6.

De facto judge

A de facto officer is one who acts under color of authority, and is otherwise
qualified to hold office, but who has not completed all conditions precedent,
such
as taking an oath or filing a bond.[FN29] When a judge holds office under
color of
title by appointment, his or her official acts are conclusive and cannot be
attacked
by third parties in a collateral proceeding.[FN30] If a judge performs the
duties of
office under color of title and with the acquiescence of the public, he or she
is,
at least, a de facto judge, whose acts are valid.[FN31] This is the case where
the
incumbent lacks the prescribed qualifications and is incapable of holding
office,[FN32] or was appointed after a void order of removal of the regularly
elected judge.[FN33]

While, generally, one failing to take the oath of office as prescribed by the
state
constitution cannot become either a de jure or a de facto judge, and the
judge's
acts as such are void,[FN34] the de facto officer doctrine has been
specifically
applied to a challenge to the acts of a visiting judge for failure to take the
constitutional oaths.[FN35]

Illustration:

A former district judge and former justice on the court of appeals who
complied with
the statutory requirements for assignment as a senior judge after his
retirement was
at least a de facto officer, whose acts could not be attacked collaterally but
rather could be challenged only by the state in a quo warranto proceeding,
notwithstanding the judge's failure to take the constitutionally required oaths
of
office upon accepting assignment as a senior judge. This failure did not
render his
judgment nisi forfeiting a $40,000 bail bond void even though the judge
took his
last oath of office as a judge when he became justice of the appellate court
and
that term of office had expired upon his retirement.[FN36]

A putative judge has no authority over the proceedings and such judge's
actions are
a nullity if the judge does not possess the prescribed constitutional or
statutory
qualifications to act in that capacity, or if such judge is disqualified from a
particular case because of a relationship to the case or a party. If a judge is
qualified and not constitutionally or statutorily disqualified, the judge's
actions
are not void due to procedural irregularities in the manner in which the case
came
before that individual, although the proceedings may be voidable.[FN37]

Under the rule that there may be no de facto officer where there is no lawful
office, one assuming to act as the judge of a court which has been abolished
is not
a de facto judge.[ FN38]

CUMULATIVE SUPPLEMENT

Cases:

When a judge is holding office under the color of law and discharging his
duties of
office, his acts are conclusive as to all parties and cannot be attacked in an
appeal, even though the person acting as judge lacks the necessary
qualifications
and is incapable of legally holding the office. State v. Newton, 158 S.W.3d
582
(Tex. App. San Antonio 2005), reh'g overruled, (Jan. 27, 2005) and petition
for
discretionary review filed, (Apr. 7, 2005).

When judge is holding office under color of title by appointment and

discharging
duties of office, his acts are conclusive as to all persons interested and
cannot be
attacked in collateral proceeding, even though person acting as judge lacks
necessary qualifications and is incapable of legally holding office. Espinosa
v.
State, 115 S.W.3d 64 (Tex. App. San Antonio 2003).

The presumption of the regularity of trial court judgments and proceedings

applies
to appellate challenges of visiting trial court judges for alleged failures to
take
their constitutionally required oaths. Tex. Const. art. XVI § 1(c) ,(d) (2000).
Murphy v. State, 95 S.W.3d 317 (Tex. App. Houston 1st Dist. 2002), reh'g
overruled,
(Nov. 1, 2002) and petition for discretionary review refused, (Apr. 2, 2003).

[END OF SUPPLEMENT]

--------------------------------------------------------------------------------

[FN29] Prieto Bail Bonds v. State, 948 S.W.2d 69 (Tex. App. El Paso 1997),
reh'g
overruled, (July 23, 1997) and petition for discretionary review granted,
(Jan. 28,
1998).
As to de facto special judges, see § 52.
As to de facto officers, generally, see Tex. Jur. 3d, Public Officers and
Employees.
[FN30] Prieto Bail Bonds v. State, 948 S.W.2d 69 (Tex. App. El Paso 1997),
reh'g
overruled, (July 23, 1997) and petition for discretionary review granted,
(Jan. 28,
1998).

[FN31] Gonzalez v. State, 938 S.W.2d 482 (Tex. App. El Paso 1996), reh'g
overruled,
(Sept. 11, 1996) and petition for discretionary review refused, (Mar. 19,
1997).

[FN32] Gonzalez v. State, 938 S.W.2d 482 (Tex. App. El Paso 1996), reh'g
overruled,
(Sept. 11, 1996) and petition for discretionary review refused, (Mar. 19,
1997).

[FN33] Dismuke v. Reid, 188 S.W.2d 255 (Tex. Civ. App. 1945).

[FN34] Tex. Jur. 3d, Criminal Law § 1838.

[FN35] Prieto Bail Bonds v. State, 948 S.W.2d 69 (Tex. App. El Paso 1997),
reh'g
overruled, (July 23, 1997) and petition for discretionary review granted,
(Jan. 28,
1998).

[FN36] Prieto Bail Bonds v. State, 948 S.W.2d 69 (Tex. App. El Paso 1997),
reh'g
overruled, (July 23, 1997) and petition for discretionary review granted,
(Jan. 28,
1998).
[FN37] Davis v. State, 956 S.W.2d 555 (Tex. Crim. App. 1997).

[FN38] Daniel v. Hutcheson, 4 Tex. Civ. App. 239, 22 S.W. 278 (1893),
rev'd on other
grounds, 86 Tex. 51, 22 S.W. 933 (1893).