Wednesday August 31 came and went, with no word from the judge.
In fairness to Judge Bouressa, she hadn’t actually promised to issue her ruling on Wednesday. What she had said at the hearing the previous Thursday was “I would imagine I’ll have a ruling for the parties probably by the end of the day on Wednesday” and “I’ll have rulings to the parties toward the middle of next week.”
Well, she did mention “Wednesday,” but only in the context of imagining that Wednesday would probably be the date. Her definitive assessment was that she would issue the ruling toward the middle of the week.
Wednesday is the actual “middle of the week” – but giving her a day’s leeway in either direction, let’s say that Judge Bouressa had committed to issuing her ruling sometime between Tuesday and Thursday…
Thursday September 1 came and went, with no word from the judge.
Surely the judge would rule by Friday September 2, because she wouldn’t want to force me to wait through the three-day Memorial Day weekend to learn whether she had dismissed my case, would she?
Friday September 2 came and went, with no word from the judge.
But I guess she was working all through the holiday weekend, because at 2:28 PM on Tuesday September 6, the day after the long weekend, Judge Bouressa filed a document with the District Clerk of Collin County. Here’s what it said:
I have voluntarily recused myself and request that the Presiding Judge of the First Administrative Region assign a judge to hear the above case.
The Honorable Andrea K. Bouressa, Judge Presiding
“The Presiding Judge of the First Administrative Region,” BTW, was none other than Judge Ray Wheless – who, you may remember, had issued a summary judgment against me in my easement case just a couple of weeks earlier. Judge Wheless had not explained why he had ruled against me. And now Judge Bouressa was recusing herself without explaining why. Had I stumbled across some kind of pattern?
The Recusal Process
“Recusal” is when a judge resigns from a case because of a conflict of interest or to avoid the appearance of bias. Judges must recuse themselves if, for example, they have a financial interest in a case, or if they’re related to a party or an attorney in a case. But the broadest (and, to my mind, the most ambiguous) circumstance in which judges must recuse themselves (according to the Texas Rules of Civil Procedure) is if they find themselves “in proceedings in which their impartiality might reasonably be questioned.”
Well, I felt like I might reasonably question Judge Bouressa’s impartiality in this case because (1) her old law firm was a defendant, (2) a partner at her old firm was a defendant, (3) two partners at her old firm were the attorneys, and (4) a partner at her old firm was also an expert witness. But Texas courts have ruled that those exact circumstances were not reasonable grounds to question a judge’s impartiality, so Judge Bouressa did not have to recuse herself for any of those reasons.
Flipping that around: Texas courts have also ruled that judges must hear cases unless there is a valid reason for them to recuse themselves. Judges cannot recuse themselves, for example, simply because they don’t want to be in the difficult position of having to rule against friends and former associates. In one case, the Texas Supreme Court said: “There is as much obligation for a judge not to recuse when there is no occasion for him to do so as there is for him to do so when there is.” And the Texas Code of Judicial Conduct insists that “a judge shall hear and decide matters assigned to the judge except those in which disqualification is required or recusal is appropriate.”
(Having said all that: Even though there’s a rule that judges cannot recuse themselves just because they feel like it, it’s impossible to enforce that rule because judges don’t have to explain why they recuse themselves! If judges recuse themselves because, say, they think a case is too complicated [or too boring], that’s against the rules, because the rules require that they must hear that case whether they want to or not. But how would anybody know? They’re not going to say, “I recuse myself because this case is just too damned difficult”; they’re going to say, “I recuse myself,” and that’s that. Why bother to have a rule that says that judges can recuse themselves only under certain conditions and then make that rule totally unenforceable by allowing judges to recuse themselves without providing any reason whatsoever? The complete lack of transparency that surrounds the recusal process drives me nuts. Thank you for letting me vent.)
So, why did Judge Bouressa recuse herself? She probably didn’t have a financial interest in the case, and I doubt that Tommy was her cousin. And so, although I don’t know this for a fact, I’m guessing that she had found herself in a position where her “impartiality might reasonably be questioned.”
Note that this doesn’t mean that she felt that she couldn’t be impartial! She may have believed that she was so professional and had so much integrity that she could rule for or against her former colleagues with no bias whatsoever. But, according to the Texas Rules of Civil Procedure, if she believed that other people could reasonably question her impartiality, she had to recuse herself.
Mitch later said that Judge Bouressa recused herself because of a potential conflict caused by the fact that she was a former Scheef & Stone associate. If that were true, then I didn’t understand why she hadn’t recused herself sooner. She knew that she was a former S&S associate when I filed the lawsuit two months earlier. She knew two months ago that she had been assigned to a case in which I was suing her former law firm and one of the partners who had been at that firm when she worked there. She knew two months ago that two partners at her old law firm were acting as attorneys in the case. (She also knew that one of those attorneys was acting as an expert witness, because she had encouraged him to submit his affidavit at the hearing a couple of weeks earlier.)
Nothing had changed about her relationship with Tommy, Mitch, and S&S in the two months since I had filed the case. So what had happened to make Judge Bouressa suddenly decide that, according to Mitch, she had to recuse herself because there was a potential conflict caused by the fact that she was a former S&S associate?
It bothered me that Judge Bouressa had conducted the hearing with the knowledge that she was a former S&S associate, and then later had seemingly recused herself for that very reason. The new judge who would be assigned to the case would not have had the benefit of presiding at that hearing and listening to our arguments in person. (“Hearing” the arguments is, of course, the whole purpose of conducting a “hearing.”) I didn’t even know if the new judge would be able to get hold of a transcript – and if not, Tommy, Mitch, and I would have wasted our time. (This was more of a problem for me than it was for Tommy and Mitch because I didn’t have a client I could bill $2,425 for attending the hearing, like Tommy and Mitch did.)
So now I had nothing to do but sit back and wait for Judge Wheless to appoint a new judge. At least I knew that I probably wouldn’t have to suffer through another recusal, because Judge Wheless had a dozen other Collin County judges to choose from, so surely he could find a judge who had no former association with Scheef & Stone…
Document Links
Judge Bouressa’s recusal
Leave a Reply