Lopez v. State

The term of the criminal district court of Willacy county was held in August, 1931. The Honorable George C. Westervelt was judge of the court, but was disqualified to try the case of the appellant Lopez. An exchange was effected whereby the Honorable A. M. Kent, judge of the 103rd Judicial District Court, presided over the criminal district court sitting in Willacy county during the trial of the appellant.

The point raised for the first time upon appeal is the contention that *Page 396 the judgment should be reversed because the record fails to show that the Hon. A. M. Kent took the oath of office required upon the appointment or election of a special judge of the district court as prescribed by article 555, C. C. P., 1925. For precedents holding that where a special judge is elected or appointed, the making and recording of the oath is essential. See Vernon's Ann. Tex. C. C. P., 1925, vol. 1, p. 480.

The case of Hull v. State, 50 Tex.Crim. Rep.,100 S.W. 403, 404, was one in which the following, in substance, took place: Judge Gillaspie was judge of the criminal district court of Galveston and Harris counties, and Judge Fisher was judge of the 10th Judicial District composed of Galveston county. During the term of court at which Hull was tried for murder in the criminal district court sitting at Galveston, there was an exchange of benches, Judge Fisher presiding in the criminal district court in lieu of Judge Gillaspie. The validity of the exchange under the authority of Judge Fisher, who was judge of a regular district court, was assailed upon various grounds. The Court of Criminal Appeals, holding the contention unsound, used the following language: "It is true, in Galveston County, until otherwise provided by law, the criminal court has exclusive criminal jurisdiction in all cases of felony; but this does not contravene the inherent power of a district judge to try criminal cases in said criminal district court. No doubt a district judge of some other district than Galveston might sit in said criminal district court, and we understand the inherent power of a judge of the 10th Judicial District to be equal to that of any other district judge under our Constitution. We accordingly hold that the judge of the 10th Judicial District Court was authorized to sit as judge of said criminal district court and try said case."

This ruling is compatible apparently with article 8, section 5, of the Constitution, declaring that the district court shall have original jurisdiction in all criminal cases of the grade of felony; also with article 7, section 5, defining the powers and duties of the district judge. The ruling in the Hull case, supra, is regarded as decisive of the unsoundness of the appellant's contention.

The case of Reasonover v. Reasonover (Texas Civ. App.),43 S.W.2d 174, apparently has no bearing upon the question mentioned.

Upon the record before us, we are constrained to overrule the motion for rehearing. It is so ordered.

Overruled. *Page 397