IN THE UNITED STATES DISTRICT COURT syerar ney) FOR THE WESTERN DISTRICT OF TEXAS. AUSTIN DIVISION 7003 JH 30 PH 3:35 AAMES CAPITAL CORPORATION, Plaintiff, vs Case No. A-03-CA-282-SS CHARLES EDWARD LINCOLN, Defendant. ORDER BE IT REMEMBERED on the 24* day of June 2003 the Court called for hearing the above- styled cause. Before the Courts the Defendant's Motion to Recuse the Honorable Sam Sparks [#13] and Supplemental Motioh to Recuse the Honorable Sam Sparks and Motion to Dismiss Aames” Application under Texas Rule of Civil Procedure 736 On Its Own Terms or on Ground of Forum ‘Non Conveniens [#14], and Plaintiff's Motion to Adopt Texas Rule of Civil Procedure 736 and for Special Hearing [#7] and Defendant's response thereto [#9]. Having considered the motions, responses, arguments of counsel at the hearing, and the relevant law, the Court now confirms its oral announcements with the following opinion and written orders: 1. Motion to Recuse The plaintiff, Charles Edward Lincoln moves for the undersigned to recuse himself under both 28 U.S.C. § 144 and § 455(b)(1). According to § 455(b)(1), a judge must recuse himself if he has personal bias or prejudice against a party. 28 U.S.C. § 455(b)(1). However, in order for Lincoln to prevail in his motion to recuse, he must do more than identify apparently prejudicial or impartial judicial conduct—he must identify prejudicial or impartial conduct that is extrajudicial in nature, ie., Ilnot within the judicial context. See In re Corrugated Container Antitrust Litig., 614 F.2d 958, 965 (5* Cir. 1980); see also Litkey v. United States, 510 U.S. 540, 554 (1994) (“Opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.”). Additionally, “judicial remarks during the course ofa trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge.” Liteky, 510 US. at 554. And finally, “judicial rulings alone almost never constitute valid basis for a bias or partiality motion.” Id. at 555; see also Berger v. United States, 255 U.S. 22, 31 (1921) (“{T]he bias or prejudice which can be urged against a judge must be based upon something other than rulings in the case.”); Trust Co. of Louisiana v. N.N.P., Inc. 104 F.3d 1478, 1491 (5% Cir. 1997) (holding adverse rulings, even those involving admonishments by the trial judge, do not demonstrate the trial judge’s impartiality and therefore do not warrant his recusal). ‘The undersigned has never had any extra-judicial interactions with or related to Lincoln. It is true that the undersigned has presided over cases that have been decided adversely to Lincoln in which Lincoln was the advocating attomey and in which he was a party, including his disbarment proceedings. Even assuming the undersigned made the comments alleged by Lincoln in his motion, all comments were (by Lincoln’s own admission) “in open court’ ~ again, in the judicial context. See Mot, to Recuse 423. Everything the undersigned knows about Lincoln stems from his litigating in this Court or his being party to a lawsuit in this Court, and Lincoln does not allege otherwise in hismotions." The recusal rate would be overwhelmingly high if any time a judge had knowledge about a party that arose from prior proceedings in front of that judge he had to recuse himself, The undersigned, like any other federal district judge, frequently must preside over multiple criminal prosecutions of one defendant and does not recuse himself in those situations. Accordingly, the undersigned will not recuse himself inthis case. Lincoln argues the undersigned should recuse himself because he may be called as acharacter witness in this case to testify about Lincoln’s credibility? The undersigned will not be called as a character witness inthis foreclosure action. At the hearing, Lincoln conceded as much. Moreover, all determinations of credibility will be made by the jury. Lincoln also moves for recusal under § 144. A judge does not actually rule on the merits of the § 144 recusal motion. Instead, he must either (1) recuse himself, or (2) recuse himself and determine if the movant has complied with the requirements of § 144. If the movant is in compliance with § 144, then the judge refers the motion to another judge who evaluates the merits of the motion. To comply with § 144, the movant must submit an affidavit that alleges facts that show “the judge’s bias is personal, as opposed to judicial, in nature.” Hepperle v. Johnston, 590 F.2d 609, 613 (5 Cir. 1979) (quoting United States v. Archbold-Newball, 554 F.2d 665,682 (5* Cir, 1977). In this case, Lincoln did not file an affidavit at al. He contends he did not have enough time. While itis true the Court scheduled the hearing (actually, to hear the Plaintiff's motion) with shorter incoln also makes irrelevant allegations against the Honorable James Nowlin who is playing no role in the adjudication of this case. In support, Lincoln cites Dennis v. Sparks, 449 U.S. 24 (1980), which merely holds that no privilege exists that prevents a judge from being required to testify about his judicial conduct in third-party litigation against alleged coconspirators of the judge. 3