     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, 9040571, 9040572, 9040573,
  9040574, 9040575, 9040576, 9040577, 9040598, D-1-DC-2005-904121, & D-1-DC-2005-904122
                    HONORABLE BOB PERKINS, JUDGE PRESIDING
                               DISSENTING OPINION


               In light of the troubling procedural history of this case, including the dicta-laden

majority opinion that was issued on August 22, 2008, I join Justice Patterson’s dissent from

the decision to overrule the State’s motion to recuse1 and write separately to express certain

additional concerns.2

       1
            In the interest of judicial economy, the arguments and authorities presented by
Justice Patterson’s dissent need not be repeated here. Furthermore, I shall refrain from including a
blow-for-blow response to the majority’s attacks on my dissent, choosing instead to focus on those
issues I find pertinent to this recusal motion. That being said, I disagree with the majority’s
contention that the inherent problems in the opinion issued in the underlying appeal are irrelevant
to a determination of the recusal motion. Rather, it is my belief that the disturbing history of this
case cannot be ignored when considering whether a justice’s impartiality has been called into
question.
       2
           After only three justices—Ken Law, David Puryear, and Bob Pemberton—voted on
October 8, 2008, to overrule the state’s recusal motion, the court issued a notice to the parties, which
stated, “The State’s motion to recuse Justice Alan Waldrop was considered en banc and was
overruled by this Court on the date noted above.” This notice was misleading since the
State’s motion was not, in fact, considered en banc. Rather, it was considered by only four of the
five remaining justices who could properly participate. See Tex. R. App. P. 16.3(b) (motion to
recuse must be decided by “a majority of the remaining judges sitting en banc”). At the time the
motion was overruled, I had not yet voted. Rather, I had asked the participating justices for
additional time—no more than three days—to review the relevant legal authorities. In light of the
fact that no response to the motion had been requested from defense counsel by this Court, I felt that
additional research was required in order to properly consider the motion. However, rather than
affording me additional time to assess the legal issues or providing me with any authority they may
have considered in voting to overrule, the three-judge majority issued notice to the parties that the
motion had been overruled, purportedly after en banc consideration.

        While the majority claims that I refused to vote on the motion, stating only that I was
“booked up,” the email correspondence quoted by the majority is incomplete. In response to Justice
Puryear’s October 2nd email requesting a conference on the motion the next morning at 10:30, I
replied less than half an hour later with the following email:

       I am interviewing prospective law clerks tomorrow. I’m booked up for most of the
       day. Tomorrow at 10:30 will not work for me.

                                                   2
                The majority attempts to downplay the fact that the civil suit in question here is based

on the same essential facts as the instant criminal prosecution, stating that the attachments to the

State’s motion to recuse “show that neither Justice Waldrop nor his client had been served with all

of the various pleadings filed in the civil suit detailing the basis for the civil suit.” Regardless of

whether Justice Waldrop or TLR had been served with all of the various pleadings, it would not be

unreasonable to expect the basis for the civil suit to be clearly detailed in the plaintiffs’ seventh

amended petition. This petition can be found among the attachments to the State’s motion by virtue

of its inclusion as exhibit five to TLR’s “Response to Plaintiffs’ Motion to Compel,” a document

bearing Justice Waldrop’s signature. As a result, I disagree with the majority’s characterization of

Justice Waldrop and his client’s involvement in the civil suit, particularly the notion that they had




        If someone has actually researched any issues, it would be helpful to share the
        information with the rest of us.

No legal authorities on the issues raised in the motion were forthcoming. I have no record of a
subsequent email from Justice Puryear suggesting a new conference date or time.

