












 
 
 
 
 
 
                                   NUMBER 13-01-865-CV
 
                             COURT OF APPEALS
 
                   THIRTEENTH DISTRICT OF TEXAS
 
                                CORPUS CHRISTI
 

 
                         IN
THE MATTER OF K.E.M., JUVENILE
 

 
                   On appeal from the County Court at Law No. 5
                                  of Nueces
County, Texas.
 
 

                                   O P I N I O N
 
        Before Chief Justice Valdez
and Justices Rodriguez and Castillo
                                  Opinion by Justice Castillo




Appellant K.E.M. appeals denial of his application for writ of
habeas corpus in which he sought release from an indeterminate commitment for
attempted sexual assault, not to exceed appellant=s twenty-first birthday, to the Texas
Youth Commission.  Although not raised as
an issue on appeal in appellant's brief, we find that the record presents a
serious question of whether the juvenile court judge who presided over the
habeas corpus proceeding was disqualified by reason of having served as counsel
for the State in the underlying juvenile adjudication in his capacity as Nueces
County Attorney.[1]  We reverse and remand.  
We first examine the record, then discuss judicial
disqualification as a jurisdictional issue and the circumstances that require
our consideration of unassigned error. 
We find no direct precedent to guide our analysis of the standards we
must apply to judicial disqualification in a juvenile adjudication.  Hence, we survey the substantive law of
judicial disqualification by reference to the available jurisprudence suggested
by four sources of judicial disqualification standards: (1) Article V,
Section 11 of the Constitution of the State of Texas;[2]
(2) Rule 18b(1)(a) of the Texas Rules of Civil Procedure;[3]
(3) Article 30.01 of the Texas Code of Criminal Procedure;[4]
and (4) Canon 2A of the Texas Code of Judicial Conduct.[5]  
                                                   I.  THE RECORD




The court at issue is a statutory county court with
jurisdiction over juvenile proceedings under title 3 of the family code.  Tex.
Gov=t Code Ann. ' 25.1802(r)(1)
(Vernon Supp. 2002).  We take judicial
notice that the current presiding judge of that court took the bench on October
1, 1999 and that before then he had held the office of Nueces County Attorney
since 1993.[6]  
Texas law defines the duties of county attorneys:
The county attorney shall attend the terms of court in his
county below the grade of district court, and shall represent the State in all
criminal cases under examination or prosecution in said county; and in the
absence of the district attorney he shall represent the State alone and, when
requested, shall aid the district attorney in the prosecution of any case in
behalf of the State in the district court. 
He shall represent the State in cases he has prosecuted which are
appealed.  
 
Tex. Code. Crim. Proc. Ann. art. 2.02 (Vernon
Supp. 2002).[7]  




Accordingly, the presiding judge of the juvenile court below
was representing the State of Texas in his capacity as Nueces County Attorney
on October 28, 1997, the date appellant=s mother reported to authorities her
suspicions that appellant had sexually assaulted a younger brother.  Child Protective Services and the Corpus
Christi Police Department initiated an investigation.  The State of Texas filed its AOriginal
Petition for Adjudication@ against
appellant, at the time thirteen years old, on December 11, 1997.  The signature block on the original petition
filed by the State of Texas shows the juvenile court judge=s printed name
and identification as Nueces County Attorney and is signed by an assistant
county attorney.  On December 18, 1997
and again on December 22, 1997, that same assistant county attorney signed
a ANotice of Setting@ as AAttorney for
State.@  She also signed the AState=s First Amended
Petition for Adjudication@ filed on
January 13, 1998, in a signature block identical to the one printed on the
original petition.  The signature of the
then-Nueces County Attorney does not appear on any documents in the
record.  
On January 14, 1998, the State and appellant reached a
plea bargain agreement, and appellant pled Atrue@ to attempted
sexual assault.  On that same date, the
then-presiding judge approved and adopted the recommendations of a juvenile
referee judge and committed appellant Ato the Texas
Youth Commission for an indeterminate period of time not to exceed the time
when he will be 21 years of age.@




Thus, during the pendency of appellant=s juvenile
adjudication proceedings, from initiation of the investigation in October of
1997 through adjudication in January of 1998, the presiding judge of the
juvenile court below served as the Nueces County Attorney.  By October 18, 1999, when appellant filed an
initial application for writ of habeas corpus, the former Nueces County
Attorney was the presiding judge of the juvenile court in which appellant filed
the application.  The juvenile court
judge denied the first application without a hearing on November 16, 1999.  On January 14, 2000, the judge signed an
order denying appellant=s second
application for writ of habeas corpus, filed on December 9, 1999, also
without a hearing.  On January 14, 2000,
a visiting judge, sitting for a Nueces County district court, denied appellant=s third
application for writ of habeas corpus.[8]  On February 7, 2001, appellant filed a fourth
application for writ of habeas corpus, again in the juvenile court below in
which the judge presides.  On
August 3, 2001, the judge held an evidentiary hearing on the fourth
application and on September 11, 2001, issued AFindings of Fact and Conclusions of Law
and Order@ denying
appellant=s fourth
application.[9]  This appeal ensued.  
              II.  JUDICIAL DISQUALIFICATION AS A JURISDICTIONAL
ISSUE
In both criminal and civil cases, a judge=s
disqualification arising from a constitutional or statutory provision Aaffects
jurisdiction@ and renders
the proceeding a nullity.  Davis v.
State, 956 S.W.2d 555, 558 (Tex. Crim. App. 1997); Lopez v. State,
57 S.W.3d 625, 627‑28 (Tex. App.BCorpus Christi
2001, pet. ref=d); see  Buckholts Indep. Sch. Dist. v. Glaser,
632 S.W.2d 146, 148 (Tex. 1982) (citations omitted) (AThe constitutional
prohibition has long been held to make any order involving judicial discretion
by a constitutionally disqualified judge >absolutely void,= >a nullity.=@).  It follows that a criminal conviction is
void if the judge was constitutionally or statutorily disqualified.  Ex parte Vivier, 699 S.W.2d 862, 863-64
(Tex. Crim. App. 1985) (per curiam); Lopez, 57 S.W.3d at 628.  




