concurring in en banc order on motion to disqualify.
I respectfully concur. I reluctantly join the majority’s conclusion that Rule of Appellate Procedure 16.1 does not require the disqualification of Justice Higley. I believe that the question is very close. I decide as I do because the 1997 amendments to the appellate rules deliberately omitted a previous reference to Rule of Civil Procedure 18b, and instead denominated as grounds for disqualification those “determined by the Constitution and the laws of Texas.” Tex.R.App. P. 16.1. Basic rules of statutory construction inform us that such a deliberate omission signals that the grounds of rule 18b no longer apply to appellate court justices.
Having arrived at that conclusion, however, I am still not entirely certain of the scope of rule 18b. While 18b itself is not controlling on appellate court justices, is the rule broader than Article V, Section 11 of the Constitution, or is the rule conterminous? If the former, then we are right: disqualification is required only when the justice himself or herself actually represented the party. If the latter, then we are wrong, since that construction would mean that rule 18b’s vicarious representation would control and compel disqualification in this case. This latter interpretation seems to be supported by language in In re O’Connor, which states, “Rule 18b(l)(a) accordingly recognizes that a judge is vicariously disqualified under the Constitution as having ‘been counsel in the case’ if a lawyer with whom the judge previously practiced law served as counsel to a party concerning the matter during their association.” 92 S.W.3d 446, 449 (Tex.2002) (citing Tex. Const, art. V, § 11) (emphasis ours). The court strengthens this notion when it continues, “This conclusion is consistent with our holding in National Medical Enterprises, Inc. v. Godbey, that ‘[an] attorney’s knowledge is imputed by law to every other attorney in the firm.’ ” Id. (citing 924 S.W.2d 123, 131 (Tex.1996)).
I am also troubled by the apparent difference in grounds for disqualification between district and county court judges, on the one hand, and appellate justices on the other. If there is a logical explanation, it has eluded me. I can perceive no reason why the grounds for disqualification should not be the same.
Finally, I am troubled that the supreme court has not set forth a procedure that would allow a neutral judge or judges to determine whether a court-of-appeals justice is disqualified. If avoiding the appearance of impropriety is as important a public policy as we say it is, it only makes sense to me for the supreme court to establish a procedure in which a court-of-*603appeals justice must either (1) disqualify herself or himself or (2) refer the matter for determination. The supreme court could promulgate rules allowing referral of the disqualification matter to a judge or judges who do not serve on the court of appeals in question. Such a procedure would ensure that the process for determining disqualification not only be legally correct, but also appear impartial to the parties, their lawyers, and the general public.