


 
IN THE
TENTH COURT OF APPEALS










 

No. 10-05-00109-CR
 
The State of Texas,
                                                                      Appellant
 v.
 
ronald eugene holmes,
                                                                      Appellee
 
 
 

From the County Court at Law
McLennan County, Texas
Trial Court No. 2004-3929-CR1
 

DISSENTING Opinion





 
          For the reasons stated in my
dissenting opinion in State v. Stanley, No. 10-05-00101-CR (Tex.
App.—Waco July 27, 2005, no pet. h.), I dissent.
 
                                                          TOM
GRAY
                                                          Chief
Justice 
 
Dissenting
opinion delivered and filed July 27, 2005


60;                                                          Appellee
 

From the County Court
Hill County, Texas
Trial Court # M4413
                                                                                                    

O P I N I O N
                                                                                                    

      Peggy Saylors appeals her conviction for the misdemeanor offense of telephone harassment. 
See Tex. Penal Code Ann. § 42.07 (Vernon 1989).  Saylors was found guilty by a jury and a
special judge assessed punishment at sixty days in the Hill County Jail and a $1000 fine, probated
for twelve months.
      In point one, Saylors contends that the judgment is void because the special judge had no
jurisdiction to preside.  The rule is that a judgment rendered by a special judge who had not been
appointed or selected in accordance with the constitutional and statutory requirements governing
such matters is an absolute nullity.  See Clements v. Fort Worth & D. S. P. Ry. Co., 7 S.W.2d
895, 898 (Tex. Civ. App.—Amarillo 1928, no writ).
      Article 5, section 16, of the Texas Constitution provides, in part:
When the judge of the County Court is disqualified in any case pending in the
County Court the parties interested 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.

Tex. Const. art. V, § 16 (emphasis added).
      Article 30.03, section 1, of the Texas Code of Criminal Procedure authorizes the appointment
of a special judge when the regular county judge is disqualified:
When the judge of the county court or county court at law, or of any county criminal
court, is disqualified in any criminal case pending in the court of which he is judge, the
parties may by consent agree upon a special judge to try such case.  If they fail to agree
upon a special judge to try such case, on or before the third day of the term at which such
case may be called for trial, the practicing attorneys of the court present may elect from
among their number a special judge who shall try the case.  The election of the special
judge shall be conducted in accordance with the provisions of Article 1887, et seq.,
V.A.C.S. [current version at Tex. Gov't Code Ann. § 24.005 (Vernon 1988)].

Tex. Code. Crim. Proc. Ann. art. 30.03, § 1 (Vernon 1989) (emphasis added).  Thus, article
30.03, section 1, establishes the "manner as may be prescribed by law" contemplated by article
5, section 16, of the Texas Constitution.  When the regular county judge is disqualified and the
parties are unable to agree on "a proper person," a special judge may be elected by the practicing
attorneys of the court.  
      Under article 30.03, section 2, a special judge may also be appointed when the regular judge
is absent or disabled:
In the event a county judge or the regular judge of a county court at law created in
a county is absent, or is for any cause disabled from presiding, a special judge, who is
an attorney, may be appointed by the commissioners court of the county.

Id. § 2.  This provision for appointment of a special judge, when the regular county judge is
absent or disabled, does not require an effort by the parties to agree on "a proper person." 
Regardless of whether a special judge is agreed upon by the parties, elected, or appointed by the
commissioners court, however, the record must show the authority for the special judge's
selection.  Reed v. State, 55 Tex. Crim. 137, 114 S.W. 834 (1908).  According to article 30.05
of the Code of Criminal Procedure:
When a special judge is agreed upon by the parties, elected, or appointed as herein
provided, the clerk shall enter in the minutes as a part of the proceedings in such cause
a record showing:
1.That the judge of the court was disqualified, absent, or disabled to try the cause;
2.That such special judge (naming him) was by consent of the parties agreed upon,
or elected or appointed;
3.That the oath of office prescribed by law was duly administered to such special
judge.