Further, even if the parties consent, there can be no waiver of
constitutional or statutory disqualification provisions.  Ex parte Vivier, 699 S.W.2d at 863; Lee
v. State, 555 S.W.2d 121, 124 (Tex. Crim. App. 1977); see Buckholts,
632 S.W.2d at 148) (A[D]isregard of the
constitutional disqualification is error that can be raised at any point in the
proceeding@).  Therefore, we consider the issue of
judicial disqualification in this case as unassigned error.  
                                            III.  UNASSIGNED ERROR
The court of criminal appeals has
considered as unassigned error the question of a judge=s
disqualification to preside over the trial of a criminal defendant because of
the judge=s participation
in the prosecution of the case as counsel for the State.  Lee, 555 S.W.2d at 122; see Leal
v. State, 626 S.W.2d 866, 867 (Tex. App.BCorpus Christi 1981, no pet.) (reversing
and remanding on an unassigned error in a fatal variance between the indictment
and the charge).  Moreover, an appellate
court may raise a judicial disqualification issue on its own motion.  McElwee v. McElwee, 911 S.W.2d 182,
186 (Tex. App.BHouston [1st
Dist.] 1995, writ denied).  Thus, on this
Court=s own motion,
we consider the question of the juvenile court judge=s
disqualification.   
In view of our disposition of this unassigned error, it is not
necessary that we address appellant=s issue on
appeal that the juvenile court abused its discretion in holding that appellant=s proof of
recantation failed to demonstrate by clear and convincing evidence that
appellant was entitled to relief.  See
Gonzalez v. State, 588 S.W.2d 574, 575 (Tex. Crim. App. [Panel Op.] 1979) (A[W]e find an
unassigned error which should be reviewed in the interest of justice that is
dispositive of the appeal and, accordingly, do not directly address the ground
of error that is advanced.@).  




The question we face is whether the juvenile court judge who
presided over the habeas corpus proceeding in this case was disqualified under
Texas law by reason of having held the office of Nueces County Attorney when
the underlying juvenile case was investigated and prosecuted by that
office.  To answer this question, we
survey the substantive law of judicial disqualification.  
                          IV.  THE LAW OF JUDICIAL DISQUALIFICATION
                                         A.
 The Policy Considerations
All judges have the duty to sit and decide matters before them
unless a basis exists for disqualification or recusal.[10]  Monroe v. Blackmon, 946 S.W.2d 533,
536 (Tex. App.BCorpus Christi
1997, orig. proceeding) (citing Rogers v. Bradley, 909 S.W.2d 872, 879
(Tex. 1995) (Enoch, J., concurring)). 
Judges have as much of an obligation not to step down from a case when
there is no reason to do so as they have to do so when there is a reason.   Rogers, 909 S.W.2d at 879 (Enoch, J.,
concurring); Kirby v. Chapman, 917 S.W.2d 902, 909 (Tex. App.BFort Worth
1996, no writ).  However, a judge also
must avoid the appearance of impropriety. 
Tex. Code Jud. Conduct,
Canon 2, reprinted in Tex. Gov=t Code Ann., tit. 2, subtit. G app. B (Vernon 1998).  In the context of judicial disqualification, Aavoiding the
appearance of impropriety@ means that the
judge must comply with the law applicable to judicial disqualification and act Ain a manner
that promotes public confidence in the integrity and impartiality of the
judiciary.@  Id.  





                         B.  Article V, Section 11 of the Texas
Constitution
Our starting point for analyzing the standards for judicial
disqualification in both criminal and civil cases is the Texas Constitution:
No judge shall
sit in any case wherein the judge may be interested, or where either of the
parties may be connected with the judge, either by affinity or consanguinity,
within such a degree as may be prescribed by law, or when the judge shall have
been counsel in the case.    
 
Tex. Const. art. V, ' 11; see Ex parte Washington,
442 S.W.2d 391, 392-93 (Tex. Crim. App. 1969) (holding that a criminal court
judge is constitutionally disqualified if the judge is related to a party or
prosecuted the same case before); see also Zarate v. Sun
Operating Ltd., Inc., 40 S.W.3d 617, 623 (Tex. App.B San Antonio 2001,
pet. denied) (holding that a judge who had represented a receiver in the case
had not been Acounsel in the case@ because the receiver
was not a party to the lawsuit and had no interest in the litigation).       The Acounsel in the
case@ requirement in
article V, section 11 as applied to criminal cases came under early
scrutiny.  Johnson v. State, 29
Tex. Ct. App. 526, 526-27, 16 S.W. 418, 418 (1891).  The court of appeals disqualified a district
judge who, while acting as a private prosecuting attorney, prosecuted the
defendant in a simple assault case before a justice of the peace.  Id. 
The same defendant was then indicted for felony aggravated assault, and
the case was filed in the district court in which the former prosecutor was
presiding judge.  Id.  In disqualifying the judge, the Johnson
court focused on the fact that the aggravated assault case arose out of the
same facts as the simple assault case handled by the former prosecutor.  Id. 




