(concurring).
I can not agree to the holding of the majority that under *588the facts here presented the right of the attorneys of the county to elect a special judge was conferred because the regular judge failed to hold court as provided by Art. 1934, R.C.S.
All the evidence shows that the regular judge did not fail or refuse to hold court. He was in his office and around the courthouse at the time of the election as well as at the time of the trial.
Under the facts as here presented and under the holding of my brethren, any time the lawyers in court caught the regular judge off the bench or not in the courtroom they could elect a special judge and effectually oust the regular judge from the performance of his duties as judge.
The facts, here, did not warrant the election of a special judge for the reason stated in the order of election.
I agree to the affirmance of the conviction, however, upon the legal proposition that having* failed to attack the election of the special judge but having submitted to trial by that judge the appellant could not complain, after verdict, that the special judge was not authorized to act. Johnson v. Willacy County Water Control & Improvement Dist., 136 S.W. 2d 877; Shultz & Bro. v. Lempert, 55 Texas 273; Bailey Bros. v. Lochman, 241 S.W. 626.
Here, as reflected by the order entered, the election of the special judge was had because of the failure of the regular judge to hold court as authorized by Art. 1934 R.C.S., supra. There was no suggestion in that order or elsewhere in the record that the special judge was serving either due to the disqualification of the regular judge or by agreement of the parties.
Under such circumstances, the appellant was not warranted in agreeing, by his failure to object, to be tried by the special judge and then after conviction challenge the right of the special judge to act because his election was not authorized.
For the reasons stated, I concur in the affirmance of this case.