dissenting.
To hold that a hearing and ruling by another judge on a motion to recuse is subject to the harmless error rule on appeal renders the rule and the statute meaningless. If there is harmful error in the case, then the ease will be reversed anyway, whether an assigned judge heard the motion to recuse or not. Therefore, why should the trial judge who is asked to recuse ever ask a presiding judge to assign a visiting judge to hear the motion for recusal?
I dissent because I believe that the rule requiring the assignment of another judge to hear a recusal motion is mandatory. The legislative history of this statute reflects that the Legislature did not intend for this provision to be optional with the judge. The Interim Report of the Judiciary Committee of the House of Representatives, 65th Legislature, is quoted by the Texas Supreme Court in McLeod v. Harris9 and by the dissent in McClenan v. State.10 The report said,
It is probably asking too much of judicial impartiality to expect a judge to rule objectively on a motion that he disqualify himself from a ease for cause if he has not already recused himself voluntarily.... A judge should not be placed in the position or be given the opportunity to rule in such cases.
The Texas Supreme Court in McLeod11 found that the duty to have an assigned judge hear any motion to recuse is mandatory and found that a mandamus would issue for the failure to comply with this statute. This Court recently held in Ross v. State12 that such a proceeding is mandatory and abated the case for a hearing on the motion to recuse.
*927The requirement that the assignment of a judge to hear a recusal motion is, however, statutory and applies to both civil and criminal cases.13 I recognize the Court of Criminal Appeals’ holding in McClencm14 provides for the harm analysis in this situation, but I urge a reconsideration of the majority view in that case. In the present case, Stafford has contended that the trial judge was biased because that judge had been the victim in a pending, retaliation case. Victims are often disqualified from jury service if that experience would affect their consideration of the case. Stafford was entitled to a hearing before an assigned judge on that issue.
I dissent because I believe this matter should be returned to the trial court for a hearing on the motion to recuse.
. 582 S.W.2d 772 (Tex.1979).
. 661 S.W.2d 108, 109 (Tex.Crim.App.1983).
. 582 S.W.2d 772.
.947 S.W.2d 672 (Tex.App.—Texarkana, 1997) (order of abatement).
. Tex. Gov’t Code Ann. § 74.059(3) (Vernon Supp.1997)
. 661 S.W.2d at 109.