Further, Texas law long has held that the mere fact that a
trial judge had been an assistant prosecutor at the time the alleged offenses
arose or were filed does not mean that the former assistant prosecutor had
acted as Acounsel in the
case.@  Prince v. State,  252 S.W.2d 945, 946 (Tex. Crim. App.
1952).  If, on the other hand, the judge
participated in any manner in the preparation or investigation of the case as
an assistant prosecutor, the judge would be considered Acounsel in the
case.@  Id.
Thus, as applied in criminal cases, the prohibition found in
article V, section 11 against a judge hearing a case in which the judge
had acted as a prosecutor requires that the judge had participated in the very
case at issue.  The court of criminal
appeals underscored this requirement in Holifield v. State, 538 S.W.2d
123, 125 (Tex. Crim. App. 1976).  The Holifield
court noted that the record in the case showed that the judge had been the
district attorney in Randall County, where two cases were pending against
appellant, one in district court and another in county court.  Id. 
At the time of the trial in Potter County of the case under appeal, the
Randall County district court case had been dismissed, and the county court
case was still pending.  Id.  
The evidence in Holifield showed that the judge had not
participated in the prosecution of the Potter County case.  Id. 
Reasoning that the judge=s participation
in the Randall County prosecutions did not make the judge Acounsel in the
case@ with regard to
the Potter County prosecution, the court held that the judge was not subject to
disqualification under either article V, section 11 or the criminal
procedure rule then in effect.  Tex. Const. art. V, ' 11; Holifield,
538 S.W.2d at 125.  




In addition to interpreting the Acounsel in the case@ requirement as
applicable to any case that arises out of the same set of operative facts, the
court of criminal appeals in another early case read into article V, section 11
an implicit temporal component.  Tex. Const. art. V, ' 11; Utzman
v. State, 24 S.W. 412, 412 (Tex. Crim. App. 1893).  The court noted that the judge was in office
as district attorney when the alleged offense was committed but had nothing to
do with the prosecution of the case, either in examining the witnesses or
preparing the complaint or indictment, because he had resigned his position
before an indictment was presented.  Id. 

We turn next to the judicial disqualification standards in the
rules of civil procedure.  
                                  C.  The Texas Rules of Civil Procedure
Rule 18b of the rules of civil procedure recites in relevant
part the following grounds for disqualification of judges:
Judges shall
disqualify themselves in all proceedings in which:
 
(a)  they have served as
a lawyer in the matter in controversy, or a lawyer with whom they previously
practiced law served during such association as a lawyer concerning the matter.
. . .
 
Tex. R. Civ. P. 18b(1)(a).  The Texas Family Code governs juvenile
proceedings and requires that they be conducted under the rules of civil
procedure, except as to discovery, and under the rules of evidence applicable
to criminal proceedings.  Tex. Fam. Code '  51.17 (Vernon 2002); In re R.J.H., 79
S.W.3d 1, 6 (Tex. 2002).[11]





The provisions of rule 18b apply an objective standard and are
mandatory.  See Monroe, 946 S.W.2d
at 536 (A[W]hen there
exists a reasonable question -- based on objective facts -- as to a judge's
impartiality, recusal is mandated.@); see also
Rogers, 909 S.W.2d at 879 (Enoch, J., concurring) (suggesting that the
proper inquiry under the recusal provisions of rule 18b(2)(a) is whether a
reasonable member of the public at large, knowing all the facts in the public
domain concerning the judge=s conduct,
would have a reasonable doubt that the judge is actually impartial).
Moreover, by its own terms, rule 18b(1)(a) applies not
only to a judge who personally Aserved as a
lawyer in the matter in controversy@ but also to a
judge who Apracticed law@ with another
lawyer who Aserved during
such association as a lawyer concerning the matter.@  Tex.
R. Civ. P. 18b(1)(a).  Accordingly, rule
18b(1)(a) as applied in civil cases Arecognizes 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.@  In re O=Connor, 45 Sup. Ct.
J. 970, 2002 Tex. LEXIS 108, 2002 WL 1379069 (June 27, 2002) (orig.
proceeding) (per curiam) (not yet released for publication in the permanent law
reports).  




The supreme court in In re O=Connor held that a
judge whose law partner had represented one of the parties in a divorce case
was constitutionally disqualified under rule 18b(1)(a) from presiding over a
later modification proceeding.  Tex.
Const.
art. V, ' 11; Tex. R. Civ. P. 18b(1)(a); In re O=Connor, 45 Sup. Ct.
J. 970.  Other jurisdictions also apply
this knowledge-by-association imputation standard to judicial
disqualifications.  For example, we note
that the general federal judicial disqualification statute requires that any
judge of the United States Ashall
disqualify himself in any proceeding in which his impartiality might reasonably
be questioned.@  28 U.S.C. ' 455(a) (2002).  More specifically, however,
section 455(b) requires that the judge Ashall also disqualify himself@ in any
proceeding where Ahe has served
in governmental employment and in such capacity participated as counsel,
adviser or material witness or expressed an opinion concerning the merits of
the particular case in controversy.@  28 U.S.C. ' 
455(b)(3) (2002).[12]  
Despite the apparent limitation of this language in section
455(b)(3), the Ninth Circuit noted, in a case involving a former United States
Attorney for Arizona who was




appointed
as a federal district judge in the same jurisdiction, that the statutory duty
of each United States Attorney within the district was to Aprosecute for
all offenses against the United States.@ United
States v. Arnpriester, 37 F.3d 466, 467 (9th Cir. 1994).  The Arnpriester court went on to find
that the United States Attorney in the district necessarily was responsible for
investigation and that there could be no prosecution unless it is preceded by
investigation.  Id.  Concluding that other attorneys serve only as
assistants to the United States Attorney, the Ninth Circuit held that the
attorney responsible for the investigation of a person suspected of violating
the laws of the United States reasonably would be believed not to be impartial
when that person was subsequently indicted, tried, and convicted.  Id. 
AThis analysis
imputes to the United States Attorney the knowledge and acts of his assistants,@ the court
reasoned:
Such Avertical
imputation@ to the head of
the office is what is done by the criminal statute governing employment of a
former government employee in any matter Awhich was under
his official responsibility,@ 18 U.S.C.
' 207(a).  It is the standard adopted in two of the
leading cases on disqualification of a former government lawyer acting for a
private client in a matter in which he had official responsibility, General
Motors Corp. v. City of New York, 501 F.2d 639 (2d Cir. 1974); United
States v. Standard Oil Co., 136 F. Supp. 345 (S.D.N.Y. 1955); see
Andrew I. Kaufman, Problems In Professional Responsibility (1976) 59.
What disqualifies a former government prosecutor from acting for a private
client in the same matter for which he had official responsibility operates
equally to disqualify him from sitting as a judge in the same matter.  A United States District Judge cannot
adjudicate a case that he or she as United States Attorney began.
 




