The opinion
DOUGLAS, Judge,
concurring.
I concur with the majority that relief should not be granted.
This is a collateral attack upon an indictment alleging that the courthouse of Den-ton County is not located at the county seat. This Court has held that a collateral attack may not be made upon an indictment where it was presented at the de facto site of county government:
“The jurisdiction of the court to try this case at Marfa did not depend upon the question whether or not Marfa was the county-site de jure of Presidio county. It being de facto the county-site was sufficient to give the court jurisdiction; Marfa was being occupied and recognized as the county-site under color of authority of law, — under color of its having been selected and established as such county-site in the mode provided by law. The plea sought to inquire into and determine whether it was the county-site de jure.
This question could not be raised collaterally. If Marfa was not rightfully and legally the county-site, being such de fac-to its legality as a county-site could only be inquired into and determined by some direct proceeding had for that purpose. Such direct proceeding has been taken, and our supreme court, since this conviction was had, in such proceeding decided that Fort Davis and not Marfa was the county-site de jure of Presidio county. Caruthers v. State, 67 Tex. 132 , 2 S.W. 91 . But, as before stated, Marfa, at the time the trial and conviction in this case were had, was the county-site de facto, and, being so, it matters not in this case that it was not the county-site de jure. This question is analogous to a collateral attack made upon the authority of an officer de facto. The authority of a de facto officer cannot be questioned collaterally. His official acts, until ejected from office, are valid. Aulanier v. The Governor, 1 Tex. 653 ; McKinney v. O’Connor, 26 Tex. 5 ; Ex parte Call, 2 Tex.App. 497 . We are of the opinion that the trial of the case at Marfa was legal and valid, notwithstanding said town was not the legal county-site of Presidio county at the time.” Watts v. State, 3 S.W. 769, 770 (1886), 22 Tex.App. 572 .
We should now follow Watts and dismiss the application for prohibition and mandamus because leave to file was improvidently granted.