Article V, Section 11 of the Texas Constitution ("Disqualification of Judges; Holding Court for Other Judges")

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As amended November 6, 2001:

No judge shall sit in any case wherein the judge may be interested, or where either of the parties may be connected with the judge, either by affinity or consanguinity, within such a degree as may be prescribed by law, or when the judge shall have been counsel in the case. When the Supreme Court, the Court of Criminal Appeals, the Court of Appeals, or any member of any of those courts shall be thus disqualified to hear and determine any case or cases in said court, the same shall be certified to the Governor of the State, who shall immediately commission the requisite number of persons learned in the law for the trial and determination of such cause or causes. When a judge of the District Court is disqualified by any of the causes above stated, the parties may, by consent, appoint a proper person to try said case; or upon their failing to do so, a competent person may be appointed to try the same in the county where it is pending, in such manner as may be prescribed by law.

And the District Judges may exchange districts, or hold courts for each other when they may deem it expedient, and shall do so when required by law. This [sic] disqualification of judges of inferior tribunals shall be remedied and vacancies in their offices filled as may be prescribed by law.

Editor Comments

This section is derived from Article IV, Section 14 of the Texas Constitution of 1845, which read: "No Judge shall sit in any case wherein he may be interested, or where either of the parties may be connected with him by affinity or consanguinity within such degrees as may be prescribed by law, or where he shall have been of counsel in the cause. When the Supreme Court, or any two of its members, shall be thus disqualified to hear and determine any cause or causes in said Court, or when no judgment can be rendered to any case or cases in said court, by reason of the equal division of opinion of said Judges, the same shall be certified to the Governor of the State, who shall immediately commission the requisite number of persons learned in the law, for the trial and determination of said case or cases. When the Judges of the District Court are thus disqualified, the parties may, by consent, appoint a proper person to try the said case; and the Judges of the said Courts may exchange Districts, or hold Courts for each other when they may deem it expedient, and shall do so when directed by law. The disqualifications of Judges of inferior tribunals shall be remedied as may hereafter be by law prescribed."

Note that the phrase "District Judges may exchange districts, or hold courts for each other" has been construed broadly to authorize a district judge, without regard to the matter of disqualification, to preside in any judicial district in the state.

—Attorney Steve Smith

Recent Decisions

  • Freedom Communications, Inc. v. Coronado, 372 S.W.3d 621, 624 (Tex. 2012) (citations omitted) ("A judge is 'interested' in a case—and thus disqualified under Article V, Section 11—if an order or judgment in the case will directly 'affect him to his personal or pecuniary loss or gain.' . . . Thus, the disqualification of a judge is a jurisdictional issue that cannot be waived. Limas's order denying Freedom's summary-judgment motion is the sole basis for appellate jurisdiction over this interlocutory appeal. If Limas's order is void, then the court of appeals did not have authority to consider the merits of Freedom's appeal from the order denying summary judgment, and neither do we.")
  • Tesco American, Inc. v. Strong Industries, Inc., 221 S.W.3d 550, 554 (Tex. 2006) ("Repeatedly, the people of Texas have insisted on constitutional protection against 'counsel in the case' becoming a judge in the guarantee that makes no distinction between trial and appellate judges. When we adopted Rule 18b(1)(a) and applied it in O'Connor, we construed 'counsel' to include the former firms of trial judges; we think construing the Constitution otherwise for appellate judges would be construing it too narrowly. We recognize the risk cited by the First Court that vicarious disqualification may allow litigants to 'lie behind the log' and move to disqualify only if an appeal is unsuccessful.")

