Marilyn Tennissen Jun. 16, 2014, 5:24pm

The plaintiffs’ attorneys who traded emails with the judge say he isn't biased and should not be recused from presiding over the case to determine the constitutionality of the funding system for the public schools in Texas.

Lawyers for the state, however, want Travis County District Judge John Dietz removed.

A visiting judge will hear arguments over the motion for recusal at a hearing set for Friday, June 20, in Austin.

Dietz is presiding over the trial stemming from suits filed by hundreds of the public school districts in Texas three years ago. He has already ruled that the $5.4 billion in cuts from the state's public school funding made the finance system unconstitutional. But some of that funding has been restored and the recent legislature approved new testing standards, so Dietz reopened the case earlier this year and was expected to make a decision this summer.

Texas Attorney General Greg Abbott wants Dietz removed because a series of emails between the judge and some plaintiffs’ attorneys show potential bias by the judge toward the school districts. The emails have been sealed by the court, but reportedly were exchanged from March 19 to the middle of May.

Abbott ’s office claims the content of the emails show Dietz “coaching the plaintiffs’ counsel in order to improve their case.”

According to the Houston Chronicle, lawyers representing the Texas Taxpayer & Student Fairness Coalition, one of the plaintiffs suing the state, responded to Abbott’s motion with a 49-page motion of its own, arguing the state’s attorneys have failed to prove that Dietz showed partiality.

"One would think that, under the circumstances, the state would have taken great pains to provide a full and accurate account of the relevant facts, in fairness to the trial judge accused of partiality," the motion states. "But the state did not do so."

The attorneys also disputed the state's allegation that Dietz coached them on how to present their findings. They argued that Dietz's communications were "nothing more than the judge giving guidance as to how he wants the findings revised to reflect his view of the law and the evidence."

In addition, they pointed out that both sides were allowed to communicate with Dietz about findings of fact without informing the other party.

Since Dietz won't step down himself, the recusal matter was sent to a presiding regional judge. Bexar County District Judge David Peeples will hear the plaintiffs’ arguments and the state’s motion in Austin.

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