dissenting in part, concurring in part.
Appellant was convicted of aggravated robbery by a jury and his punishment was assessed by the court at twenty (20) years’ imprisonment.
On appeal appellant, inter alia, contends his court-appointed attorney was not provided with the statutory ten day period to *401prepare for trial. See Article 26.04(b), V.A. C.C.P.
Acknowledging it had found no authority directly on point, the Corpus Christi Court of Appeals reversed “only” because this court has held that on direct appeal the provisions of Article 26.04 are mandatory, that no objection needs to be made at trial, and that no showing of harm is necessary. A new rule was fashioned. “We hold that in situations where the attorney is appointed prior to indictment, and the accused is in jail at the time of indictment, counsel must be provided with at least ten days after the indictment is served on the accused in which to prepare for trial.”
This court granted the State’s petition for discretionary review to examine the correctness of such holding. The majority now reversing the Court of Appeals and finding no merit to appellant’s contention spawns still another new rule. “We hold that an attorney previously appointed to represent an indigent accused who is confined to jail in lieu of bail on a complaint is entitled to ten days to prepare for trial from the day the indictment or information is filed with the clerk of the trial court.”
Neither rule is practicable and will raise more legal questions than either will tend to solve.1
The record reflects the offense occurred January 20,1981. On February 9,1981, the appellant executed a pauper’s oath and request for the appointment of counsel on a district court form. The form indicated appellant had been arrested on February 5, 1981 by the Donna Police Department, was still in jail, bail had been set at $25,000 and appellant was indigent. On February 11, 1981, the judge of the 92nd District Court appointed Edward M. Carmona as attorney for appellant “in the above entitled and numbered cause.”2 The form indicates the appointed counsel was notified “through secretary” on February 11, 1981 and notified by mail on February 18, 1981.
On April 29, 1981, the indictment was returned by the January Term, 1981 grand jury of the 206th District Court of Hidalgo County. A notation in the upper right-hand corner of the indictment reflects:
“Comp. # 158253
Donna Municipal Court
Donna Police Department
Court: 139.”
The docket sheet shows that the precept to serve a copy of the indictment was issued and returned executed on May 4,1981. On the same date the docket sheet reflects “(no arraignment notice necessary now. 139th to set date later).” No transfer order from the 206th District Court is shown.4 The docket sheet does not reflect any appointment of counsel for trial. On May 5, 1981, *402the cause was set for trial on May 11,1981. On the latter date several pre-trial motions were filed by attorney Carmona. A jury was selected and sworn and the trial recessed until May 15, 1981, when the actual trial commenced. Both sides announced “ready.” No issue of the ten day preparation period was raised at trial or by the motion for new trial. On July 28, 1981, after sentencing, notice of appeal was given and attorney Carmona was appointed for the purpose of the appeal.
Article 26.04, Y.A.C.C.P., 1965, reads:
“(a) Whenever the court determines at an arraignment or at any time prior to arraignment that an accused charged with a felony or a misdemeanor punishable by imprisonment is too poor to employ counsel, the court shall appoint one or more practicing attorneys to defend him. In making the determination, the court shall require the accused to file an affidavit, and may call witnesses and hear any relevant testimony or other evidence.
“(b) The appointed counsel is entitled to ten days to prepare for trial, but may waive the time by written notice, signed by the counsel and the accused.”
The purpose of the statute requiring the court-appointed counsel be given ten days from the time of appointment to the date of trial is to protect an accused’s right to have adequate time to prepare for trial. Moore v. State, 493 S.W.2d 844 (Tex.Cr.App.1973); Hamel v. State, 582 S.W.2d 424 (Tex.Cr. App.1979).
The statute and most of its forerunners have been held mandatory in absence of the required waiver. Bennett v. State, 382 S.W.2d 930 (Tex.Cr.App.1964); Crothers v. State, 480 S.W.2d 642 (Tex.Cr.App.1972), and cases there cited; Hayles v. State, 507 S.W.2d 213 (Tex.Cr.App.1974); Pollinzi v. State, 541 S.W.2d 445 (Tex.Cr.App.1976); Peters v. State, 575 S.W.2d 560 (Tex.Cr.App.1979).
Where there is a showing that there has been a failure to comply with the mandatory provisions of the statute granting ten days for appointed counsel to prepare for trial, reversal is ordinarily called for without any question of harm or prejudice. Griffin v. State, 489 S.W.2d 290 (Tex.Cr. App.1973); Houston v. State, 490 S.W.2d 851 (Tex.Cr.App.1973).5
In absence of a showing, however, that an accused was indigent, the court is under no duty to appoint counsel for him. Clark v. State, 417 S.W.2d 402 (Tex.Cr.App.1967); Young v. State, 448 S.W.2d 484 (Tex.Cr. App.1970).
Article 26.04, supra, is, of course, inapplicable where the defendant was represented by retained counsel. Harville v. State, 591 S.W.2d 864 (Tex.Cr.App.1979).