Id.  Similarly, where a district attorney signed a
bill of indictment and also was responsible in a supervisory capacity for the
prosecution of the charge against the defendant, the Pennsylvania Supreme Court
held that the district attorney, on taking the bench, was disqualified from
presiding over habeas corpus proceedings brought by the defendant.  Com. ex rel. Allen v. Rundle, 189 A.2d
261, 262 (Pa. 1963).  The Rundle
court accordingly reversed an order entered by the former district attorney
denying the petition for a writ of habeas corpus.  Id. 
Although noting that the record was entirely free from the slightest
suggestion of prejudice or impropriety on the part of the judge, the court
reasoned that it was desirable to have the habeas corpus petition heard by a
judge who had no previous association with either the prosecution or the
defense in the trial of the case.  Id.
We note that the vicarious judicial disqualification standard
incorporated into rule 18b(1)(a) is consistent with a conclusive,
irrebuttable presumption, long recognized in Texas, that imputes knowledge of
client confidences to all associated lawyers. 
In re O=Connor, 45 Sup. Ct.
J. 970; Petroleum Wholesale, Inc. v. Marshall, 751 S.W.2d 295, 301 (Tex.
App.BDallas 1988,
orig. proceeding); see Tex.
Disciplinary R. Prof=l Conduct 1.06(f), reprinted
in Tex. Gov=t Code Ann., tit. 2, subtit. G app. A (Vernon 1998) (vicarious
attorney disqualification in conflicts of interest between concurrent clients);
Tex. Disciplinary R. Prof=l Conduct 1.09(b), reprinted in Tex.
Gov=t Code Ann., tit. 2, subtit. G app. A (Vernon 1998) (vicarious
attorney disqualification in conflicts of interest between former and current
clients); Tex. Disciplinary R. Prof=l Conduct 1.10(b), reprinted in Tex.
Gov=t Code Ann., tit. 2, subtit. G app. A (Vernon 1998) (vicarious
attorney disqualification in conflicts of interest in successive government and
private employment).  




Moreover, vertical vicarious judicial disqualification of the
former head of an office comports with the duties imposed in Texas on
supervisory lawyers by the rules of disciplinary conduct.  See Tex.
Disciplinary R. Prof=l Conduct 5.01, reprinted
in Tex. Gov=t Code Ann., tit. 2, subtit. G app. A (Vernon 1998) (entitled AResponsibilities
of a Partner or Supervising Lawyer@).  Under rule 5.01(b), supervisory attorneys have an
ethical duty to take reasonable remedial action to avoid or mitigate the
consequences of known misconduct by the lawyers they supervise.  Id. 
Comment 2 to rule 5.01 explains that Athe general counsel of a government agency=s legal department, or
a lawyer having direct supervisory authority over specific legal work by
another lawyer, occupies the position of authority contemplated by
Rule 5.01(b).@  Tex. Disciplinary
R. Prof=l Conduct 5.01 cmt. 2, reprinted in Tex. Gov=t Code Ann., tit. 2,
subtit. G app. A (Vernon 1998).  The court of criminal
appeals has acknowledged that this supervisory function is imposed on a head
prosecutor by the nature of the position: 
AA district
attorney, unlike an assistant, is the person in authority in the office, and he
cannot as such officer escape his duties and responsibilities. . . .@  Hathorne v. State, 459 S.W.2d
826, 829 (Tex. Crim. App. 1970) (op. on reh=g). 

Appellant cites this Court to a federal habeas corpus case out
of Texas, Bradshaw v. McCotter, 796 F.2d 100 (5th Cir. 1986) (op. on reh=g) (@Bradshaw II@), in support
of the proposition that disqualification of the juvenile court judge below is
required in this case because of an appearance of impropriety created by
inclusion on the pleadings of the name and title of the former Nueces County
Attorney.  The opinion appellant
apparently relies on is Bradshaw v. McCotter, 785 F.2d 1327 (5th
Cir. 1986) (@Bradshaw I@), the result of which
was modified by Bradshaw II.  




Originally, the Fifth Circuit held that the due process clause of the
Fourteenth Amendment required a judge of the Texas Court of Criminal Appeals to
disqualify himself because he had been the State's prosecuting attorney at the
time of the petitioner's conviction.  Bradshaw I, 785 F.2d at
1329.  The name of the former State
prosecutor had appeared on the State's appellate brief, but he had not
participated in the prosecution Ain any fashion
whatsoever.@  Id. 
His name had been added to the brief only Aas a matter of courtesy and protocol@ by the local
prosecutor who had prepared it.  Id.  Bradshaw I  ordered federal habeas corpus relief.  Id. 
On rehearing, however, Bradshaw II denied habeas corpus relief,
holding that no due process violation was shown absent evidence that the
appellate judge=s vote was
controlling.  Bradshaw II, 796 F.2d at
101.   
The Fifth Circuit decided both Bradshaw I and Bradshaw
II  without reference to judicial
disqualification standards applicable to criminal cases in Texas.  Bradshaw II, 796 F.2d at
101; Bradshaw I, 785 F.2d at 1329.[13]  This Court, however, must be mindful that
juvenile cases, while civil in nature, are quasi-criminal.  See In re C.O.S., 988 S.W.2d
760, 765 (Tex. 1999) (holding that the general civil rules requiring
preservation of error in the trial court Acannot be
applied across the board in juvenile proceedings.@); see also In re M.S., 985 S.W.2d
278, 280 (Tex. App.BCorpus Christi
1999, no pet.) (applying rules regarding restitution in criminal cases to a
juvenile case).  Hence, we turn our
analysis to the judicial disqualification standards applicable to criminal
cases in Texas.  
                               D.  The Texas Code of Criminal Procedure
Article 30.01 of the code of criminal procedure recites:




No judge or justice of the peace shall sit in any case where he
may be the party injured, or where he has been of counsel for the State or the
accused, or where the accused or the party injured may be connected with him by
consanguinity or affinity within the third degree, as determined under Chapter
573, Government Code. 
 




