The opinion
ON MOTION FOR REHEARING.
MORROW, Presiding Judge.
A suggestion is made that fundamental error is apparent upon the record in the matter of the selection of the special judge. We find in the record a written agreement bearing the signature of the District Attorney and the attorney for the appellant in which there is the following recital:
“Whereas, the Honorable R. T. Brown, presiding judge of said above court, being absent and disqualified from sitting in and trying the above entitled and numbered cause, we, the undersigned, counsel for said state and defendant, parties to this case, do hereby select and agree upon S. H. Sanders, an attorney of this court, to preside as special judge in the trial of said cause.”
In support of the appellant’s contention that the trial by the special judge was void, we are referred to the cases of Pickett v. Michael, 187 S. W. 427 ; and Dunn v. Home National Bank, 181 S. W. 699 . We understand from the reports of the cases mentioned that the agreement to select the special judge was not based upon the disqualification of the regular judge. In the case of Dunn v. Home National Bank, supra, it was specifically stated that “the record here shows no disqualification of the regular-judge.” The same fact also appears in the other case.
In the Constitution, Article 5, Section 11, it is stated:
“When a judge of the District Court is disqualified by any of the causes above stated, the parties may, by consent, appoint a proper person to try said case; or upon their failing to do so, a competent person may be appointed to try the same in the county where it is pending, in such manner as may be prescribed by law.”
A somewhat extended discussion of the subject will be found in Patterson’s case, 87 Tex. Crim. Rep. 95, wherein the selection of a special judge by agreement was upheld.
In view of the agreement in the present case and the express recital therein that the Honorable R. T. Brown was
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“disqualified”
and there being nothing in the record which indicates the contrary, we are unable to find sanction for the appellant’s contention that the judgment is void.
The motion for rehearing is overruled.
Overruled.