       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-04-00302-CR



                                     Michael Gee, Appellant

                                                 v.

                                  The State of Texas, Appellee




 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT
        NO. 99-871-K277, HONORABLE KEN ANDERSON, JUDGE PRESIDING



                            MEMORANDUM OPINION


               In February 2000, appellant Michael Gee pleaded guilty to assaulting a public servant.

See Tex. Pen. Code Ann. § 22.01(a)(1), (b)(1) (West Supp. 2004-05). As called for in a plea bargain,

the court deferred adjudication and placed appellant on community supervision for six years. In

April 2004, the court granted the State’s motion to adjudicate, adjudged appellant guilty, and

sentenced him to five years’ imprisonment. In his only point of error, appellant contends that the

Honorable Ken Anderson was disqualified from sitting in this cause because he had been the elected

district attorney when this cause arose, adjudication was deferred, and the motion to adjudicate was

filed.1 We will affirm the judgment.




   1
     This is an issue unrelated to the conviction. See Vidaurri v. State, 49 S.W.3d 880, 885 (Tex.
Crim. App. 2001); Kahookele v. State, No. 03-04-00493-CR, 2005 Tex. App. LEXIS 3580, at *8
(Tex. App.—Austin May 12, 2005, pet. filed).
               No judge may sit in a case in which he has been counsel. Tex. Const. art. V, § 11;

Tex. Code Crim. Proc. Ann. art. 30.01 (West Supp. 2004-05). These provisions have been held to

be mandatory and the disqualification deemed unwaivable. Gamez v. State, 737 S.W.2d 315, 318

(Tex. Crim. App. 1987). As applied to former prosecutors, however, a judge is disqualified only if

the record affirmatively shows that he actively participated in the case before him while a

prosecutor. Id. at 319. The mere fact that a judge was district attorney while the case was pending

does not work as a disqualification if he had noting to do with the prosecution. Id. This has been

the rule for over a century. See Utzman v. State, 24 S.W. 412 (Tex. Crim. App. 1893). In re K.E.M.,

89 S.W.3d 814, 828-29 (Tex. App.—Corpus Christi 2002, no pet.), cited by appellant, was a juvenile

case governed by the rules of civil procedure, as the court of appeals took pains to point out.

               Appellant does not allege that Judge Anderson actively participated in this case while

serving as district attorney. Finding no basis in the record for concluding that the judge was

disqualified, we overrule the point of error.

               The judgment of conviction is affirmed.




                                                __________________________________________

                                                Bob Pemberton, Justice

Before Justices B. A. Smith, Puryear and Pemberton

Affirmed

Filed: July 13, 2005

Do Not Publish

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