Historic Decisions

  • Hathorne v. State, 459 S.W.2d 826, 829 (Tex.Crim.App. 1970) (citations omitted) ("These provisions have been construed as being mandatory and must be observed. It has been held, however, that to come within the meaning of 'counsel in the case' in the statute prescribing qualification of judges, it must appear that the judge acted as counsel in the very case before him. It is, of course, well settled that the mere fact that the trial judge personally prosecuted the appellant in past cases does not disqualify him from presiding over . . . . And it would logically follow that the same rule would have application where the trial judge had defended the accused at the time of the prior conviction.")
  • Indem. Ins. Co. v. McGee, 356 S.W.2d 666, 668 (Tex. 1962) ("What is material is that under the pleadings it was within the power of the trial judge, but for his disqualification, to have entered judgment awarding attorney's fees to Ward Stephenson. . . . We have no doubt that the trial judge's integrity is of the highest. However, as Chief Justice Willie stated in the case of Hodde v. Susan, 58 Tex. 389, 394, 'it was the object of the Constitution to place judicial officers beyond the temptation which such circumstances would throw in their way.' The judiciary must not only attempt to give all parties a fair trial, but it must also try to maintain the trust and confidence of the public at a high level.")
  • Isaac v. State, 257 S.W.2d 436, 437-38 (Tex.Crim.App. 1953) ("The cited cases deal with special . . . . Under the provisions of Sec. 11 of Art. 5 of the Constitution of Texas, District Judges may exchange districts or hold court for each other when they deem it expedient. Art. 1916, R.C.S., provides: 'A judge of the district court may hold court for or with any other district judge; and the judges of such courts may exchange districts whenever they deem it expedient.' Judge McDonald being at the time the regularly elected judge of the 66th Judicial District of this State, and not a 'special judge', was authorized to preside for Judge Rogers without the necessity of the entry of a formal order.")
  • Randel v. State, 219 S.W.2d 689, 697-98 (Tex.Crim.App. 1949) ("The expression, 'whenever they deem it expedient,' as contained . . . . No limitation as to time, place, or occasion when the exchanges of benches might occur has been fixed. So if district judges deem it expedient to exchange benches during the trial of a case, that power has been conferred and their action in so doing becomes reviewable only to determine if an abuse of discretionary power has occurred. From what has been said, it is apparent that the common-law rule requiring that the same judge preside throughout the trial of a felony case has been expressly abrogated by the Constitution and statutes of this State.")
  • Ex parte Pease, 57 S.W.2d 575, 576-77 (Tex.Crim.App. 1933) ("[E]xpressed prejudgment of a case will not disqualify the judge in view of the restricted language of our statutes on disqualification, but in cases where the gist of the whole determination is whether some matter be a contempt of the court, and offer is made in proper form to show that there has been expressed prejudgment of such matter by the very judge involved, it occurs to us that the vastly better practice would be from the very nature of the case, to call on some judge . . . whose rulings have not been contemptuously treated, and submit the matter to his calm judgment, especially in cases of constructive contempt.")
  • Love v. Wilcox, 28 S.W.2d 515, 518 (Tex. 1930) (citations omitted) ("[S]uch grounds have always been held by the Supreme Court to be exclusive. Under the Texas Constitution, it is the duty of the judge to sit save '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.' Every Constitution of Texas since that of 1845 has forbidden a judge to sit in any case wherein he is interested. So often has this phrase, 'case wherein he is interested,' been interpreted that its meaning no longer admits of reasonable doubt.")
  • Eucaline Medicine Co. v. Standard Inv. Co., 25 S.W.2d 259, 262 (Tex.Civ.App.–Dallas 1930, ref'd) ("After making provision for holding special terms of district courts, also for holding court in instances where the regular judge is absent, or from any cause is disabled or disqualified to preside, or has exchanged districts with another judge, the Constitution makes the further provision in section 11, art. 5, as follows: '* * * And the district judges may * * * hold courts for each other when . . . . The quoted provision has a distinct meaning all its own, and obviously contemplates the holding of court by one judge with another, under circumstances not elsewhere provided for in the Constitution.")
