April 08, 2011, 14:19andersondamisd
Recusal of Judge after Appeal
Here's my situation: The DA office represented our local Bail Bond Board in a civil bench trial about taking a bondsman's license. All the local judges were conflicted out, so a visiting judge was assigned. We try the case and the judge ultimately ruled against us. We felt that the rulings were not supported by fact or law and that we could win on appeal, but the court reporter has lost the record and the Court of Appeals is probably about to order a new trial. We'd love a new trial, but not in front of this same judge because we don't think he was fair and impartial the first time.
My question is this: can we ask for a new judge to be assigned to the case once the Court of Appeals orders a new trial? Have we waived that right by not asking for a different judge when he was first assigned to the case originally?
Gov't Code 74.053 says that we get one objection automatically, but only if it's made timely (within seven days after notice of the assignment). Does the fact that the appellate court kicked this back down to us reset that clock?
I know this is not strictly a criminal question, but the solution in a criminal case would likely be the same, and winning this case would go a long way towards cleaning up the mess that this bondsman leaves on our local criminal justice system.
April 09, 2011, 09:50BullDog
See Starnes v. Chapman 793 SW 2nd 104 (1990). Here's the Google Scholar link... Starnes v Chapman
Assuming the judge signed a final, appealable order the court lost plenary power 30 days after the judgment was signed unless post judgment motions were filed. If the case is remanded for a new trial the judge will have to be reassigned. You get another chance to strike him. Starnes has the details.
My bite is as bad as my bark!
April 12, 2011, 16:42andersondamisd
Thanks BullDog, you've just made my day!