Appellant was tried at a term of the District Court which began on the 7th day of March, 1927, over which the Hon. Tom J. Ball presided. The indictment was returned at the December (1926) term of the District Court, at which time the Hon. Tom P. Whipple presided as special judge. The point apparently raised is that in the absence of an order appointing a jury commission at the December term of court the acts of the grand jury selected by the court from persons designated by the jury commissioners at the subsequent term were void. As stated in the original opinion, there are numerous precedents to the effect that when a conviction results from a trial in the District Court over which a special judge presides, a reversal will be ordered on appeal unless the record shows the election or appointment of the special district judge and his qualifications. Such is the interpretation of Art. 1886, R. S., 1925, made by this court in Harris v. State, 288 S.W. 450, and Blanks v. State, 288 S.W. 452, and the numerous authorities collated in each of said cases. So far as we are aware, however, it has never been held that *Page 223 the validity of a grand jury organized at a subsequent term of court from persons designated by the jury commission appointed at the preceding term, presided over by a special judge, was rendered void by reason of the failure of the record to show the appointment of the jury commissioners. The statute requiring that the special judge be selected according to the statutory law and that his acceptance and qualification be made a matter of record has, throughout the history of this court, been deemed mandatory, and that a trial and conviction at a term of court at which a special judge purports to have presided cannot be upheld in the absence of a record showing his appointment and qualification.
Touching the orders made by the court in which a specialjudge presides, it would seem that there would prevail the same presumption of validity as would attach with the regular judge presiding, and the mere omission of the clerk to record an order made by proper authority is not believed such fault as would render void action taken by reason of the order. Cyc. of Law Proc., Vol. 20, pp. 1305-1312; Ruling Case Law, Vol. 13, pp. 1016-1018. Analogous is the case of Schwartz v. State,38 Tex. Crim. 29-30, from which we quote as follows:
"Now, there is no authority in any statute that we know of requiring the election and qualification of a special judge selected under Art. 1071, R. S., 1895, to accompany the transfer of the case as a part of the record thereof; and we hold that where the transfer shows that it was from the District Court to the County Court, and by a special judge, it will be presumed that the contingency arose which authorized the selection of the special judge, and that all of the conditions of his appointment and qualification, as required by the statute, were complied with, and entered upon the minutes of the District Court, as the law requires. If his authority is to be questioned, the onus is upon the party attacking his authority to show that he was not in fact a special judge of said District Court, and that the order of transfer, in consequence, was void. The cases to which we are referred by counsel, as stated before, have no application to this case."
From the qualication of the bill of exceptions under discussion, it appears that at the September term, 1926, "the Hon. Tom. P. Whipple, an attorney of this bar, was elected in due form as special judge of this court for the September term, 1926, and as such had jury commissioners at the last of the term to draw a grand jury and jurors for the various weeks of the December term, 1926, of this court, and the regularly drawn *Page 224 grand jury was impaneled at the December term according to the provisions of the statutes." This bill, so qualified, was accepted without objection.
The opinion is further expressed that on the facts upon which the appellant relied — a motion to quash the indictment — was not the proper remedy even though the appointment of the jury commission was irregular. If vulnerable, the attack should have been by challenge to the array. Appellant was in jail, charged with the present offense, at the time the grand jury was organized. His attack upon the indictment is not that there were no jury commissioners appointed and no grand jury drawn by them, but that the selection of the grand jury was by a jury commission irregularly appointed. The situation does not seem to bring it within the purview of Hunter's case, 299 S.W. 437. In that case there was no attempt at the previous term to appoint jury commissioners to select a grand jury, and the failure to do so was not for good cause.
Attached to the argument on motion for rehearing is what purports to be some excerpts from the minutes of the September term of court, 1926. They are not a part of the record in the present appeal. Upon appeal, there can be considered only such facts as were before the trial court and appear in the record on appeal.
The motion for rehearing is overruled.
Overruled.