Tex. Code. Crim. Proc. Ann. art. 30.01
(Vernon Supp. 2002); see State ex rel. Milsap v. Lazano, 692
S.W.2d 470, 474-483 (Tex. Crim. App. 1985) (orig. proceeding) (discussing
historical development of constitutional and statutory judicial
disqualification rules in Texas).  The
provisions of article 30.01 are mandatory. 
Ex parte Vivier, 699 S.W.2d at 863.  It is a denial of a person's right to judicial
impartiality in a criminal case to allow the state's attorney to later become
judge in the same case.  Ex parte
Miller, 696 S.W.2d 908, 910 (Tex. Crim. App. 1985).  An objective standard applies to judicial
disqualifications decided under article 30.01.  See Ex parte Vivier, 699 S.W.2d
at 863 (A[I]f we were to
hold that the existence or lack of knowledge was to be the determining factor
in resolving cases such as the one before us, appellate courts would then be
deciding cases based upon whether the judge subjectively knew of his relation
to a defendant on a case by case basis. The possibility of creating an image to
the public of judicial impropriety would be inherent, whether it actually
existed or not.  For these reasons we
decline to hold that an Article 30.01 disqualification be based on the
subjective knowledge of the judge.@); see also
Crawford v. State, 686 So. 2d 199, 202 (Ala. Crim. App. 1996) (holding that
the objective fact of the judge=s prior office
as the district attorney for Mobile County at the time the appellant had been
investigated and indicted controlled over the judge=s subjective
denial of bias).[14]  
The court of criminal appeals has applied article 30.01 in a
number of factual circumstances.  Ex
parte Miller, 696 S.W.2d at 910; Lee, 555 S.W.2d at 124; Carter
v. State, 496 S.W.2d 603, 604 (Tex. Crim. App. 1973); Rodriguez v. State,
489 S.W.2d 121, 123 (Tex. Crim. App. 1972); Muro v. State, 387 S.W.2d
674, 676-77 (Tex. Crim. App. 1965).  We
find the court of criminal appeals= approaches in
these cases instructive in our determination of judicial disqualification
standards applicable to juvenile adjudications. 

In Lee, the court of criminal appeals found unassigned
error based on a letter written to the defense attorney by the trial judge
while acting as an assistant district attorney during plea negotiations in the
appellant's first trial.  Lee, 555
S.W.2d at 124.  The trial judge in Lee
was not the actual prosecutor assigned to the case and stated in the record
he had no independent recollection of the case or the letter's contents.  Nonetheless, the Lee court held that
the record indicated participation sufficient to disqualify the trial
judge.  Id. at 125.




In Ex parte Miller, the judge of the trial court
personally and actively participated as a prosecutor in the applicant's
conviction, a fact that was apparent from the record.  Ex parte Miller, 696 S.W.2d at
910.  Specifically, the trial judge's
signature as assistant district attorney appeared on an application for jury
waiver, a waiver of indictment and charge by information, a plea bargaining
agreement, an agreed motion to modify probation, and a motion to adjudicate
guilt.  Id.  The judge=s name also appeared on the docket sheet
as the State's attorney.  Id.  No other attorney's name was shown as a
representative of the State in the proceedings. 
Id.  Citing both
article V, section 11 of the Texas Constitution and article 30.01 of the
code of criminal procedure, the Ex parte Miller court concluded that the
trial judge had actively participated in applicant's trial as the State's
attorney, and his involvement disqualified him from presiding as judge in a
subsequent probation revocation hearing. 
Tex. Const. art. V, ' 11; Tex. Code. Crim. Proc. Ann. art. 30.01
(Vernon Supp. 2002); Miller, 696 S.W.2d at 910. 




          In
Carter, the court of criminal appeals held that a typewritten notation
on the docket sheet that the judge had been the prosecuting attorney on the
case was not enough to mandate the judge=s
disqualification.  The Carter court
Areasoned that
since there was no showing that the judge actually investigated, advised or
participated in that case in any way, he was not acting >as counsel= as
contemplated by@
article V, section 11 of the Texas Constitution or Aof counsel@ under article
30.01 of the code of criminal procedure. 
Tex. Const. art. V, ' 11; Tex. Code. Crim. Proc. Ann.
art. 30.01 (Vernon Supp. 2002); Carter, 496 S.W.2d at 604; see Gamez
v. State, 737 S.W.2d 315, 319 (Tex. Crim. App. 1987) (refusing to
disqualify a judge whose signature stamp as a prosecutor appeared on an
announcement of ready in the appellant=s case and who
had acted as a third-chair prosecutor, noting that arraignments for all the
district courts in that county had been held in one courtroom and could have
involved in excess of 100 cases at one time). 

Further, in Rodriguez, the court of criminal appeals
refused to disqualify a judge who was the first assistant criminal district
attorney in Bexar County at the time the appellant was alleged to have
committed the offense and at the time a complaint was filed.  Rodriguez, 489 S.W.2d at 123.  By the time the indictment was returned, the
judge was no longer a member of the district attorney's staff.  Id. 
He testified he had read the district attorney's file, and there was no
record he had actually participated in the case.  Id. 
The Rodriguez court held:
It is not shown
that the trial judge, even though he was the First Assistant to the Criminal
District Attorney and in charge of capital prosecutions, actually investigated,
advised or participated in this case in any way; it is therefore not shown that
he Aacted as
counsel in the case@ as
contemplated by the constitutional and statutory provisions relied upon.  
 
Id.