If appointed counsel and the accused have executed a waiver of the preparation period, complaint cannot be made on appeal. Hicks v. State, 487 S.W.2d 137 (Tex. Cr.App.1972); Wright v. State, 388 S.W.2d 194 (Tex.Cr.App.1965).
Article 26.04, supra, is not applicable if the record shows counsel was appointed more than ten days prior to trial. Moats v. State, 402 S.W.2d 921 (Tex.CrApp.1966); Steward v. State, 422 S.W.2d 733 (Tex.Cr. App.1968); Henry v. State, 433 S.W.2d 430 (Tex.Cr.App.1968); Young v. State, supra; Beasley v. State, 470 S.W.2d 192 (Tex.Cr. App.1971); DeLao v. State, 489 S.W.2d 613 (Tex.Cr.App.1973).
In Lamar v. State, 415 S.W.2d 926 (Tex. Cr.App.1967), this court wrote:
“The ten day provision for preparation is from the date of counsel’s appointment to the date of trial, not from the date of arraignment.”
The court rejected Lamar’s claim the time should run from the arraignment rather than the appointment.
*403Moore v. State, supra, made clear the formal appointment should be entered the date the appointment is made.
It is the actual preparation time, however, not the time of the formal appointment, that determines whether a defendant has been given the mandatory preparation time for trial provided by the statute. Moore v. State, supra; Henson v. State, 530 5.W.2d 584 (Tex.Cr.App.1975). See also Davis v. State, 513 S.W.2d 928 (Tex.Cr.App. 1974).
In McBride v. State, 519 S.W.2d 433 (Tex. Cr.App.1974), the record did not reflect when the appointment of counsel was made. There was no formal order or docket notation counsel had filed a pre-trial motion for discovery more than ten days before the trial. It was held that appointed counsel had more than ten days to prepare.
In Meeks v. State, 456 S.W.2d 938 (Tex. Cr.App.1970); Gray v. State, 475 S.W.2d 246 (Tex.Cr.App.1971); and Lee v. State, 478 S.W.2d 469 (Tex.Cr.App.1972), the records showed court-appointed counsel had had sufficient time to prepare for trial and the appointment, within ten days of trial, was made merely to allow payment for services. See also Grothers v. State, supra.
In the instant case counsel was appointed for the appellant by the district court on February 11, 1981. The aggravated robbery indictment was returned on April 29, 1981. The jury was selected on May 11, 1981. Trial commenced May 15, 1981.
In Moore v. State, supra, Tex.Cr.App., 493 S.W.2d 844, trial commenced on September 7, 1971. Counsel claimed he was not legally appointed until September 2, 1971. The court found that counsel had actually been appointed in advance of the required ten days. The court wrote:
“Judge Scofield testified at the hearing on the motion for continuance that he had appointed counsel in the case prior to the date of the indictment, July 15,1971.” (Emphasis supplied.)
As has been seen, Article 26.04, supra, is not applicable where counsel has been appointed for more than ten days prior to trial. Moore represents a case where the appointment was made by the district court prior to indictment. It is authority to overrule appellant’s contention without establishing unnecessarily a new rule for a particular fact situation with a new starting point for the ten day preparation period to begin to run.6
While I concur in the result reached, I vigorously dissent to the creation of a new rule to reach that result.
While the appellant does not contend and the Court of Appeals and today’s majority do not mention it, it may be argued, as *404Judge Teague does in his concurring opinion, that at the time of appointment (February 11,1981), the district judge was without authority to make the appointment of counsel for the appellant. The district court would not have had jurisdiction over the offense until the return of the indictment, or unless there was a waiver of indictment and the filing of a felony information. Article 1.141, V.A.C.C.P.; King v. State, 473 S.W.2d 43 (Tex.Cr.App.1971). In the instant case there was no waiver of indictment and an indictment was not returned until April 29, 1981. A district judge is also a magistrate under Article 2.09, V.A.C.C.P. There is no showing that a felony complaint was filed with the district judge invoking his jurisdiction as a magistrate. In fact, it appears a complaint had been filed in the Donna Municipal Court invoking the duties of that judge as a magistrate. See Article 2.09, supra. That judge appears to have acquired jurisdiction first as a magistrate. See Article 4.16, Y.A. C.C.P. See and cf. Ex parte Clear, 573 S.W.2d 224 (Tex.Cr.App.1978). The district judge could not have supplanted the municipal judge as the magistrate. Ex parte Clear, supra. The municipal judge, of course, did not have authority to appoint counsel for the subsequent trial of a felony in the district court.
The local practice in Hidalgo County in situations as here presented was not developed for the purpose of this record. It may well be that “early” appointments by the district court are to protect an indigent accused’s rights in all proceedings in a felony case, or to insure appointed counsel’s compensation from the county for representation prior to indictment. See and cf. Article 26.05, V.A.C.C.P.