        At the time the notice to the parties was issued, the Court was aware of Justice Patterson’s
intent to dissent from the decision to overrule. The notice was issued without the benefit of Justice
Patterson’s dissent and without any indication that a dissent was forthcoming. While the votes of
three justices constituted a majority of the Court in this case and therefore were sufficient to overrule
the motion, I find it troubling that the voting justices refused to deliberate or consult the full Court
before ruling on a motion that must be considered en banc. An appellate court should encourage,
rather than impede, the deliberative process, particularly regarding a motion of this magnitude. A
motion to recuse should be carefully and thoughtfully considered by the Court, in order to promote
public confidence in the judiciary. In this case, however, the voting justices, both in refusing to
request a response from defense counsel and in overruling the motion before I had the opportunity
to fully consider the legal issues involved, have discouraged any meaningful discussion of the
motion’s merits.

                                                   3
no knowledge of the basis for the suit and were concerned only with the possible political

motivations of discovery requests.3

               The seventh amended petition, which Justice Waldrop and his client, TLR, clearly

had at their disposal, describes the matter in controversy, in part, as follows:


       All defendants conspired to violate Section 254, Texas Election Code. Defendants
       conspired to conceal illegal corporate contributions by failing to report them to the
       Texas Ethics Commission.               Specifically, for example, on or about
       September 10, 2002, defendant Colyandro, at the direction of defendant Ellis and
       with the agreement of defendant Ceverha, caused a blank check to be sent overnight
       to defendant Ellis in Washington, D.C. The funds for the check were to be supplied
       from unreported corporate contributions received by TRMPAC [Texans for a
       Republican Majority Political Action Committee]. With the agreement of defendants
       Ceverha and Colyandro, defendant Ellis completed the check in the amount of
       $190,000 as political contributions to Republican candidates for the Texas
       Legislature . . . . The unlawful actions of the defendants included concealing the
       existence of the funds by . . . deliberately engaging in the unlawful act of channeling
       corporate contributions into Texas legislative races through the scheme of laundering
       the money through the Republican National Committee.


               A description of the matter in controversy in the instant criminal prosecution can be

found in the majority opinion authored by Justice Waldrop and issued by this Court on

August 22, 2008. The opinion states:


       Collectively, the indictments accuse Ellis and Colyandro of participating in a scheme
       to channel unlawful corporate political contributions to candidates for the
       Texas House of Representatives in 2002 in violation of the Texas Election Code. .
       . . The remaining indictments alleged that on or about September 13, 2002, Ellis and


       3
           I further disagree with the majority’s absurd contention that Justice Waldrop’s statement
that his client had “no information relevant to the allegations in this politically motivated lawsuit”
is a comment on the decision to serve discovery requests, rather than a comment on the merits of the
suit itself.

                                                  4
       Colyandro knowingly conducted and facilitated a transaction involving the proceeds
       of activity that violated section 253.094 of the election code, and that the value of the
       funds was $100,000 or more. The indictments state that six named corporations gave
       unlawful contributions totaling $155,000 to TRMPAC, that Ellis and Colyandro
       delivered these corporate contributions to the Republican National State Elections
       Committee in the form of a check for $190,000 drawn on a TRMPAC account and
       signed by Colyandro, and that the national committee then made contributions
       totaling $190,000 to a list of Texas house candidates suggested by Ellis.


(citations omitted). The opinion goes on to note that Ellis and Colyandro were later reindicted and

that the new indictments did not allege that the $190,000 transfer was made by check.

               A comparison of the plaintiff’s seventh amended petition in the civil case and the

facts of the instant criminal prosecution reveal that the civil suit involved the same matter in

controversy in the criminal prosecution—the alleged money laundering of $190,000 in corporate

contributions to Republican candidates for the Texas legislature, occurring in September 2002.

