. Ellis




NO. 03-05-00589-CR
NO. 03-05-00590-CR
NO. 03-05-00591-CR
NO. 03-05-00592-CR
NO. 03-05-00593-CR
NO. 03-05-00594-CR
NO. 03-05-00595-CR
NO. 03-05-00596-CR
NO. 03-05-00597-CR
NO. 03-05-00598-CR
NO. 03-05-00599-CR
NO. 03-05-00600-CR
NO. 03-05-00601-CR
NO. 03-05-00602-CR
NO. 03-05-00603-CR


Ex parte John Dominick Colyandro





FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
NOS. 9040564, 9040565, 9040566, 9040567, 9040568, 9040569, 9040570, 9050571, 9040572, 9040573,
9040574, 9040575, 9040576, 9040577, 9040598, 
D-1-DC-2005-904121, & D-1-DC-2005-904122
HONORABLE BOB PERKINS, JUDGE PRESIDING


STATEMENT ON TEXAS RULE OF APPELLATE 

PROCEDURE 16.3(b) CERTIFICATION

		In late 2005, I was assigned to hear the appeals of the trial court's rulings on pretrial
applications for writs of habeas corpus filed in these cases.  Upon notice of the assignment,
I followed my standard practice in evaluating whether disqualification was required or recusal was
appropriate.  There was no basis for disqualification and recusal was not appropriate.  While judges
have an obligation to recuse themselves where recusal is appropriate, there is a corresponding
obligation for judges not to recuse themselves where recusal is not warranted.  Kirby v. Chapman,
917 S.W.2d 902, 909 (Tex. App.--Fort Worth 1996, no writ) (quoting Rogers v. Bradley,
909 S.W.2d 872, 879 (Tex. 1995) (Enoch, J., quoting United States v. Burger, 964 F.2d 1065, 1070
(10th Cir. 1992))).  On September 23, 2008, after the panel opinion in these cases had been issued,
the district attorney filed a motion to recuse me from en banc reconsideration and consideration of
his motion for rehearing.  I considered the district attorney's motion as required by Texas Rule of
Appellate Procedure 16.3 and on September 25, 2008, I declined to remove myself from the pending
proceedings, informed the remainder of the court of my decision, and certified the matter to the
entire court.  My decision not to recuse myself when originally assigned, as well as my decision not
to recuse myself at this point in the proceedings, are based on the following.


I did not and do not have a bias for or against any party in these cases or in other cases that
might be affected by these cases.  I did not and do not have a personal bias or prejudice as
to the subject matter of these criminal habeas corpus proceedings.  If I had a personal bias
or prejudice in these cases or was not impartial, I would have recused myself promptly and
without hesitation as I have done in other matters.
 I have never represented, counseled, met with, or had any contact with either of the
Appellants, Mr. Ellis or Mr. Colyandro.
 Although he is not a party to these cases, Tom DeLay appears to be the focal point of interest
because of the possibility that the rulings in these cases might impact his criminal
proceedings.  Thus, it is relevant to note that I have never represented, counseled, met with,
or had any contact with Mr. DeLay.
 I had not formed any opinion regarding the issues presented in these criminal pretrial habeas
corpus proceedings--(1) the facial constitutionality of the particular election code provisions
in question, and (2) the proper interpretation to be given the pre-2005 money laundering
statute including the legal question of whether the court should reach the interpretation issue
in the context of a pretrial habeas corpus proceeding--before being assigned to the cases. 
I had not researched these issues, nor were they part of any work I did in private practice.
 I did not and do not have any personal knowledge of any disputed evidentiary facts in these
criminal habeas corpus proceedings.  As a legal matter, there are no disputed evidentiary
facts in these types of pretrial proceedings.  Nonetheless, I do not have any personal
knowledge of any of the facts alleged in the criminal indictments at issue in these cases,
whether they are ultimately disputed or not.
 In 2004, I represented Texans For Lawsuit Reform ("TLR") in its efforts to resist a third-party document request from the plaintiffs in the civil lawsuit Clayton, et al. v. Texans For
a Republican Majority, et al.  TLR was not a party to that civil suit and was not involved in
it other than receiving and successfully resisting a third-party document request.  The
plaintiffs' underlying claims against the named defendants were not made against TLR and
were not at issue in the work I did in objecting to the document request.  Mr. Ellis and
Mr. Colyandro were not parties to the third-party document request dispute.  As retained
litigation counsel for TLR, I represented TLR in successfully resisting a third-party document
request.  I did not represent any party with respect to either of the legal questions before me
in these criminal habeas corpus proceedings.  The parties and the legal and factual issues
involved in the third-party document request dispute were different from those in these cases.
 As retained litigation counsel for TLR with respect to the third-party document request in the
Clayton civil suit, I pointed out to the court that the document request served on TLR was
served by lawyers who, in addition to representing the plaintiffs in the civil suit, also
represented Texans For Public Justice ("TPJ"), a political opponent of TLR.  It was TLR's
view--a view that I communicated to the court as TLR's lawyer--that the lawyers for the
plaintiffs were attempting to use the discovery process in the civil suit to inappropriately
advance TPJ's ongoing political battle with TLR.  The primary point of TLR's pleadings was
to illustrate that the underlying claims made by the Clayton plaintiffs against the
Clayton defendants, whether meritorious or not, had nothing to do with TLR.  The fact that
TLR viewed the Clayton civil suit as "politically motivated" is neither surprising nor a
comment on the merits of the claims in the Clayton suit.  It certainly does not demonstrate
or evidence a personal bias or lack of impartiality on my part with respect to the unrelated
legal issues in these criminal habeas corpus proceedings.
 The State was not a party to the civil suit.  The State's money laundering charges against
Mr. Ellis and Mr. Colyandro, being criminal charges, were not at issue in the civil suit.  The
legal questions that I considered in these criminal proceedings--having to do with whether
the State's prosecution may be attacked by way of a pretrial writ of habeas corpus--were not
at issue in the third-party document request dispute in which I participated as counsel
for TLR.
 The district attorney's office was either aware or should have been aware of my
representation of TLR with respect to the third-party document request in the civil suit both
when I was assigned to these criminal cases and during the time they have been pending.  My
work on behalf of TLR relating to the third-party document request in the civil suit was a
matter of public record, known to all of the parties and their lawyers in the case, and widely
reported in 2006 when I was assigned to these criminal cases as well as a separate criminal
case involving criminal conspiracy charges against Tom DeLay.  The district attorney's
office did not indicate to anyone at the time I was assigned to these cases that I should
consider recusal or that they would seek to recuse me.  The district attorney's office, in fact,
did not seek to recuse me either in these cases or in the prior case involving criminal
conspiracy charges.  I served in the criminal conspiracy case through its finality at the Court
of Criminal Appeals, without the district attorney making a comment or objection.  I served
in these habeas corpus cases until the panel opinion was published, without the district
attorney making a comment or objection.  It is significant to note that the district attorney,
in his recusal motion, has not claimed that he was unaware of my representation of TLR in
the Clayton third-party document dispute.  He has only alleged that he was not aware of what
was written in the publicly-filed pleadings until immediately after our court's decision in
these cases.  This is a distinction without legal significance from the standpoint of promptly
and properly looking into and raising a recusal issue.


