There are times when courts of appeals entertain certain issues of the law because the trial court failed to take reasonable steps to safe guard to appearance of impropriety. The decision handed down by the Texas Court of Criminal Appeals on October 19, 2016 in the criminal case of Anthony Austin Metts is a prime example. The issue in that case concerns when a judge, who was prior prosecutor in the case, should be disqualified.


The law on this issue is quite clear.


Previously Participated as Counsel for the State


Article 30.01 of the Texas Code of Criminal Procedure and Article V, Section 11, of the Texas Constitution both require the disqualification of a judge “who has previously participated as counsel for the State in a pending matter.”


Metts pled guilty in 2004 to two counts of sexual assault of a child in Midland County. The plea was the result of an agreement between the State and Metts. The terms of the agreement were that Metts would plead guilty to both counts in exchange for a recommendation of deferred adjudication and a ten-year community supervision period for each offense.


Judge Signed Plea Papers as Prosecutor


A status hearing was conducted in the case on March 19 at which, with the consent of the State, Metts waived his right to a jury trial and announced he had “accepted the plea bargain.” Robin Darr was the Chief Prosecutor for the 385th District Court. Darr signed the document acknowledging the State’s consent to Metts’ waiver of the jury trial.


This hearing lasted approximately three minutes during which Darr made one statement: “Let me give you a waiver to sign,” speaking to Metts. The court reporter’s record listed her as “counsel for the State” and her initials were on the “criminal docket sheet.”


The following week Metts formally tendered his guilty plea to Judge Willie DuBose who accepted the plea agreement and placed Metts on deferred adjudication. Darr was not present at this hearing and her name did not appear on any of the other documents in the case.


Prosecutor Becomes Judge


Judge Dubose retired seven months later. Darr sought and was elected as the “new presiding judge of the 385th District Court.”


In the meantime, Metts had become dissatisfied with the terms of his community supervision. Between 2005 and 2013, Metts filed a litany of writs and motions challenging these terms. Judge Darr denied all the pleadings—one of which made its way to the Eleventh Court of Appeals and was upheld by the appeals court. Metts did not object to Judge Darr’s participation in any of these proceedings and it was not made an issue before the appeals court.


Motion to Adjudicate Deferred Adjudication Probation


The situation change dramatically in the ninth year of Metts’ community supervision. The State moved to revoke Metts’ community supervision based on twenty-five violations and to have his guilt on the 2004 offenses adjudicated.


On May 30, 2013, Judge Darr adjudicated Metts guilty for each offense, revoked his community supervision, and sentenced him to ten years in prison for each offense.


Disqualification of Judge Raised for First Time on Appeal


Metts appealed the revocation proceeding. He argued that the proceedings were void “because Judge Darr was constitutionally and statutorily disqualified from presiding over the adjudication hearing.”


This was the first time Metts had raised this objection. He contended to the appeals court that it should hear the issue because the “disqualification” occurred “as a matter of law.”


The State responded to Metts’ argument by saying that “Judge Darr’s conduct as a prosecutor amounted to a mere ‘perfunctory act,’ a ministerial function failing to rise to the level of the active participation that [Metts] would have needed to demonstrate in order to disqualify a trial judge.”


The Eleventh District Court of Appeals “drew a distinction between perfunctory acts and active participation” in accepting the State’s argument and denying Metts’ disqualification issue.


Court of Criminal Appeals Reverses Conviction


The Texas Court of Criminal Appeals reversed the appeals court. It did so based on its own clearly established precedents.


For example, in 1985 the court decided Ex parte Miller in which it held that a trial judge who, as a prosecutor, had previously signed “the application for jury waiver, the waiver of indictment and charge by information, the plea bargaining agreement, the agreed motion to modify probation, and the first motion to adjudicate guilt” had engaged in “actual and active participation” in Miller’s conviction” warranting disqualification.


Judge Darr should have been aware of the Miller decision and automatically recused herself from the case. Likewise, the State, considering Miller, should have recognized that Judge Darr was constitutionally and statutorily disqualified from the Metts case and should not have proceeded with the revocation proceedings before her.


Judge “Must Be” Disqualified if Actively Participated in the Case


As for the Eleventh District’s distinction between perfunctory acts and active participation in disqualification matters, the appeals court was aware, or should have been, that the Court of Criminal Appeals had only once found “perfunctory acts” and that was in the case of Gomez v. State, decided in 1987.


In the Gomez case, the court said a judge must be disqualified if he or she “actively participated in the preparation of the case against the defendant.”


The judge was in the Gomez case was not disqualified because his name merely appeared “rubber stamped” on the State announcement of “ready for trial.” The Metts court pointed out that “the trial judge had never made an appearance in the case and had never examined the State’s files. The use of the judge’s rubber stamped signature did not signify his active participation in the case.”


The Court of Criminal Appeals contrasted the Metts case with the Gomez case:


“Gomez is clearly distinguishable from [the Metts] case in a number of ways. In Gomez, the trial judge never made an appearance in the case as a prosecutor. Here, Judge Darr appeared at [Metts’] status hearing to represent the State on March 19th, 2004, and is listed in the court reporter’s record as counsel for the State on that occasion. In Gomez, the use of the trial judge’s rubber stamped signature required no active participation on the judge’s behalf. In this case, Judge Darr personally signed the written document signifying the State’s ‘consent and approval’ to the jury waiver. In Gomez, we determined that the trial judge never acted as ‘counsel in the case’ at all. The same cannot be said in the present case. Judge Darr must have acted as counsel in the case in order to consent to [Metts’] waiver of a jury trial.”


The court then concluded that Judge Darr’s action were “more akin” to those of the judge in the Miller case “where, among other documents, the trial judge did sign a jury waiver form.”


Judges Should be Recused as Matter of Law


The clear distinction between the Miller and Gomez cases should have, at the outset, been clear to Judge Darr, sufficient for her to trigger her own recusal. Likewise, the distinctions, as so succinctly pointed out by the Court of Criminal Appeals, should have been as clear to the Eleventh Circuit and the State.


Perhaps now, with Metts, trial judges who face these kinds of disqualification issues will step aside as a matter of law. There will be no need to try to expand “perfunctory acts” from the original intent of Gomez.