French v. State

572 S.W.2d 934

• Court: Court of Criminal Appeals of Texas
• Decided: November 15, 1978
• Docket: 52006
• Status: Published

Opinions

OPINION

ON STATE’S MOTION FOR REHEARING

PHILLIPS, Judge.

On original submission we held that Sec. 12C-3 of the Hurst City Ordinances, providing for the appointment of temporary (“alternate”) municipal judges, conflicts with Art. 1196(a), V.A.C.S., and is therefore void under Art. 11, Sec. 5 of the Texas Constitution. Additionally, we held that the issuance of a search warrant in this cause by R. A. Hargrave, an “alternate” magistrate appointed pursuant to Sec. 12C-3, could not be upheld as the act of a de facto magistrate. The mandate of the earlier opinion was withdrawn under the authority of Deramee v. State, Tex.Cr.App., 379 S.W.2d 908, and the State’s motion for leave to file a motion for rehearing was granted so that we could consider the State’s contention that acts of the Hurst alternate municipal judges are not void. The State’s motion for rehearing is overruled, and the order revoking probation is reversed.

The original opinion relied on Germany v. State, 109 Tex.Cr.R. 180, 3 S.W.2d 798, which the dissenting opinion incorrectly concludes is inapposite to the instant case. The Court in Germany held that an officer de jure and an officer de facto cannot be in possession of the same office at the same time. It further held that two different officers de facto cannot be in an office for which the law provides only one incumbent. The record in the instant case reflects that the city of Hurst has one elected municipal judge and three appointed “alternate” magistrates. Thus, we have the situation of one de jure officer and three officers de facto. As noted in the original opinion, Art. 1196(a), V.A.C.S., is the statutory authorization for municipal judges in home rule cities. It is this statute, which was authorized by Art. 11, Sec. 5, of the Texas Constitution, which is the law in the instant case. It is this statute which controls. The fact that Sec. 12C-3 of Hurst City Ordinances provides for the appointment of additional judges to the municipal court is not relevant.

The doctrine of officers de facto was created as a matter of public policy to protect both an officer appointed by some power having “color’’ of authority to appoint him and the public relying on the validity of that appointment. However, as pointed out in 48 C.J.S. Judges § 2a(2) (1947), this doctrine is not applicable to the present fact situation: “There cannot be a de facto judge when there is a de jure judge in the actual performance of the duties of the office.”

The dissent’s reliance on Ex parte Tracey, Tex.Cr.App., 93 S.W. 538, and Germany is misplaced. Those cases dealt with judges appointed pursuant to constitutional statutes, while we here are concerned with three alternate judges appointed pursuant to a city ordinance which violates the mandates of both the Texas Constitution and the Civil Statutes.

The dissent would hold that a judge de facto is the judge de jure as to all parties except the State and require that the official acts of a de facto judge could not be successfully challenged except in a direct proceeding to which the judge is a party. The dissent’s reliance on Snow v. State, 134 Tex.Cr.R. 263, 114 S.W.2d 898, overlooks the fact that Snow contemplated an either/or situation in which there was either a de jure judge or a de facto judge. Using this rationale, the city of Hurst now has four de jure judges in spite of the fact that the Legislature, by constitutional authorization, has only provided for one de jure judge.

The dissent’s reliance on Buckley v. Valco, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) is similarly not helpful in the situation here presented, since the instant case has an incumbent de jure, whereas the incumbent in Buckley was appointed under the Federal Election Campaign Act of 1971 (as amended in 1974) which violated the appointment clause. Although the court held that the commission as it was then constituted could not constitutionally exercise the powers given to it by the act, past acts of the commission were accorded de facto validity. Public policy compelled the result in Buckley. However, public policy would not be served in the instant case by permitting a city ordinance to supersede clear constitutional mandates and statutory authorization by appointing as many “alternate” judges as the mayor may desire.

For these reasons, the State’s motion for rehearing is overruled and the order revoking probation is reversed and the cause remanded.