QUESTION: Should a judge recuse or disqualify himself in a case involving Southwestern Bell Telephone Company when he owns shares of stock in American Telephone & Telegraph Company?

ASSUMED FACTS: In preparing our answer we have assumed that AT&T has more than six hundred million shares of stock outstanding in the hands of nearly three million stockholders; that the judge owned less than ten shares having a gross market value of approximately $500 and an annual dividend payment of less than $35. We have further assumed that AT&T owns all or substantially all of the capital stock of Southwestern Bell.

ANSWER: Your Committee does not have authority to pass upon the question of whether or not the judge is disqualified. The Constitution (Art. 5, Sec. 11) and the statute (Art. 15, V.A.C.S.) speak to the disqualification of a judge. The determination of disqualification is a judicial function. See authorities collated in the concurring opinion in City of Pasadena v. State, 428 S.W.2d 388, 400 (Tex. Civ. App.--Houston [1st Dist.] 1967), reversed on other grounds, 332 S.W.2d 325 (Tex. 1969). See also, 25 A.L.R. 3d 1331, 1339. We decline to pass upon whether a judge, under these enactments, must note his disqualification to participate in the case.

On the other hand, whether or not a judge should recuse himself from a pending litigation presents a question within the authority of this Committee since it is germane to Canon 3C(1)(c) and 3C(3)(b). The Committee is of the opinion that neither of the cited sections of Canon 3C requires the judge to recuse himself from participation in a case involving Southwestern Bell Telephone Company. His financial interest, as defined in Canon 3C(3)(b), could not be substantially affected by the outcome of the proceedings, as provided in Canon 3C(1)(c).

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*Provisions relating to recusal and disqualification were removed from Canon 3C effective January 21, 1987. See Rules 18a and 18b, Texas Rules of Civil Procedure.