concurring.
I concur with the court’s opinion and judgment, but write separately1 to respond to Justice Spears’ concurring opinion wherein he presumes bias from the mere fact that a familial relationship exists between the trial judge and both an attorney and certain parties to this case. Under current law and the law at the time the case was tried, Judge Wilborn was not precluded from presiding in this case. He was certainly not disqualified nor was he necessarily required to recuse himself. Disqualification and recusal are not synonymous; the former is based on the constitution and the latter is based on statutes and rules. See Kilgarlin & Bruch, Disqualification and Recusal of Judges, 17 St. Mary’s L.J. 599 (1986) [hereinafter Kil-garlin],
The only grounds for judicial disqualification are enumerated in Tex. Const, art. V, § 11. Taylor v. Williams, 26 Tex. 583 (Tex.1863); Love v. Wilcox, 119 Tex. 256, 28 S.W.2d 515 (1930). See also Calvert, Disqualification of Judges, 47 Tex. B.J. 1330, 1337 (1984). The constitution provides for disqualification when a judge is related to a party in a case within a degree prescribed by law. The legislature has fixed that relationship as being within the third degree of affinity or consanguinity. Tex. Gov’t Code Ann. § 21.005 (Vernon 1988).
Judge Wilborn was related to the plaintiffs in this case by the fourth degree of consanguinity; he could therefore hear this case and remain within statutory and constitutional parameters. Granted, Judge Wilborn was a first cousin of one of the plaintiffs’ attorneys, but the attorney was not a “party” for purposes of disqualification.2 See Winston v. Masterson, 87 Tex. 200, 27 S.W. 768 (Tex.1894); see also Kilgarlin, at 606; but cf. Indemnity Ins. Co. of North America v. McGee, 163 Tex. 412, 356 S.W.2d 666 (1962) (workers’ compensation exception to the rule that an attorney is not a party).
Justice Spears states that Judge Wilborn should have recused himself. The basis for this attack on the trial judge’s impartiality is Judge Wilborn’s “favorable relief granted.” At 206. Significantly, the court of appeals affirmed that judgment, stating “[b]ased on the circumstances presented to it, the trial court could reasonably have concluded that Sun had expressly disclaimed any interest in further developing the lease outside the Oyster Bayou Field.” 715 S.W.2d at 206. Are we now to question the impartiality of the chief justice of that court who authored its opinion, or the two other justices of that court who joined with him to make the opinion unanimous?
Further, Judge Wilborn’s conduct did not expressly contravene the Code of Judicial Conduct as it existed at all times pertinent to this trial. It is quite obvious that in adopting the Code of Judicial Conduct, we made a conscious decision that judges would not be recused solely because of *208their relationship to attorneys in the lawsuit.
Justice Spears chastizes the trial judge, writing, “Judge Wilborn should have re-cused himself because the familial relationships cast a reasonable doubt on his impartiality.” At 206. For support, however, he footnotes a suggested rule change which will not take effect, if it takes effect at all, until 1990. At 206, n. 1. Unless Judge Wilborn is expected to be a soothsayer, he should not have to anticipate the future and abide by rules which have not been adopted.
Also, Justice Spears makes unauthorized findings of fact that “Sun did not know of the trial judge’s relationship with the Jack-sons and their attorney ...” and that “there was nothing to put Sun on inquiry as to the relationship.” At 3. The evidence developed in the record, however, would also support the position of the Jack-sons. After an almost fifty-year relationship between Sun Oil and the Jacksons in a county as small as Chambers, it is doubtful that Sun Oil did not know of the kinship of Guy C. Jackson, III, a former Chambers County judge, and his cousin, district judge and former district attorney, Carroll E. Wil-born.
The Jacksons contend that the recusal issue has been waived because Sun Oil failed to comply with Tex.R.Civ.P. 18a, which provides that motions for recusal may be filed at least ten days before trial. This rule does not apply because there is an allegation of after-acquired knowledge of facts or relationships that, if known before trial, would have given rise to a motion for recusal.3 In cases where knowledge is not acquired until after trial, an appellate court should be able to determine if the trial judge through his rulings and conduct has displayed favoritism. It is true that many decisions are entrusted to the sound discretion of the trial judge. While individual trial court rulings may not constitute reversible error, an appellate court can nevertheless perceive from the record whether a clear pattern of favoritism emerges. In such instances, the appellate court should have the right to reverse and remand because of bias evident in the record or to affirm because, in spite of the questioned relationship, the record manifests no bias on the part of the trial judge. Another avenue available to appellate courts is to abate the appeal while a hearing is conducted on recusal. The judge assigned to hear the recusal motion will decide whether the trial judge was biased or prejudiced within the meaning of Tex.R.Civ.P. 18b(2), and such ruling could be assigned as an additional ground of appeal.
To unequivocally conclude that Judge Wilborn violated his oath of office because his first cousin had signed pleadings, but did not otherwise participate in the trial of the ease, does a disservice to a valued member of the Texas judiciary. It is just as likely that in a county of relatively few lawyers, where the Jackson elan is well known, and indeed unique, it never occurred to Judge Wilborn that anyone who had spent any time at all in Anahuac would not know that he was related to Guy C. Jackson, III. It may have been for this reason, and not any nefarious desire to tilt the scales in favor of his relative, that Judge Wilborn did not reveal his familial relationships.
In summary, Judge Wilborn is not disqualified to preside in this case. Justice Spears concludes that Judge Wilborn should have recused himself. Our decision today, however, requires a remand, at which time the parties may fully develop the record if they so choose. We should let the process continue and not prejudge this issue.’
DOGGETT, J., joins in this concurring opinion.
. Much of this opinion was originally drafted by former Justice William Kilgarlin. Justice Kil-garlin -left the court prior to our ruling on the motion for rehearing. Because of my agreement with much of what he said, I have adopted substantial portions of his concurrence as my own.
. The legislature has recently enacted an amendment to the Government Code which provides that an attorney may not appear before judges who are related by affinity or consanguinity within the first degree. Tex. Gov’t Code § 82.066, Ch. 866, § 4, 1989 Tex.Sess. Law Serv. 3857 (Vernon). Judge Wilborn is a second degree relative of the attorney in this case, and under this new statute, the attorney can properly appear before the judge.
. The Texas Rules of Civil Procedure do not provide for situations where knowledge of familial relationships is acquired after trial begins. Tex.R.Civ.P. 18a(a) should be made comparable to Tex.R.App.P. 15(a) which allows a motion for recusal to be filed late “if the motion is grounded upon reasons not known” and "upon a showing of good cause.”