Opinion

Herrod v. State

  • 650 S.W.2d 814
  • 1983 Tex. Crim. App. LEXIS 1043
Court
Court of Criminal Appeals of Texas
Filed
May 25, 1983
Status
Published
Author
McCORMICK
On the bench
Onion, McCormick, Davis, Campbell
Cited by
36 cases
Authority
More cited than 7.3%

retired judge was not authorized to preside because record failed to show: an order of assignment from the administrative judge, that the duly elected judge was disabled, and that the retired judge had executed the bond and taken the oath of office

How later courts described this case

  • retired judge was not authorized to preside because record failed to show: an order of assignment from the administrative judge, that the duly elected judge was disabled, and that the retired judge had executed the bond and taken the oath of office
  • “While this record does not so reflect, we can take judicial notice that Judge Ed Gossett retired as a district judge on December 31, 1976, and timely filed his election to continue in a judicial capacity as shown by the records of the Chief Justice of the Supreme Court of Texas.”
  • applying former TEX. REV. CIV. STATS. art. 1970-31.30 sec. 1(a) (repealed)
  • outlining the requirements in the statute, including execution of a bond

Written by the judges who cited it.

The opinion

McCORMICK, Judge,

dissenting.

The majority would reverse appellant’s conviction herein because there is nothing in the record before us to show by what authority a retired district judge sat as trial judge in a county criminal court of Dallas County. Because there was no objection or complaint on this ground of error raised at the trial, nothing has been preserved for review and any error has been waived. Esquivel v. State, 595 S.W.2d 516 (Tex.Cr.App.1980); Thompson v. State, 537 S.W.2d 732 (Tex.Cr.App.1976). If there is no trial court objection, then only a fundamental error requires reversal. Gooden v. State, 576 S.W.2d 382 (Tex.Cr.App.1979); Smith v. State, 513 S.W.2d 823 (Tex.Cr.App.1974).

Article 6228b, Section 7, V.A.C.S., (as it was effective at the time of this trial on September 6, 1978), provided that a retired appellate or district court judge, if eligible, may “sit in any court of this state of the same dignity, or lesser, as that from which they retired.... ” (Emphasis added). If it is unnecessary for a written order to be entered for district judges to exchange benches, I see no reason for such an order for a retired judge to sit on a lesser court than that from which he retired absent an objection to the court. See Crawford v. State, 509 S.W.2d 582 (Tex.Cr.App.1974); Peach v. State, 498 S.W.2d 192 (Tex.Cr.App.1973); Buchanan v. State, 471 S.W.2d 401 (Tex.Cr.App.1971).

In a similar situation in French v. State, 572 S.W.2d 934 (Tex.Cr.App.1978), and Keen v. State, 626 S.W.2d 309, 311-12 (Tex.Cr.App.1981), it was held that if a judge acts under color of law 1 and reasonably believing himself to be a judge, and discharges the duties of the office, his actions could only be challenged directly in a quo warranto proceeding and not on appeal. Keen v. State, supra; Snow v. State, 134 Tex.Cr.R. 263 , 114 S.W.2d 898 (1937); Ex parte Lefors, 171 Tex.Cr.R. 229 , 347 S.W.2d 254 (1961). See also, Archer v. State, 607 S.W.2d 539 (Tex.Cr.App.1980).

For these reasons, I respectfully dissent.

W.C. DAVIS and CAMPBELL, JJ., join in this dissent.

. As here, under Article 6228b, Section 7, V.A. C.s.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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