State prison official seeks judge’s recusal, different authority to hear John Allen Rubio’s case

The director of state’s prison system has filed a motion requesting U.S. District Judge Rolando Olvera recuse himself from presiding over the death penalty case of John Allen Rubio. Bobby Lumpkin, director of Texas Department of Criminal Justice Correctional Institutions Division, filed the motion Monday stating since Olvera first stayed the case to allow Rubio to exhaust state remedies and then reopened case that “his prior involvement in Rubio’s case mandates disqualification under the relevant statute, the Director moves to have Judge Olvera recused and ask that this matter be assigned to a new judge,” the motion reads.

On Feb. 22, Olvera signed and order to reopen Rubio’s case. His order lifts a stay on the case and will allow Rubio’s attorneys to submit a seconded amended petition that may probably cite why the Brownsville father’s conviction should be tossed out. Lumpkin’s motion in part states that any justice, judge or magistrate in the United States shall disqualify himself from any proceedings in which his impartiality might be reasonably questioned. “ He shall also disqualify himself in the following circumstances: where he served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.” Since Olvera oversaw Rubio’s initial state habeas proceeding before Rubio’s trial, his active participation in the case likely disqualifies him, the motion states. “Judge Olvera was a ‘governmental employee’ who expressed an opinion concerning the merits of this particular case in controversy.”