Tex. Code Crim. Proc. Ann. art. 30.05.
      It has long been established that, when a special judge is selected under the provisions of
article 30.03, a failure of the record to affirmatively show that the matters required by article
30.05 were entered in the minutes of the county court is reversible error.  See, e.g., Baker v.
State, 159 Tex. Crim. 130, 261 S.W.2d 593, 594 (1953); Woodland v. State, 148 Tex. Crim. 47,
184 S.W.2d 623, 624 (1945).  In the present case, however, the special judge was not agreed upon
by the parties, elected by the bar, or appointed by the commissioners court as provided in article
30.03.  Therefore, article 30.05, by its own terms, does not apply.
  Indeed, the docket sheet
reflects that Charles R. Herd, the county judge, appointed a special judge on February 27, 1991,
with the following notation:
WILLIAM T. COLEMAN, JR. APPOINTED SPECIAL JUDGE ON MOTION OF
THE COURT AS PER ARTICLE 26.022 GOVERNMENT CODE.  C. H.

      Section 26.022 of the Texas Government Code authorizes the county judge, in counties where
there is no county court at law, to appoint a special judge:
(a)  The county judge for good cause may at any time appoint a special judge with
respect to any pending civil or criminal matter.
(b)  The special judge may be appointed on motion of the court or on motion of any
counsel of record in the matter.  Each counsel of record is entitled to notice and hearing
on the matter.
(c)  To be appointed a special judge, a person must be:
                  (1)  a licensed attorney; and
                  (2)  agreed on by the counsels of record, if the counsels are able to agree.
(d)  The motion for appointment and the order appointing the special judge shall be
noted on the docket.  A written motion or order may be filed among the papers of the
case.
(e)  The special judge has the powers of the county judge in relation to the matter
involved.

Tex. Gov't Code Ann. § 26.022 (Vernon 1988) (emphasis added).  According to section 26.028,
"The county judge shall consider the recommendations of attorneys of the court as to the
implementation of this subchapter and the accomplishment of its purposes."  Id. § 26.028
(emphasis added).  When the regular judge is disqualified, article 5, section 16, of the Texas
Constitution requires that the parties fail to agree on "a proper person" before a special judge may
be appointed "in such manner as may be prescribed by law."  However, sections 26.022 and
26.028 of the Government Code extend the constitutional prerequisite to all appointments of a
special judge by the county judge for any "good cause."
      Just as when a special judge is selected under the authority of article 30.03, we must
determine whether Coleman was selected in accordance with the constitutional and statutory
requirements governing the appointment of a special judge by the county judge.  Sections 26.022
and 26.028 contain several mandatory provisions.  Although the motion for appointment and the
order appointing the special judge were noted on the docket, the record does not reflect that each
counsel of record was given notice and accorded a hearing on the matter, or that the county judge
considered the recommendations of the attorneys in its appointment of the special judge.  We hold
that the omission in the appellate record is reversible error.  See Reed, 114 S.W. at 834.
      The State argues that, because Saylors did not timely object to the appointment of the special
judge in the trial court, we must presume the regularity of the appointment of a special judge under
the authority of section 26.022.
  The State's argument is identical to the dissent in Reed:
Whenever in any case on trial before a special judge the parties proceed without protest
or objection and for the first time challenge the regularity of the appointment on appeal,
it ought to be presumed, in aid of the jurisdiction of the court, that the appointment or
selection was regular, and that such judge had regularly taken the precedent steps
necessary and provided by law for his proper qualification.

Id. (Ramsey, J., dissenting).  As in Reed, the judgment in this case must be reversed because the
record fails to reflect the jurisdiction of the special judge to enter the judgment.  Accordingly, we
sustain point of error one.  See Reed, 114 S.W. at 834.
      The state may, on motion for rehearing, bring the minutes forward or otherwise demonstrate
that the special judge was appointed in compliance with the mandatory provisions of sections
26.022 and 26.028.  See Baker, 261 S.W.2d at 594-95.  We do not reach Saylors' remaining
points of error.
      We reverse the judgment of the trial court and remand the cause for a new trial.
 
                                                                                 BOBBY L. CUMMINGS
                                                                                 Justice

Before Chief Justice Thomas,
          Justice Cummings, and
          Justice Vance
Reversed and remanded
Opinion delivered and filed August 12, 1992
Publish 
