holding that an oath to perform the duties of a special judge "agreeably to the Constitution and laws of the United States and of this State" but did not include an obligation to "preserve, protect The Honorable Jo Anne Bernal - Page 5 (KP-0140) and defend" the constitutions and laws did not satisfy the constitutional oath requirements
How later courts described this case
- holding that an oath to perform the duties of a special judge "agreeably to the Constitution and laws of the United States and of this State" but did not include an obligation to "preserve, protect The Honorable Jo Anne Bernal - Page 5 (KP-0140) and defend" the constitutions and laws did not satisfy the constitutional oath requirements
- holding special judge, until he takes oath, has no authority to act
Written by the judges who cited it.
The opinion
ON MOTION FOR REHEARING.
WOODLEY, Judge.
Our attention is now directed to the form of oath administered to Special County Judge Walter K. Boyd, Jr., following his election by the bar to preside at the May Term, 1950, of the county court of Coleman County, Texas, appellant having been tried and convicted in said court at said term on June 6, 1950.
R. S. Art. 1934, provides for the election of a special judge in the county court, while Art. 555, C.C.P., provides that a special judge of said court shall, before he enters upon his duties as special judge, take the oath of office required by the Constitution.
The oath administered to Special County Judge Boyd is not that required by the Constitution of Texas.
He took the oath to discharge and perform the duties of said office “agreeably to the Constitution and laws of the United States and of this State,” as formerly required, but this oath did not include the obligation to “preserve, protect and defend” such constitutions and laws as required since the 1938 Amendment to the Constitution. See Vernon’s Ann. Texas Const., Art. 16, Sec. 1.
A special judge, though duly elected in accordance with the statutes, is without authority to act until he has taken the oath prescribed by the Constitution.
_In Enloe v. State, 141 Tex. Cr. R. 602 , 150 S.W. 2d 1039 , this court held that the taking of an oath in the form provided *34 by the Constitution of this state prior to its amendment in 1938 would not suffice, the oath now required being substantially different.
The opinion in that case and the authorities therein cited are decisive of the question here raised. It follows that appellant’s contention that his conviction should be reversed must be sustained.
Appellant’s motion for rehearing is granted, the judgment of affirmance set aside, and the cause is now reversed and remanded.
Opinion approved by the court.