RICHARDSON v. STATE (2026)

Petition for discretionary review refused.

CONCURRING OPINION

This is an unusual case. Appellant argues Justice Kristin Guiney of the First Court of Appeals, as the judge who presided over the convicting court when Appellant filed his writ application and referred the case to an associate judge, was constitutionally disqualified and thus could not consider his direct appeal to the First Court of Appeals.

I agree with the Court's refusal of Appellant's petition for discretionary review, though the case presents potentially important questions. I write separately to explain why I believe the First Court of Appeals, and Justice Guiney in particular, handled what happened here almost perfectly, and to explain what I believe to be best practices in a situation like this.

BACKGROUND

In 2003, Appellant pled guilty to second-degree felony possession of a controlled substance, was placed on straight probation for six years, and successfully completed his community supervision. More than twenty years later, he filed the instant Article 11.072 writ application, lodging several complaints, including various “ineffective assistance of counsel” claims. By that time, Judge Guiney had taken on the role of presiding judge for the convicting court. Judge Guiney referred the application to Associate Judge Jessica Estrada. In early 2025, while Appellant's case was still pending, Judge Guiney was elected to the First Court of Appeals. Judge Lance Long then assumed her role on the trial court bench and subsequently denied Appellant relief.

The following month, Appellant appealed to the First Court of Appeals and also filed an application for a writ of mandamus. He sought to have his appeal transferred to the Fourteenth Court of Appeals, alleging now-Justice Guiney maintained a conflict of interest as the former presiding judge of the convicting court. Unfortunately, Justice Guiney was on the mandamus panel issuing the denial of that request despite Appellant's notice of the issue and Rule 16.2.¹ In August of the same year, Applicant received notice Justice Guiney would also serve on the panel considering his direct appeal, although that communication also noted that the makeup of the panel was subject to change. Justice Guiney was ultimately not a member of the panel. Two other members of the merits panel had served with Justice Guiney in denying mandamus relief earlier, however.

Appellant then filed a motion to (1) disqualify Justice Guiney and the other justices on the panel, (2) vacate the panel's judgment as void due to Justice Guiney's claimed constitutional disqualification, and (3) withdraw the denial of mandamus. In response to this motion, Justice Guiney disqualified herself.²

The other justices on the panel declined to recuse themselves, and the en banc court, without participation of those justices, agreed with their decisions. Then, without her participation, the court of appeals sitting with all the other justices denied reconsideration of the Article 11.072 application.

ANALYSIS

Appellant now reurges his constitutional-disqualification claim.³ Justice Guiney's involvement in Appellant's Article 11.072 case on this record appears to have consisted of referring the matter to an associate judge. We do not know, nor could we know, the extent of communication between a presiding judge and an associate judge to whom a matter is referred. In other contexts, namely where a judge has participated in case as an advocate in a case, the United States Supreme Court has held that some form of communication should be presumed given the nature of the judicial process and the lack of public knowledge of its extent. See Williams v. Pennsylvania, 579 U.S. 1, 14–15, 136 S.Ct. 1899, 195 L.Ed.2d 132 (2016) (“The deliberations of an appellate panel, as a general rule, are confidential.”). The same logic arguably extends to this situation. Likewise, if we were dealing with a viable due process problem, we would presumably be obliged to assume the same imputation to the members of the mandamus panel carried forward to the merits panel and then to the en banc panel. See id.

Ultimately, I do not believe we are compelled to reach that question here in view of (1) the substantive review of the decision of the merits panel by the court sitting en banc without Justice Guiney's participation and (2) the intervening decision of the en banc court without any member of mandamus panel participating. The latter decision embraced the question sufficiently in my view to resolve the imputation problem. And, despite the salutary purposes underlying Rule 16.2—of compelling recusal on the basis of a justice based on participation in the lower court—that challenge is quite different from the problem presented in Williams. Unlike an advocate, a justice who served on a lower court is entitled to the presumption of impartiality and presumption of regularity flowing from any trial court judgment as it comes forward to appeal. If the justice is impartial in the lower court—and there is certainly no allegation to the contrary to suggest otherwise here—there is no constitutional appearance problem attendant to continued participation again on a higher court. To be sure, there is a potential problem of pride of authorship addressed in Rule 16.2 and the risk of that pride diminishing the appearance of fully independent appellate scrutiny. But, this is a far cry from affirming one's role as a protagonist.

Administrative issues like those Appellant presents are inevitable at any busy court. They do not, however, raise presumptive concerns of bias or partiality. Given Justice Guiney's role in the trial court, it is debatable whether her recusal was required, though the better practice in these situations in my mind is close to what the First Court of Appeals did here.⁴

When a justice is involved at the trial court level or the habeas court determining an Article 11.072 writ, that justice should not be assigned to the appeals panel, and if it happens by mistake, a new panel should be assigned instead of replacing only the affected justice. And, on a court with enough justices to permit it, a rehearing can be had with or without request from the litigants before another panel or en banc with or (perhaps preferably)⁵ without the participation of original members of the panel participants. This is also what happened here.

With these comments, I concur in the Court's decision to refuse Appellant's petition for discretionary review.

FOOTNOTES

1.   That rule provides, inter alia, “a justice or judge must recuse in a proceeding if it presents a material issue which the justice or judge participated in deciding while serving on another court in which the proceeding was pending.” Tex. R. App. P. 16.2. The rule, of course, does not define the degree of “participation” required or attempt any development of the assumed relation between a presiding and associate judges.

2.   While Appellant asked for Justice Guiney to be constitutionally disqualified, and the court of appeals order indicates she was disqualified under Article V, Section 11 of the Texas Constitution, the facts do not support that she was disqualified under that provision. The record before us does not reflect Justice Guiney holding a pecuniary interest in Appellant's case, nor does it reflect that she is related to Appellant, the prosecutor, or counsel for Appellant. See Tex. Const. art. V, § 11 (“No judge shall sit in any case wherein he may be interested, or where either of the parties may be connected with him, either by affinity or consanguinity, within such a degree as may be prescribed by law, or when he shall have been counsel in the case.”).

3.   A trial judge can be constitutionally disqualified under Article V, Section 11 of the Texas Constitution or under the federal Due Process Clause. Tex. Const. art. V, § 11; U.S. Const. amend. XIV; see Tex. Code Crim. Proc. art. 30.01.

4.   I assume, see supra note 1, that Rule 16.2 is properly read to treat the presiding judge as “participating” where he or she assigns a matter to an associate judge, given the functions involved. Even this is not certain from its text or purpose.

5.   In this case Justice Guiney's former panel mates presented the question of their further participation to other judges. The judgment of their remaining colleagues is entitled to deference and a presumption of regularity.