6 De Facto Judge Quo Warranto

6. De facto judge A de facto officer is one who acts under color of authority, and is otherwise qualified to hold office, but who has not completed all conditions precedent, such as taking an oath or filing a bond.[FN29] When a judge holds office under color of title by appointment, his or her official acts are conclusive and cannot be attacked by third parties in a collateral proceeding.[FN30] If a judge performs the duties of office under color of title and with the acquiescence of the public, he or she is, at least, a de facto judge, whose acts are valid.[FN31] This is the case where the incumbent lacks the prescribed qualifications and is incapable of holding office,[FN32] or was appointed after a void order of removal of the regularly elected judge.[FN33] While, generally, one failing to take the oath of office as prescribed by the state constitution cannot become either a de jure or a de facto judge, and the judge's acts as such are void,[FN34] the de facto officer doctrine has been specifically applied to a challenge to the acts of a visiting judge for failure to take the constitutional oaths.[FN35] Illustration: A former district judge and former justice on the court of appeals who complied with the statutory requirements for assignment as a senior judge after his retirement was at least a de facto officer, whose acts could not be attacked collaterally but rather could be challenged only by the state in a quo warranto proceeding, notwithstanding the judge's failure to take the constitutionally required oaths of

office upon accepting assignment as a senior judge. This failure did not render his judgment nisi forfeiting a $40,000 bail bond void even though the judge took his last oath of office as a judge when he became justice of the appellate court and that term of office had expired upon his retirement.[FN36] A putative judge has no authority over the proceedings and such judge's actions are a nullity if the judge does not possess the prescribed constitutional or statutory qualifications to act in that capacity, or if such judge is disqualified from a particular case because of a relationship to the case or a party. If a judge is qualified and not constitutionally or statutorily disqualified, the judge's actions are not void due to procedural irregularities in the manner in which the case came before that individual, although the proceedings may be voidable.[FN37] Under the rule that there may be no de facto officer where there is no lawful office, one assuming to act as the judge of a court which has been abolished is not a de facto judge.[ FN38] CUMULATIVE SUPPLEMENT Cases: When a judge is holding office under the color of law and discharging his duties of office, his acts are conclusive as to all parties and cannot be attacked in an appeal, even though the person acting as judge lacks the necessary qualifications and is incapable of legally holding the office. State v. Newton, 158 S.W.3d 582

(Tex. App. San Antonio 2005), reh'g overruled, (Jan. 27, 2005) and petition for discretionary review filed, (Apr. 7, 2005). When judge is holding office under color of title by appointment and discharging duties of office, his acts are conclusive as to all persons interested and cannot be attacked in collateral proceeding, even though person acting as judge lacks necessary qualifications and is incapable of legally holding office. Espinosa v. State, 115 S.W.3d 64 (Tex. App. San Antonio 2003). The presumption of the regularity of trial court judgments and proceedings applies to appellate challenges of visiting trial court judges for alleged failures to take their constitutionally required oaths. Tex. Const. art. XVI § 1(c) ,(d) (2000). Murphy v. State, 95 S.W.3d 317 (Tex. App. Houston 1st Dist. 2002), reh'g overruled, (Nov. 1, 2002) and petition for discretionary review refused, (Apr. 2, 2003). [END OF SUPPLEMENT]

-------------------------------------------------------------------------------[FN29] Prieto Bail Bonds v. State, 948 S.W.2d 69 (Tex. App. El Paso 1997), reh'g overruled, (July 23, 1997) and petition for discretionary review granted, (Jan. 28, 1998). As to de facto special judges, see § 52. As to de facto officers, generally, see Tex. Jur. 3d, Public Officers and Employees.

[FN30] Prieto Bail Bonds v. State, 948 S.W.2d 69 (Tex. App. El Paso 1997), reh'g overruled, (July 23, 1997) and petition for discretionary review granted, (Jan. 28, 1998). [FN31] Gonzalez v. State, 938 S.W.2d 482 (Tex. App. El Paso 1996), reh'g overruled, (Sept. 11, 1996) and petition for discretionary review refused, (Mar. 19, 1997). [FN32] Gonzalez v. State, 938 S.W.2d 482 (Tex. App. El Paso 1996), reh'g overruled, (Sept. 11, 1996) and petition for discretionary review refused, (Mar. 19, 1997). [FN33] Dismuke v. Reid, 188 S.W.2d 255 (Tex. Civ. App. 1945). [FN34] Tex. Jur. 3d, Criminal Law § 1838. [FN35] Prieto Bail Bonds v. State, 948 S.W.2d 69 (Tex. App. El Paso 1997), reh'g overruled, (July 23, 1997) and petition for discretionary review granted, (Jan. 28, 1998). [FN36] Prieto Bail Bonds v. State, 948 S.W.2d 69 (Tex. App. El Paso 1997), reh'g overruled, (July 23, 1997) and petition for discretionary review granted, (Jan. 28, 1998).

[FN37] Davis v. State, 956 S.W.2d 555 (Tex. Crim. App. 1997). [FN38] Daniel v. Hutcheson, 4 Tex. Civ. App. 239, 22 S.W. 278 (1893), rev'd on other grounds, 86 Tex. 51, 22 S.W. 933 (1893).