EDINBURG — A county court-at-law judge has declined to remove himself from presiding over a misdemeanor case after an attorney filed a motion for the judge’s recusal, citing an alleged impartiality.
Hidalgo County Court-at-Law No. 7 Judge Sergio Valdez denied the motion to recuse himself Monday and referred the case to the presiding judge of the 5th Administrative Judicial Region to assign a visiting judge to determine whether Valdez can remain.
The recusal motion was filed Feb. 7 by attorney Abel Hinojosa on behalf of his client, Jason Miller, believing Valdez is biased due to a friendship between the judge and state District Judge J.R. “Bobby” Flores, who is Miller’s former father-in-law.
“Judge Sergio Valdez through his actions and inactions has made this criminal case appear personal to him,” the recusal motion reads, alleging Valdez has refused to provide a trial date for Miller, who was charged in 2016 with violating a protective order filed by his ex-wife, Flores’ daughter.
Valdez did not return a message requesting comment left on his court office phone.
The 5th Administrative Region has yet to appoint a judge to hear the motion to recuse or set a date for the hearing.
F. Scott McCown, a retired Travis County state district court judge and current law professor at the University of Texas at Austin, said judges must consider whether motions of recusal filed against them are “illegitimate trial tactics” or “legitimate, good faith requests.”
If the motion is filed in good faith, “it’s better to voluntarily step aside,” McCown said, than risk the embarrassment of having another judge tell you to do so.
Hinojosa, Miller’s attorney, previously told The Monitor he did not take lightly the decision to file the recusal motion, noting he has rarely filed such a motion during his three decades of practicing law.
The burden of proof required for an attorney to convince a visiting judge to recuse another judge is high, McCown said, noting: “I think good serious motions are probably granted a little less than half the time.”
“The system has to be pretty hard-nosed about this,” the retired judge added. “You’d have a lot of motions and efforts to get rid of judges if you didn’t have a high burden of proof.”
On Thursday, Hinojosa filed an application for writ of habeas corpus and a motion to strike unreasonable bond conditions that argues the bond conditions Valdez imposed on Miller are “unreasonable.”
Miller has been out on bond since Valdez arraigned him on the class A misdemeanor violation of a protective order charge in March 2016 and has set a range of conditions, which have increased over the past three years, the most serious of which is that Miller “not have any type of direct or indirect contact” with his children, according to the motion.
This bond condition, imposed during a July 2018 hearing, contradicts with another judge’s order allowing Miller unsupervised visits with his 5-year-old daughter and 3-year-old son.
“Jason Miller alleges that Judge Sergio Valdez’s rulings have been to aide Kellie Lynn Flores in order to prevent him from seeing the children,” the motion for Valdez’s recusal reads. “Jason Miller alleges that Judge Sergio Valdez has intentionally interfered with the rulings of Judge Jose Manuel Bañales that allow visitation with the children.”
No action can be taken on the most recent writ until a visiting judge determines whether Valdez can continue to preside over Miller’s case.