### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00024- CV

In re Walter Dem ond

NO. 03-10-00027- CV

In re Bennie F uelberg

ORI GINAL P ROCEEDI NGS F ROM B LANCO CO UNTY

M E M O R A N D U M O P I N I O N
Petitioners Walter Demond and Be nnie Fue lberg reque st mandamus re l i ef with respe ct to the order s of J udg e Be rt Richardson deny ing the Motion t o Di s q ualify or Recuse J udg e Dan Mills from serving as the trial judge in the underly ing crimin al ca u s es in which Petitioners are defe ndants. The P etitioners s eek to have J udg e Mi lls disqualified or rec u s ed from serving in the criminal cases ba sed on the contention that J udg e Mi lls has a financ ial “intere st” in the case s beca

use he is a member of Pederna les Electric Cooperative, I nc. (the “PEC”) by virtue of his being a proper

ty owner in the PEC’s service are a and obtaining elec trical service from the PEC. Petitioner arg ues that in the event there is a conviction in either case , J udg e Mills may preside over sentenc ing that could include possible restitution to the PEC and that could, there by , potentiallybenef

it J udg e Mills as a member of the PEC. Petitioners arg ue that this is a sufficie nt interest in the
case s to require disqualification or re cusal of Judge Mills.

J udg e Richardson held hear ings on Petitioners ’ motions on October 1, 2009, and November 23, 2009. The court rec eived evidenc e and made finding s of fac t and conclusions of law. The court enter ed an order deny ing the motions to disqualify or rec use on November 30, 2009, and
a supplemental order explaining his rea soning on Dec ember 14, 2009. J udg e Richardson was very thoughtf ul and thoroug h in his consideration of the evidenc e and the applicable law. He noted that J udg e Mills has been a

member of

the PEC since 1980 and rec eives his e lectric ity service throug h the PEC. J udg e Mills is one of over 200,000 members serve d by the PEC. I n the event that either Petit i oner is convicted and ordered to pay any restitution to the P EC, such funds will be available to PEC members only if the P EC board votes to pay out a divi d end of any or all of t he funds, and J udg e Mills’s interest in such a dividend would be (1) the same as ever y other proper

ty owner in the PEC service a

rea , and (2) de minimis. 1 We ag ree with J udg e Richardson’s analy sis in his supplemental order , and we ag ree that this “intere st” is akin to the interest a judge might have in a case as a result of being a taxpay er in a district aff

ecte d by a piece of litigation or a customer in an are a serve d by a utilit y provider who is involved in a cas e b ef

o re t h e judge
. Under curr ent law, this is not the sort of interest that will require disqualification or rec usal. See Hidalgo County W ater Improve ment Dist. No. 2 v. Blalock ,

The evidenc e demonstrated that any interest J udg e Mills may have in funds that might be 1 paid t o PEC members as a part of surplus that m i ght result from an order of restitution that might result from a conviction—a true conting ency —will likely be measure d in cents and, at the very most, a fe w dollars. 2301 S
. W
. 2 d 593, 596 (Tex. 1957) (in lawsuit betwee n water improvement districts, judge not

disqualified by virtue of his being patron of water sy stem); Richardson v. State , 4 S.W .2d 79, 81-82 (Tex. Crim. App. 1928) (judg e in criminal case not disqualified for matter th at i s “trivial, specula tive, and remote” ); Scown v. City of Alpine , 271 S.W .3d 380, 383-84 (Tex. A pp.—El Paso 2008, no pet.) (fa ct that judge is taxpay er does not require rec usal); Rio Grande Valley Gas Co.

v. City of Pharr , 962 S.W .2d 631, 638-39 (Tex. App.—Corpus Christi 1997, pet. dism’d w.o.j.) (“I t is well-e stablished that an int ere st held by a judge which is common with that of t he pub l i c is not disqualify ing.” ).

The Petitions for Writ of Mandamus ar e denie d.

__________________________________________ G. Alan Waldrop, Just ice Be fore Chief J ustice Jones, J ustices Pemberton a nd Waldrop Filed: F ebrua

ry 19, 2010

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