


 
IN THE
TENTH COURT OF APPEALS
 










 
 

No. 10-10-00459-CR
 
In
re Hubert Warren
 
 

Original Proceeding
 
 

ORDER

 
            Hubert Warren filed a
petition for writ of mandamus against former District Judge Gene Knize.  This
Court denied the petition on January 12, 2011.  Warren filed a motion for
disqualification.[1]
            Warren seeks to disqualify
Chief Justice Tom Gray, Justice Rex Davis, and Justice Bill Vance.[2] 
The motion for disqualification is primarily based upon constitutional
grounds.  Constitutional disqualification may be raised at any stage of the
proceeding and cannot be waived.  Spigener v. Wallis, 80 S.W. 3d 174, 180
(Tex. App.—Waco, no pet.).
            Chief Justice Gray and
Justice Davis are not disqualified under article V, section 11 of the Texas
Constitution, i.e., they do not have an interest in the subject matter
of the controversy, they are not related to a party by affinity or
consanguinity within the third degree, and they have not been counsel in the
case.  Tex. Const. art. V § 11; Tex. R. App. P. 16.1; Tex. R. Civ. P. 18(b) 1; see
McCullough v. Kitzman, 50 S.W.3d 87, 88 (Tex.App.—Waco 2001, pet. den’d). 
The motion for disqualification is denied with respect to Chief Justice Gray
and Justice Davis.
 
                                                                                    
AL SCOGGINS
                                                                                    Justice
 
Before
Justice Scoggins, 
(Chief Justice Gray and Justice Davis not
participating)
Motion
denied
Order
issued and filed March 16, 2011
Do
not publish 
 




 




[1] The motion for disqualification lacks
proof of service.  A copy of all documents presented to the Court must be
served on all parties to the proceeding and must contain proof of service.  Tex. R. App. P. 9.5. In order to
expedite disposition, Rule 9.5 is suspended for this case. Tex. R. App. P. 2.


 
[2] Justice Vance left the court in 2008. 
Therefore, the motion for disqualification of Justice Vance is dismissed as
moot.


