A motion has been filed with the Texas Health and Human Services Appeal Division to have Judge Rick Gilpin disqualified as a hearing officer for cases involving dentists that started while Gilpin was still an attorney within the Attorney General’s Office before becoming an HHSC judge. The motion is based on Article 5, Section 11 of the Texas Constitution that “No judge shall sit in any case wherein the judge may be interested, or where either of the parties may be connected with the judge, either by affinity or consanguinity, within such a degree as may be prescribed by law, or when the judge shall have been counsel in the case.”
The motion was filed by attorney Tony Canales in the case of M&M Orthodontics of San Antonio but the motion states it is also for “any and all administrative Health and Human Resource Commission Appeals division cases where Hearing Officer Gilpin was employed at the Texas Attorney General‘s ofﬁce on or before the Texas Attorney General initiated or intervened in this proceedings.”
“Appearance of impartially even if in actuality there is no impropriety”
Specifically the motion partially states:
“The Texas Constitution and Rules of Civil Procedure disqualify a judge from presiding over a case in which “a lawyer with whom the judge previously practiced law served during the association as a lawyer concerning the matter” or “when the judge shall have been counsel in the case …” In other words, the Texas Constitution protects against “counsel in the case” becoming a Judge in the case.
“Hearing Officer Rick Gilpin is presently an administrative Hearing Ofﬁcer with the Appeals Division, Health and Human Services Commission, Austin, Texas whose function is to conduct fair hearings and issue decisions regarding Medicaid matters. Further, Hearing Ofﬁcer Gilpin is charged in conducting all hearings in accordance with the Texas Administrative Procedures Act (APA), Chapter 201 of the Texas Government Code and the Texas Rules of Civil Procedure.
“Hearing Ofﬁcer Rick Gilpin is disqualiﬁed from presiding over this matter because before he “took the bench” in this case he was “counsel” in this case within the meaning of Article V, Section 11 of the Texas Constitution, which states in part that “no judge shall sit in any case. . .when the judge shall have been counsel in the case.” Though Hearing Officer Gilpin never actually participated in this matter his colleagues in the Ofﬁce of the Attorney General including lead counsel Mr. Ray Winter did participate. Under Texas law Hearing Ofﬁcer Gi1pin’s prior employment with the Attorney General’s ofﬁce vicariously disqualiﬁes him as having been “counsel in the case”. The Texas Supreme Court has held that the Constitutional basis to disqualify Judges is to preserve the appearance of impartially even if in actuality there is no impropriety.
“It is an undisputed fact that HHSC Hearing Officer Gilpin was an Assistant Attomey General at the same time the Attorney General’s Ofﬁce served as counsel for Respondent HHSC-OIG in this case. Accordingly, Gilpin is vicariously disqualiﬁed under the Texas Constitution from presiding over this case.”
The motion was filed on the 12th of March.