AUSTIN - Gov. Greg Abbott can appoint two substitute justices in the Volkswagen “dieselgate” case currently before the Texas Supreme Court, according to the high court.
According to Supreme Court’s Nov. 18 opinion, Attorney General Ken Paxton, acting on behalf of the Texas Commission on Environmental Quality, sued VW Germany and Audi Germany (two related foreign corporations), asserting violations of Texas environmental statutes in connection with an alleged vehicle-emissions cheating scandal, commonly referred to as “dieselgate.”
Court records show the companies filed special appearances challenging Texas courts’ authority to exercise personal jurisdiction over them, which the trial court rejected. On appeal, a divided appellate court reversed and dismissed the state’s claims.
The state sought review with the Supreme Court and two justices have since recused themselves, prompting the chief justice to request by letter that the governor appoint substitutes to help determine the case.
The companies objected and argued that even if the governor is not technically a named party to the actual suit, he “has the kind of stake in these cases” that would violate constitutional guarantees of due process and due course of law if he were to commission justices, the opinion states.
The Supreme Court found that Abbott’s appointment of two substitute justices to participate in the determination of these cases does not, in and of itself, create a serious risk of actual bias and therefore does not violate the due-process or due-course-of-law provisions. And nor does it taint the commissioned justices with the appearance of partiality or impropriety under Texas ethical rules.
“In short, we do not agree that the mere fact of the Governor’s selection of justices or judges to participate in a particular case would necessarily create in reasonable minds a perception that these justices or judges would be unable to carry out their responsibilities with integrity, impartiality, and competence; otherwise, every eligible justice or judge would necessarily be disqualified,” the opinion states. “In these cases, as in all other cases, whether to recuse must be a decision for the commissioned justice or judge in the first instance.”
Case No. 21-0130