		The distinction between the legal issues and parties involved in these criminal habeas
corpus proceedings and the third-party document request dispute is an important distinction.  The
district attorney asserts that the civil lawsuit originated from the "same matter in controversy" as
these criminal proceedings, and suggests that this somehow affects whether I should consider the
motions for rehearing in these cases.  This allegation is wrong, but more importantly, it is irrelevant
to whether I should recuse myself.  I was not a lawyer representing any party to the civil suit. 
I represented a nonparty in resisting a third-party document request.  The parties to the third-party
document request dispute are not the same as the parties to these cases, and the legal issues involved
are not the same.  These criminal habeas corpus proceedings involve two entirely different legal
issues that were not involved in the third-party document request dispute. 
		The parties to the third-party document request dispute in the Clayton civil suit--the
plaintiffs and TLR--are not parties to these criminal habeas corpus cases.  I have not represented,
counseled, advised, or met with any parties to the criminal habeas corpus proceedings.  The legal and
factual issues I dealt with as retained counsel for TLR in connection with the third-party document
request dispute are not the same as or related to the constitutional and habeas corpus issues
I addressed as a judge in the these cases.  Neither my limited and brief involvement in resisting the
third-party document request in the Clayton civil suit nor anything else has caused me to form a bias
or prejudice regarding the parties or subject matter in these criminal habeas corpus cases.  I do not
believe that a reasonable person in possession of all of the facts would reasonably question my
impartiality.  Justice Brian Quinn of the Amarillo Court of Appeals has eloquently stated the
movant's obligations when seeking to recuse a qualified judge:

	First, it is beyond gainsay that jurists have a duty to entertain and resolve pending
causes unless disqualified or legitimately recused.  Thus, one assessing the ability of
a jurist to perform his duties viz-a-viz a particular matter must begin with the premise
that he is qualified and entitled to sit until proven otherwise.  More importantly, to
prevent the jurist from sitting takes more than mere innuendo and conclusory
allegations.  Rather, those endeavoring to remove him must tender proof establishing
the purported disqualification or basis for recusal.  Simply put, they must prove,
through admissible evidence, that the judge cannot sit.


Williams v. Viswanathan, 65 S.W.3d 685, 690 (Tex. App.--Amarillo 2001, no pet.)
(citations omitted).
		The district attorney has not and cannot satisfy this burden.  Nor has he filed his
motion to recuse in a timely manner.  Consequently, I do not believe there was or is a basis to recuse
myself from these cases.  

  
						G. Alan Waldrop, Justice
Filed:   December 31, 2008
Publish