In Muro, the court of criminal appeals held that the
trial judge was not disqualified as a result of having served as an assistant
district attorney at the time of the offense since the former prosecutor had no
recollection of working on the case and, at the time the case was filed, had
been assigned to work only on capital cases and to act as legal advisor to the
commissioners court.  Muro, 387
S.W.2d at 676‑77. Because the case did not come within the purview of the
former prosecutor=s assignment as
assistant criminal district attorney, the court reasoned, he was not
disqualified to sit on the case as trial judge. 
Id.   
Also, it is well settled in Texas that the mere fact that the
trial judge personally prosecuted the defendant for past crimes does not
disqualify the judge from presiding over a trial where a new offense is
charged.  Hathorne, 459 S.W.2d at
829; see Madden v. State, 911 S.W.2d 236, 240 (Tex. App.BWaco 1995, pet.
ref=d) (holding
that a judge who had prosecuted the defendant in a previous case used for
enhancement purposes was not disqualified under article 30.01, noting that in
prior cases the fact that a trial judge had personally prosecuted or defended a
defendant in past cases did not disqualify him from presiding over a trial
where a new offense was charged); see also Dean v. State, 938
S.W.2d 764, 767 (Tex. App.BHouston [14th
Dist. 1997, no pet.) (AHere, the trial
judge prosecuted appellant in an earlier, unrelated case. Therefore, the
prohibition in article 30.01 does not apply.@).




In keeping with our own state court precedent and applying
Texas law, the Fifth Circuit rejected the contention that a defendant was
deprived of a fair and impartial trial because the judge who presided at his
pretrial hearing was a first assistant district attorney at the time of the
alleged commission of the offense.  Donald
v. Jones, 445 F.2d 601, 606 (5th Cir. 1971).  The judge testified he had not heard of the
defendant before taking the bench, and he did not participate in the
investigation of the case.  Id. at
607.  Consistent with the existence of an
implicit temporal component in judicial disqualification matters, the Fifth
Circuit focused on the fact that the defendant was not indicted on the offense
until eight months after the judge took the bench.  Id. 
Further, the Fifth Circuit noted that the judge had not presided over
the actual trial of the case.  Id.  Accordingly, the Donald court affirmed
the lower court=s judgment
denying an application by the defendant for a writ of habeas corpus.  Id. 

Similarly, in Sunday v. State, 755 S.W.2d 500 (Tex. App.BBeaumont 1988,
pet. ref=d), the
Beaumont court of appeals held that article 30.01 only barred a judge from
sitting in a case in which he personally had been counsel.  Id. at 501.  The court noted that the fact that the judge
had been a district attorney at the time of the defendant's prior murder
conviction did not disqualify him with respect to the defendant's trial for
robbery that occurred a year after the judge left the district attorney
position, nor did the use of the defendant's prior murder conviction to enhance
punishment in the robbery prosecution constitute grounds for
disqualification.  Id.  
Finally, as we note is the practice in other jurisdictions when
analyzing judicial disqualification issues, we turn to the code of judicial
conduct applicable to Texas judges.  
                                 E.  The Texas Code of Judicial Conduct
The Texas Code of Judicial Conduct currently provides:
Canon 2.      Avoiding Impropriety and the Appearance of Impropriety
In
All of the Judge=s Activities
 
A.  A judge shall comply
with the law and should act at all times in a manner that promotes public
confidence in the integrity and impartiality of the judiciary.  




Tex. Code Jud. Conduct, Canon 2A, reprinted in Tex. Gov=t Code Ann., tit. 2, subtit. G app. B (Vernon 1998).[15]  AThe Code of
Judicial Conduct does not exist for the benefit of the judiciary exclusively,
but rather for the community and the state as well.@  In re Sheppard, 815 S.W.2d 917, 921
(Tex. Spec. Ct. Rev. 1991).  




Citing the Alabama Canons of Judicial Ethics,[16]
the Alabama Court of Criminal Appeals in two separate cases disqualified a
judge who had served as the district attorney of Mobile County.  Crawford, 686 So. 2d at 202; Crumpton
v. State, 677 So. 2d 814, 816 (Ala. Crim. App. 1995).  The challenged judge stated that he neither
had  knowledge of nor any personal
involvement in the prosecutions, although the defendants in both cases had been
investigated and indicted during the judge=s tenure as
district attorney.  Crawford, 686
So. 2d at 202.  Nonetheless, the Alabama
Court of Criminal Appeals reversed both cases, stating in Crawford that:
Athe question is
not whether the judge is in fact impartial but whether another person >might
reasonably question the judge=s impartiality.=  In this case, that question can be answered
only in the affirmative.@  Id. at 203.[17]    




                 V.  APPLICATION OF THE LAW TO THE FACTS
We first conclude we must apply the provisions of article V,
section 11 of the Texas Constitution and rule 18b(1)(a) of the Texas Rules of
Civil Procedure to judicial disqualification proceedings in juvenile
adjudications.  Tex. Const. art. V, ' 11; Tex. R. Civ. P. 18b(1)(a); see Tex. Fam. Code '  51.17 (Vernon 2002) (establishing generally
that the rules of civil procedure apply to juvenile proceedings).  Thus, we apply Texas case law interpreting
rule 18b(1)(a) to the record before us.  Tex.
R. Civ. P.
18b(1)(a).  However, we
also are mindful, as we must be, of Texas authority interpreting article 30.01
of the code of criminal procedure and canon 2 of the code of judicial conduct.  Tex.
Code. Crim. Proc. Ann. art. 30.01 (Vernon Supp. 2002); Tex. Code Jud. Conduct, Canon 2A, reprinted in Tex. Gov=t Code Ann., tit. 2, subtit. G app. B (Vernon 1998).




