NUMBER 13-14-00689-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

 

FRANKIE WAYNE NEALY, Appellant,

v.

ROBIN MICHELLE NEALY, Appellee.

On appeal from the 36th District Court

of San Patricio County, Texas.

ORDER

Before the Court En Banc

Order Per Curiam

This cause is before this Court on appellant’s “Unsworn Declaration in Support of 

Motion to Recuse.” Appellant’s motion requests that Justice Gina M. Benavides and 

Justice Gregory T. Perkes be recused on the basis appellant cannot receive a fair and 
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impartial appeal because the justices “participated in my criminal conviction appeal, 

adversely ruling against me and upholding the trial court’s judgment revoking my 

community supervision that resulted in a[n] aggravated life sentence plus 20 years.”1

Rule 16 of the Texas Rules of Appellate Procedure states that the grounds for 

recusal of an appellate court justice are the same as those provided in the rules of Civil 

Procedure. TEX. R. APP. P. 16.2;See also TEX. R. CIV. P. 18a, 18b. Rule 18b(2) of the 

Texas Rules of Civil Procedure identifies the grounds for recusal. See TEX. R. CIV. P. 

18b(2); McCullough v. Kitzman, 50 S.W.3d 87, 88 (Tex. App.BWaco 2001, pet. denied) 

(order). It provides that a judge shall recuse himself or herself in a proceeding in which 

the judge’s impartiality might reasonably be questioned, as asserted by appellant in this 

case. See TEX. R. CIV. P. 18b(2)(a). 

Rule 16.3 of the Texas Rules of Appellate Procedure prescribes the procedure to 

be followed for recusal of an appellate justice or judge before whom the case is pending. 

The Rule provides that before any further proceeding in the case, the challenged justice 

or judge must either remove himself or herself from all participation in the case or certify 

the matter to the entire court, which will decide the motion by a majority of the remaining 

judges sitting en banc. See TEX. R. APP. P. 16.3(b). The challenged justice or judge 

 

1 On March 14, 2013, this Court issued a memorandum opinion before Justices Benavides, Vela, 

and Perkes with Justice Vela not participating because her term of office expired on December 31, 2012. 

The opinion affirmed the judgment of the trial court. See Nealy v. State, No. 13-11-00288-CR, 2013 WL 

1092417 (Tex. App. Corpus Christi March 14, 2013, pet. ref’d). 
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must not sit with the remainder of the court to consider the motion as to him or her. See 

id.

Pursuant to the procedure outlined in Rule 16.3(b), upon the filing of the recusal 

motion and prior to any further proceedings in this appeal, each of the challenged justices 

of this Court considered the motion in chambers. See TEX. R. APP. P. 16.3(b). Justices 

Gina M. Benavides and Justice Gregory T. Perkes each found no reason to recuse 

themselves and certified the matter in writing to the remaining members of the court en 

banc. See id.; McCullough v. Kitzman, 50 S.W.3d at 88. The six justices met to 

deliberate and decide the motion to recuse with respect to each challenged justice by a 

vote of the remaining justices en banc. No challenged justice sat with the other members 

of the Court when his or her challenge was considered. See TEX. R. APP. P. 16.3(b). 

The Court, having examined and fully considered the pleadings and the record as 

to the allegations pertaining to each challenged justice, and finding the allegations to be 

unsubstantiated, each motion to recuse is denied with respect to each challenged justice. 

This Court finds no reason to recuse Justice Gina M. Benavides or Justice Gregory T. 

Perkes. Accordingly, appellant’s motion to recuse Justice Gina M. Benavides and 

Justice Gregory T. Perkes is DENIED.

It is so ORDERED.

PER CURIAM

Delivered and filed the

12th day of July, 2016.