               As discussed in my dissenting opinion to the denial of en banc consideration,4 the

panel opinion in this case presented a number of troubling issues, including the panel’s insistence

on addressing issues not properly before the Court, an unexplained two-year delay in the disposition

of what was supposed to be an “accelerated” appeal, and a tortured application of the reasonable-

person standard.5 Such procedural and jurisprudential irregularities, when coupled with the written

       4
         See Ex parte Ellis, No. 03-05-00585-CR, 2008 Tex. App. LEXIS 7831 (Tex. App.—Austin
A u g. 2 9 , 2008, no pet. h.) ( He nson, J., disse nting) , av ailable a t
http://www.3rdcoa.courts.state.tx.us/opinions/HTMLopinion.asp?OpinionID=17252.
       5
          This same tortured analysis resurfaces in the majority’s opinion today, in the form of the
assertion that “no reasonable, disinterested member of the public . . . would have a reasonable doubt
as to Justice Waldrop’s impartiality,” despite the fact that two of the five justices deciding this
recusal motion are concerned that Justice Waldrop’s impartiality has been called into question.
Perhaps the majority is referring only to those reasonable, disinterested members of the public who
also believe that checks are not “funds.” See id. at *10-14.

                                                  5
statements described in the State’s motion to recuse, are sufficient to give a disinterested observer

cause to question whether the case was heard by an impartial tribunal. See Rogers v. Bradley,

909 S.W.2d 872, 882 (Tex. 1995) (Enoch, J., concurring) (motion to recuse should be evaluated from

disinterested observer’s point of view).6

                The recency of the statements at issue in the State’s motion is also a matter of some

concern. While the majority correctly observes that a candidate for a Texas court of appeals must

have at least ten years’ experience in the legal field, see Tex. Const. art. 5, §§ 2(b), 6, the remarks

at issue in the State’s motion to recuse were not made ten years, five years, or even one year before

Justice Waldrop took the bench. Rather, Justice Waldrop was initially appointed to this Court in

August 2005, less than a year after some of the statements described in the State’s motion were

made. The attachments to the motion reflect that as late as November 29, 2004, Justice Waldrop

filed a pleading in the civil action that referred to the plaintiffs’ case as a “politically motivated

lawsuit,” and suggested that the plaintiffs were attempting “to harass political opponents using the

tools designed for legitimate civil disputes.”

                “Wise observers have long understood that the appearance of justice is as important

as its reality.” J.E.B. v. Alabama, 511 U.S. 127, 161 n.3 (1994) (Scalia, J., dissenting). In the

present case, a justice of this Court, in the context of a recent civil case arising out of the same core

facts, indicated that he was predisposed to believe that the allegations were merely “politically

motivated.” Whether this is true or not, we are not to look solely to whether there was actual bias,


        6
         One might also question why, if Justice Waldrop’s lack of bias or partiality is so obvious,
a 38-page opinion, including personal attacks on the dissenting justices, was necessary to explain
why the motion to recuse was denied.

                                                   6
but also whether there was “a likelihood of bias or an appearance of bias.” Ungar v. Sarafite,

376 U.S. 575, 588 (1964). Granted, such a stringent rule may exclude “judges who have no actual

bias and who would do their very best to weigh the scales of justice equally between contending

parties. But to perform its high function in the best way ‘justice must satisfy the appearance of

justice.’” In re Murchison, 349 U.S. 133, 136 (1955) (quoting Offutt v. U.S., 348 U.S. 11, 14 (1954)).

Because I am not convinced that the appearance of justice was satisfied in this case, I

respectfully dissent.7



                                               __________________________________________

                                               Diane M. Henson, Justice

Before Chief Justice Law, Justices Patterson, Puryear, Pemberton and Henson

Filed: December 31, 2008

Publish




        7
          At the time the three-judge majority voted to overrule the recusal motion in October 2008,
Justice Waldrop had only provided the Court with a cursory email referring the recusal motion to the
court for a vote. The document entitled “Statement on Texas Rule of Appellate Procedure 16.3(b)
Certification,” recently authored by Justice Waldrop, was not in existence and was certainly not
considered by the majority when deciding the recusal motion. Thus, it is unknown why a
statement—that was never considered by the Court—is being released with the opinion.

                                                  7