With these parameters in mind, we hold that rule 18b(1)(a)
imposes an objective standard for judicial disqualification as applied to
juvenile adjudications that does not require any showing of actual bias, harm,
or prejudice.  Further, harmonizing the
various approaches discussed above by different courts in Texas as well as
interpretations of similar disqualification statutes in other jurisdictions, we
hold under rule 18b(1)(a) as applied to juvenile adjudications that the
grounds for constitutional disqualification from hearing a case of a judge who
was a former prosecutor are: (1) personal participation by the judge as
prosecutor in any way, however slight, in the investigation or prosecution of
the same case or of a case arising out of the same set of operative facts; or
(2) supervisory authority by the judge as prosecutor at the time the case was
investigated, prosecuted, or adjudicated over attorneys who actually
investigated or prosecuted the same case or a case arising out of the same set
of operative facts.  See State v.
Julien, 47 P.3d 1194, 1200 (Colo. 2002) (listing similar factors).[18]
The record before us indicates there is no dispute that the
juvenile court judge below was the Nueces County Attorney while his office
investigated and prosecuted appellant. 
As with the former Arizona United States Attorney-turned-federal judge
in Arnpriester and the former Mobile County district attorney in Crawford,
we find that the statutory duties of county attorneys and the responsibilities
imposed in general on supervisory lawyers in Texas combined to make the former
Nueces County Attorney-turned-judge here ultimately responsible for appellant=s
prosecution.  Arnpriester, 37 F.3d
at 467; Crawford, 686 So. 2d at 202. 





We emphasize that the record in this case is entirely free of
the slightest suggestion of prejudice or impropriety on the part of the
juvenile court judge.[19]  Rundle, 189 A.2d at 262.  Nonetheless, the duties and responsibilities
inherent in the office of Nueces County Attorney adhered to the juvenile court
judge when he left the prosecutorial bar and took the bench, and we cannot
escape the effect of those duties and responsibilities.  Hathorne, 459 S.W.2d at 829.  We find that disqualification of the juvenile
court judge below is mandated by the statutory duties and supervisory
responsibilities imposed by his former office as Nueces County Attorney, irrespective
of any direct, personal involvement on his part with the investigation or
prosecution of appellant=s juvenile
adjudication.  Arnpriester, 37
F.3d at 467; Crawford, 686 So. 2d at 202.[20]  AThe question is
not whether the judge is in fact impartial but whether another person >might
reasonably question the judge=s impartiality.=@  Crawford, 686 So. 2d at 202.  We can answer that question only in the
affirmative.  Id. at 203.  Thus, to promote public confidence in the
integrity and impartiality of the judiciary, we reason that it is desirable to
have appellant=s application
for writ of habeas corpus heard by a judge who has no previous association with
either the prosecution or the defense in the challenged adjudication.  Rundle, 189 A.2d at 262.  




Accordingly, we hold as a matter of law that the juvenile court
judge below has no jurisdiction to preside over appellant=s application
for writ of habeas corpus.  Buckholts,
632 S.W.2d at 148.  The juvenile court=s AFindings of
Fact and Conclusions of Law and Order@ dated
September 11, 2001, which denied appellant=s fourth
application for writ of habeas corpus, are void.  Ex parte Vivier, 699 S.W.2d at 863-64.

VI.  CONCLUSION
We reverse and remand with instructions that appellant=s application
for writ of habeas corpus proceed under the provisions of rule 18a of the rules
of civil procedure.[21]

 
ERRLINDA
CASTILLO
Justice
 
Publish.
Tex.
R. App. P.
47.3(b).
 
Opinion delivered and
filed
this 24th day of
October, 2002.
 




[1]
By a footnote in appellant=s
brief, appellant informed us: AWithout
asserting an impropriety, Counsel nevertheless believes it is noteworthy to
point out that [the juvenile court judge] . . . was the Prosecutor (County
Attorney) in charge of [K.E.M.=s]
prosecution for the attempted sexual assault.@  The State did not respond to appellant=s
note.  At submission of the case, we
requested briefing from the parties of the judicial disqualification issue
raised by this information.  Tex. R. App. P. 38.7.  This opinion follows our receipt of
additional briefing on the issue from appellant.  


[2]
Tex. Const. art. V, ' 11.  


[3]
Tex. R. Civ. P. 18b(1)(a).  


[4]
Tex. Code. Crim. Proc. Ann. art.
30.01 (Vernon Supp. 2002).  


[5]
Tex. Code Jud. Conduct, Canon 2A,
reprinted in Tex. Gov=t Code Ann., tit. 2,
subtit. G app. B (Vernon 1998).


[6]
See Hathorne v. State, 459 S.W.2d 826, 828 (Tex. Crim. App. 1970) (op.
on reh=g) (taking
judicial notice of the fact that a trial judge had been a district attorney at
the time of a previous trial); see also Strahan v. State, 221 S.W. 976,
977 (Tex. Crim. App. 1920) (taking judicial notice of a trial judge=s
tenure as district attorney and appointment to the bench).


[7]
We note that the prosecutorial functions of the Nueces County Attorney=s
office were consolidated with the Nueces County District Attorney=s
office in 1999 before the former Nueces County Attorney began his tenure as
presiding judge of the court at issue.  


[8]
Appellant=s third
application for writ of habeas corpus was the subject of an earlier appeal and
dismissal at the request of appellant.  


[9]
We also take judicial notice that the juvenile court judge, following his
initial appointment as presiding judge of the court at issue, was elected to
that bench in 2000 and is the current presiding judge of that court.  


[10]
Our holding in this case is limited to judicial disqualification in juvenile
adjudications and does not apply to recusal, either in juvenile adjudications
or any other context.  Compare Tex. R. Civ. P. 18b(1)(a)
(disqualification as a result of prior representation in the matter in
controversy) with Tex. R. Civ. P.
18b(2)(d) (recusal as a result of prior representation in the matter in
controversy); see Gulf Maritime Warehouse Co. v. Towers, 858 S.W.2d 556,
563 (Tex. App.BBeaumont 1993,
writ denied) (not reaching the recusal question of Afinancial
interest in the subject matter in controversy@
under rule 18b(2)(e) because of a finding of disqualification for Ainterest
in the subject matter in controversy@
under rule 18b(1)(b)).  


