Baker v. State

261 S.W.2d 593

• Court: Court of Criminal Appeals of Texas
• Decided: June 24, 1953
• Docket: 26465
• Status: Published

Opinions

DAVIDSON, Commissioner.

This is a conviction for violating the •drunk driving statute. Art. 802, Vernon’s Ann.P.C.

The record affirmatively reflects that the regular judge of the County Court of Grimes County, in which court this case was filed and pending, recused himself from sitting as judge therein and that the parties ■agreed that Judge A. S. Ware, County Judge of Brazos County, might sit as special judge in the trial of the case.

Judge Ware did try the case, overruled the motion for new trial, and rendered the judgment herein.

One of the grounds asserted in the motion for new trial was that the special judge had not taken the prescribed oath of office and same was not of record in the court.

This allegation does not appear to be disputed. The record before us contains no such oath of office.

There is no question but that where a case is tried by a special judge the record must affirmatively reflect that such judge took the oath of office, as prescribed by the Constitution. This is true when the parties agree as to who shall act as special judge. Arts. 555 and 556, Vernon’s C.C.P. Woodland v. State, 148 Tex.Cr.R. 47, 184 S.W.2d 623; Davis v. State, Tex.Cr.App., 247 S.W.2d 392; Blackburn v. State, 149 Tex.Cr.R. 197, 192 S.W.2d 888.

While is it true that under the Constitution, Art. 5, § 11, Vernon’s Ann.St., and the statute, Art. 200a, Vernon’s A.C.S., district judges may exchange benches and hold court for each other, no such authority exists authorizing county judges to do so. Moreover, when a district judge exchanges bench or holds court for another district judge, he does so not as a special judge but as a district judge sitting for another.

Here, Judge Ware did not purport to act or sit as judge of the county court of Brazos County, but, rather, as a special judge. A special judge has no authority to act until he has taken the oath of office. Until he has taken such oath, his acts are a nullity.

Because of the failure of the special judge to take and to subscribe the oath of office, this judgment must be and is reversed and the cause remanded.

Opinion approved by the Court.