French v. State, 52006

• Decision Date: 25 May 1977
• Docket Number: No. 52006,52006
• Citation: 572 S.W.2d 934
• Parties: John Allen FRENCH, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 934

572 S.W.2d 934

John Allen FRENCH, Appellant, v. The STATE of Texas, Appellee.

No. 52006.

Court of Criminal Appeals of Texas.

May 25, 1977.

On State's Second Motion For Rehearing Nov. 15, 1978.

M. P. Duncan, III, Decatur, for appellant.

Jack E. Shriver, County Atty., Decatur, Jim D. Vollers, State's Atty., David S. McAngus, Asst. State's Atty., Austin, for the State.

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 The mandate of the earlier opinion was withdrawn under the authority of Deramee v. State, Tex.Cr.App., 379 S.W.2d 908, and the State's motion for leave to file a motion for rehearing was granted so that we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. Valeo, 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.

DOUGLAS, Judge, dissenting.

The majority holds that Section 12C-3 of the Hurst City Ordinances, which provides for the appointing of additional temporary (alternate) municipal judges, conflicts with Article 1196(a), V.A.C.S., and is thus void under the authority of Article 11, Section 5 of the Texas Constitution. The majority further holds that the issuance of a search warrant in this cause by R. A. Hargrave could not be upheld as the act of a de facto The State contends that acts of the alternate municipal judges in the City of Hurst are not void. The majority relies on Germany v. State, 109 Tex.Cr.R. 180, 3 S.W.2d 798 (1928). In Germany, this Court addressed the distinction between de jure and de facto officers and stated:

                magistrate.  1  We should hold that Hargrave was a de facto officer and that the issuance of the search warrant was valid
                

"Two persons cannot, at the same time, be in the actual occupation and exercise of an office for which the law provides only one incumbent. Thus an officer de jure and an officer de facto cannot be in possession of the same office at the same time, nor can two different officers de facto be in an office for which the law provides only one incumbent."

The principle enunciated in Germany that two persons cannot simultaneously be in the actual occupation and exercise of an office for which the law provides only one incumbent is inapposite to the instant case. Section 12C-3 of the Hurst City Ordinances provides for the appointment of additional judges to the municipal court and, thus, provides for the appointment of more than one incumbent to the office of municipal judge.

It is fundamental that a judge de facto is one acting under color of authority and who is regarded as exercising the functions of the judicial office he assumes. Ball v. United States, 140 U.S. 118, 11 S.Ct. 761, 35 L.Ed. 377 (1891); McDowell v. United States, 159 U.S. 596, 16 S.Ct. 111, 40 L.Ed. 271 (1895); Ex parte Ward, 173 U.S. 452, 19 S.Ct. 459, 43 L.Ed. 765 (1899); Snow v. State, 134 Tex.Cr.R. 263, 114 S.W.2d 898 (1937); Craig v. State, 171 Tex.Cr.R. 256, 347 S.W.2d 255 (1961). The rules governing this concept are contained in 48 C.J.S. Judges § 2a(2) (1947):

"A judge de jure is one who is exercising the office of a judge as a matter of right. A judge de facto is one acting with color of right and who is regarded as, and has the reputation of, exercising the judicial function he assumes; he differs, on the one hand, from a mere usurper of an office who undertakes to act without any color of right; and, on the other, from an officer de jure who is in all respects legally appointed and qualified to exercise the office. In order that there may be a de facto judge there must be an office which the law recognizes, and where a court has no legal existence there can be no judge thereof, either de jure or de facto. There cannot be a de facto judge when there is a de jure judge in the actual performance of the duties of the office. Mere possession of the office is not sufficient to make the incumbent a de facto judge; to constitute him a de facto judge he must have color of title or his possession must have been acquiesced in by the public generally.

"Under these rules a judge who holds over after his term has expired may be a de facto judge. An unconstitutional statute is sufficient to give color of right or authority to elect or appoint a judicial officer, and a person elected or appointed by authority of such a statute is a de facto judge. In order to constitute a judge de facto, it is not necessary that he have color of appointment from a power having 'actual' authority to make the appointment, but it is sufficient that he has been appointed by some power having 'color' of authority to make it. . . ." (Footnotes omitted) (Emphasis added).

These rules have been consistently followed in this State. See 33 Tex.Jur.2d, Judges, Section 12. In Brown v. State, 42 Tex.Cr.R. 417, 60 S.W. 548, 549 (1901), this Court defined the de facto officer doctrine as follows:

"A de facto officer is one who is in possession of an office and discharging its duties under color of authority, by which In Anderson v. State, 149 Tex.Cr.R. 423, 195 S.W.2d 368 (1946), the defendant was convicted of driving while intoxicated. He contended on appeal that the act purporting to create the office of criminal district attorney in McLennan County was invalid as a special law in violation of Article 3, Section 56 of the Texas Constitution. This Court held that if the act were unconstitutional such act would not inure to the benefit of defendant because the criminal district attorney was a de facto officer. The Court then stated:

is meant authority derived from election or appointment, however irregular or informal, so that the incumbent be not a mere volunteer."

"While it is true, as a general rule, that in order for one to be a de facto officer there must be a de jure office, yet there are well-recognized exceptions to that rule. One of these is that where an office is provided for by an unconstitutional statute, the incumbent, for the sake of public policy and public justice, will be...