Article 26.04, supra, does provide for the appointment of counsel “at an arraignment or at any time prior to arraignment.” Arraignment is required in all felony cases after indictment. Article 26.01, V.A.C.C.P.7 No arraignment shall take place until the expiration of at least two days after the day on which a copy of the indictment is served on the defendant, unless the right to such copy or such is waived, or unless the defendant is on bail. See Article 26.03, V.A.C.C.P.
It might be argued that the authority to appoint “at any time prior to arraignment” under Article 26.04, supra, gave the district court the authority to make the appointment of counsel on February 11, 1981, before indictment. This argument, however, may be of doubtful validity. It is true that district courts have some inherent powers as they are given general original jurisdiction over all causes of action for which a remedy or jurisdiction is not provided by the law or Constitution. Article V, § 8, Tex. Const.; 16 Tex.Jur.3d, Courts, § 94. The Interpretative Commentary to said Article Y, § 8, provides in part:
“This latter broad constitutional grant demonstrates the fact that the district court occupies the most prominent place in the trial court system, for it is the district court that is empowered to determine a particular controversy when no other tribunal has been granted authority to do so.”
A party cannot confer jurisdiction by consent, yet it is observed that it was the appellant who requested the appointment of counsel on February 9,1981 and obtained one from the district court on February 11, 1981, three months prior to trial. Surely the very purpose of Article 26.04, supra, was served. It would be absurd to reverse this case under the circumstances presented.
ODOM, TOM G. DAVIS and CAMPBELL, JJ., join this opinion..Does the rule apply where the appointment is made by a justice of the peace or municipal court judge with whom felony complaint has been filed, or does it only apply to a district court judge acting prior to the filing of an indictment or felony information? Does the rule apply where after appointment of counsel the accused is released on personal bond even though indigent, or must the accused remain in jail for the rule to have continued validity? Insuring ten days for preparation for appointed counsel may be difficult since after filing of an indictment the clerk may not act “immediately” as required by Article 25.01, V.A.C.C.P., to issue precept to serve the indictment for several days, as in the instant case, or even for longer than ten days without any notification to appointed counsel that his preparation time is running.” The majority recognizes the difficulty but feels that the accused still has ten days to file written pleadings after service of a copy of the indictment to compensate. Any confined accused, of course, may not realize the importance or need to notify appointed counsel of service of a copy of the indictment or may have limited means of communication.
. The appointment of counsel form, including the pauper’s oath, bears the cause number given the case later after the return of the indictment into the 206th District. The appointment form indicates: “In the 139 District Court of Hidalgo County, Texas.”
. The notation “Comp. 15825” is the only indication in the record that a complaint was actually filed. Yet the new rule is tied to the filing of a complaint somewhere.
. With regard to the transfer of cases in the district courts of Hidalgo County, and the authority of the judges to exchange benches, see Article 199a, § 2.002(a), § 3.034, V.A.C.S.; Article 199, § 139, § 3, V.A.C.S.
. A defendant may not, however, attack a conviction for failure to grant the ten day prepara- • tion period in absence of a showing of harm. Ex parte Meadows, 418 S.W.2d 666 (Tex.Cr. App. 1967); Ex parte Shields, 550 S.W.2d 670 (Tex.Cr. App. 1976); Thomas v. State, 571 S.W.2d 17 (Tex.Cr.App. 1978); Rabb v. State, 572 S.W.2d 718 (Tex.Cr.App.1978); Ex parte Reed, 610 S.W.2d 495 (Tex.Cr.App. 1981).
. The majority says:
“We find it utterly incongruous that ten days afforded counsel to prepare for trial be linked to the date of appointment while ten days granted an accused to prepare and filé written pleadings is tied to the date of the charging instrument if he is enlarged on bail, or to the date of the service if confined in lieu of bail on a felony offense.”
What is really incongruous is for this court to have two rules for the ten day preparation period of appointed counsel to commence — one for the fact situation here involved and one for all other court appointments. While uniformity might be desireable, what the majority overlooks is that statutes such as Article 27.12, V.A.C.C.P., allowing ten days to file written pleadings after service of indictment, have a different history and not altogether the same purpose as Article 26.04, supra, and apply whether counsel is appointed or retained or whether appellant represents himself, etc. Article 26.04, supra, is strictly limited to appointed counsel. As most members of the bench and bar are aware, the appointment of counsel in many criminal cases comes after the expiration of the time allowed by Article 27.12, supra, to file written pleadings, when it is discovered the accused is indigent and in need of counsel. Frequently counsel is appointed to replace earlier appointed counsel or retained counsel who has not been paid or for a variety of other reasons. In these cases the preparation time for appointed counsel commences with the date of appointment. This logically follows from a reading of Article 26.04, supra, itself, and certainly from the cases interpreting the statute. Today’s majority would create another rule for a particular fact situation giving us two rules. Such holding does not promote the proper administration of justice.
The majority recognizes in its footnote # 6 the difficulty inherent in its new rule of insuring ten days of preparation for appointed counsel. And well it might see footnote # 1 of this opinion.
. Article 26.02, V.A.C.C.P., provides:
“An arraignment takes place for the purpose of fixing his identity and hearing his plea.”