[11]
We also note that rule 18b has been applied to judicial recusal motions in
criminal cases.  Tex. R. Civ. P. 18b(2); see Vargas v. State , 883
S.W.2d 256, 259 (Tex. App.BCorpus
Christi 1994, pet. ref=d) (applying
the recusal provisions of rule 18b(2) to a challenge to an assigned Adrug
court@ judge).  Further, the court of criminal appeals has
applied the procedural requirements of rule 18a to criminal cases.  Tex.
R. Civ. P. 18a; Arnold v. State, 853 S.W.2d 543, 544 (Tex.
Crim. App. 1993).  


[12]
We note that section 455(b)(2) limits vicarious disqualification to federal
judges previously in private practice, as distinct from prior service in
government employment addressed by section 455(b)(3).  See 28 U.S.C. '  455(b)(2) (2002) (requiring that a federal
judge Ashall also
disqualify himself@ where Ain
private practice he served as lawyer in the matter in controversy, or a lawyer
with whom he previously practiced law served during such association as a
lawyer concerning the matter, or the judge or such lawyer has been a material
witness concerning it. . . .@).


[13]
The court of criminal appeals has given short shrift to Bradshaw I:  AThe
original decision in Bradshaw was on a different basis than that urged
in the present case, and is a tenuous decision at best. It is not authoritative
and certainly not persuasive to those familiar with the protocol involved.@  Gamez v. State, 737 S.W.2d 315, 319
(Tex. Crim. App. 1987).  


[14]
Contra Garrett v. State, 233 S.W.2d 498, 499 (Tex. Crim. App.
1950) (refusing to hold that a judge was disqualified who had been a district
attorney at the time the offense involved was alleged to have been committed,
noting that as a district attorney, he took no part in investigating the case,
and he did nothing more as judge than receive the indictment and make necessary
preliminary orders before transferring the case to another judge). 


[15]
The American Bar Association approved its model Code of Judicial Conduct in
1972.  The Texas Supreme Court adopted
the substance of that code, with minor changes, in 1974 (the A1974
Code@).  Canon 3(C)(1) of the 1974 Code provided:   
 
(1)
A judge should disqualify himself in a proceeding in which his impartiality
might reasonably be questioned, including, but not limited to, instances where:

 
(a)
he has a personal bias or prejudice concerning a party, or personal knowledge
of disputed evidentiary facts concerning the proceeding; 
 
(b)
he served as lawyer in the matter in controversy, or a lawyer with whom he
previously practiced law served during such association as a lawyer concerning
the matter, or the judge or such lawyer has been a material witness concerning
it; 
 
(c)
he knows that he, individually or as a fiduciary, or his spouse or minor child
residing in his household, has a financial interest in the subject matter in
controversy or in a party to the proceeding, or any other interest that could
be substantially affected by the outcome of the proceeding.  
 
Charles
Bleil & Carol King, Focus on Judicial Recusal: A Clearing Picture,
25 Tex. Tech. L. Rev. 773, 784-85
(1994).  The content of canon 3(C)(1) of
the 1974 Code no longer exists in the code of judicial conduct.  Id. 
Instead, the supreme court moved the substance of that canon to rule 18b
of the rules of civil procedure, where its provisions became part of the law
with which the current canon 2A requires a judge to comply.  Id. 



[16]
Canon 3(C)(1), Alabama Canons of Judicial Ethics states:
 
(1)
A judge should disqualify himself in a proceeding in which his disqualification
is required by law or his impartiality might reasonably be questioned,
including but not limited to instances where:
 
(a)
He has a personal bias or prejudice concerning a party, or personal knowledge
of disputed evidentiary facts concerning the proceeding.
 
(b)
He served as a lawyer in the matter in controversy, or a lawyer with whom he
previously practiced law served during such association as a lawyer in the
matter, or the judge or such lawyer has been a material witness concerning it.
 
Crawford
v. State, 686 So. 2d 199, 202 (Ala. Crim. App.
1996); compare Tex. R. Civ. P.
18b(1)(a).


[17]
Contra Smith v. Beckman, 683 P.2d 1214, 1216 (Colo. App. 1984) (holding
that the knowledge of another attorney in the district attorney=s
office is not imputed to his or her colleagues, reasoning that the rule is
different for law firm attorneys because they individually and collectively
have a financial interest in the outcome of the case); People v. Burnett,
392 N.E.2d 235, 238 (Ill. App. Ct. [1st Dist.] 1979) (reasoning that the trial
judge=s supervisory
position in his former capacity as an assistant state=s
attorney did not amount to his having acted Aas
counsel@ within the
meaning of the applicable judicial disqualification rule).  


[18]
Appellant informs us in his supplemental brief that A[t]hrough
inquiry with the County Attorney=s
office, Appellant has been unable to locate any other direct participation by
[the juvenile court judge] in Appellant=s
prosecution@ other than the
appearance of the judge=s name and
title on the pleadings.  We note that in
cases where the facts necessary to determine judicial disqualification are
undeveloped on appeal, the appellate court may abate the appeal and return the
case to the trial court for an evidentiary hearing on the issue.  McElwee v. McElwee, 911 S.W.2d 182,
186 (Tex. App.BHouston [1st
Dist.] 1995, writ denied).  Because of
our disposition of the disqualification issue as a matter of law, we do not
find abatement for additional factfinding necessary.  


[19]
It does not appear that the issue was brought to the judge=s
attention.   


[20]
We are not presented with nor do we express any opinion regarding application
in juvenile adjudications of the vicarious judicial disqualification provision
of rule 18b(1)(a) to former non-supervisory assistant prosecutors.  Tex.
R. Civ. P. 18b(1)(a).  


[21]
Tex. R. Civ. P. 18a.  