  • Johnson v. State, 134 S.W. 225, 226 (Tex.Crim.App. 1910) ("The Constitution says they may exchange, and that they shall . . . . We think it may often happen that a district judge, who has the care of a family and sometimes cares of business, is authorized, when in his judgment fairly exercised it is necessary for his own health or to care for the health of his family, or to look after important business matters, to temporarily absent himself from his post of duty and by exchange, or by calling on the incumbent of an adjoining or adjacent district, provide the means for the continued holding of the court, and that no litigant in such case has a right to retire such exchanging judge from the bench.")
  • Long v. State, 127 S.W. 551, 557 (Tex.Crim.App. 1910) ("There is a question presented in motion for rehearing as an original proposition . . . . [I]nasmuch as the Honorable Felix J. Mccord, one of the members of this court, entered his disqualification in this case that the decision is erroneous and void because two members of the court could not constitute such a quorum as was authorized to render the opinion or adjudicate the case. We are of opinion that this question should be decided adversely to appellant. In the case of City of Austin v. Nalle, 85 Tex. 520, 22 S.W. 668, 960, this question was decided by the Supreme Court of our state adversely to appellant's contention.")
  • City of Oak Cliff v. State, 79 S.W. 1068, 1069 (Tex. 1904) (citation omitted) ("From these authorities, and others . . . , we think the rule may be stated negatively in this form: 'That where a judicial officer has not so direct an interest in the cause or matter as that the result must necessarily affect him to his personal or pecuniary loss or gain, * * * then he may sit.' We are of opinion that Chief Justice Gaines has not such direct and immediate interest in the result of this suit as would disqualify him under these authorities. The judgment, in our opinion, will not directly produce the issuing of the bonds nor the levy of any tax, and therefore it cannot be said that he is directly or immediately interested.")
  • Dulaney v. Walsh, 38 S.W. 748, 749 (Tex. 1897) ("If this latter was the sole provision found in the amendments in relation to the subject, we should adhere to our former ruling; but a previous section of the same article, after providing the remedy in case of the disqualification of a judge of any one of the higher courts having appellate jurisdiction, as well as of a judge of the district court, prescribes that 'the disqualification of judges of inferior tribunals shall be remedied . . . . Hence we are of the opinion that the legislature had authority to provide either that, in the contingency mentioned, the case should be transferred to the district court, or that a special judge should be appointed.")
  • Winston v. Masterson, 27 S.W. 768, 768 (Tex. 1894) ("The judge and the attorney were connected within the degree prescribed by law, and the question arises whether the attorney was a 'party' . . . . If relationship to one interested in the result of an action would have disqualified the county judge, then he would have been disqualified, although the interest of his brother was contingent. Chambers v. Hodges, 23 Tex. 113. Interest of a judge in a matter in litigation disqualifies him, but his disqualification on account of some interest other persons may have, under the terms of the constitution, arises only when such persons are related to him within the prescribed degrees, and are parties.")
  • Nalle v. City of Austin, 22 S.W. 668, 671 (Tex. 1893) ("They maintain that amended section 11, art. 5, of the constitution, imperatively requires that when one of the judges of any one of the higher courts is disqualified the fact shall be certified, and the governor shall appoint a special judge in his stead; and they further contend that the intent becomes more manifest when that section is construed in connection with the section for which it was substituted. The following is a copy of so much of the original section . . . . The amended section obviates this difficulty by providing for an appointment when one only is disqualified. It does not follow that an appointment is to be made in every such case.")
  • Munzesheimer v. Fairbanks, 18 S.W. 697, 698 (Tex. 1891) ("When a special term is called in the manner provided for by the statutes on the subject, and a judge qualified to hold it can be procured by observing such statutes as are applicable, when the judge of the court is absent, we think it may and should be done without regard to the cause of the absence of the judge, and the court so called and organized should be held, notwithstanding another court may be lawfully in session in the same district. . . . The constitution provides that 'the district judges may exchange districts, or hold courts for each other, when they may deem it expedient.' Section 11, art. 5. The judgment is affirmed.")

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