concurring.
I concur with the majority’s holding that the judgment of the trial court must be reversed and the cause be remanded for a new hearing. Unlike the majority, I feel compelled to address the constitutional issue raised by the applicant. I agree with the majority’s holding that the record affirmatively shows that the trial court failed to review or adopt the magistrate’s actions. Kelley v. State, 676 S.W.2d 104 (Tex.Crim.App.1984). Further, the trial court confesses its judicial non-action in the supplemental transcript, when it certified that, “Upon transmittal, [from the magistrate to the trial court] the Clerk of this Court prepared and issued the order adopting actions of the Magistrates [sic].”
The majority overlooks the authorized judicial non-action procedure contained in Section 54.312(b) of the Dallas Magistrate’s Act which clearly allows magistrate’s findings, conclusions, orders, recommendations, or other action taken to become a legally binding court decree:
If the court does not modify, correct, reject, reverse, or recommit an action of the magistrate, the action becomes the decree of the court.
I would hold that unless the constitutionality of Section 54.312(b) is addressed, this statutorily sanctioned procedure would authorize trial court inaction in adopting magistrates actions as a matter of law, thereby requiring this case to be affirmed.
The Dallas Magistrates Act does not specifically require the district court judge to review the actions taken by the magistrate. Indeed, section 54.312(b) affirmatively avoids any requirement that the district court judge review the magistrate’s actions and allows the magistrate to act not merely as a fact finder to assist the district court judge, but as the ultimate decision maker in the proceeding.
The Dallas Magistrates Act was patterned after the federal Magistrates Act, 28 U.S.C. §§ 631-639 (Supp.1986), and the respective constitutional values at issue are virtually the same. There is one significant distinction however: Section 636(b)(1) of the federal Magistrates Act sets forth a detailed process by which the non-prevailing party may file objections to the magistrate’s findings and recommendations. A judge of the federal court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The federal judge may also receive further evidence or recommit the matter to the magistrate with instructions. Against this statutory back-drop, the Unit*769ed States Supreme Court has upheld the federal Magistrates Act. The Supreme Court held that the federal Magistrates Act does not violate article III of the United States Constitution, because the statutory scheme includes “sufficient procedures” for federal district court review, thereby allowing the federal district judge alone to act as the ultimate decision maker. United States v. Raddatz, 447 U.S. 667, 680, 100 S.Ct. 2406, 2414, 65 L.Ed.2d 424 (1980). Stressing that federal magistrates are only empowered under 28 U.S.C. section 636 to issue proposed findings of fact and recommendations, and not to make actual determinations, the Supreme Court concluded that this limited delegation of judicial powers “does not violate Article III [of the Federal Constitution] so long as the ultimate decision is made by the district court.” Raddatz, 447 U.S. at 683, 100 S.Ct. at 2416. (Emphasis added). The responsibility to make an informed, final determination must remain with the judge. Mathews v. Weber, 423 U.S. 261, 275, 96 S.Ct. 549, 556, 46 L.Ed.2d 483 (1976).
The procedural protections which enabled the United States Supreme Court to conclude that the federal Magistrates Act is not an unconstitutional delegation of judicial power under the United States Constitution are conspicuously absent from the Dallas Magistrates Act. The latter contains no requirement that the magistrate make written findings, Ex parte Allen, 699 S.W.2d 886, 889 (Tex.App.—Dallas 1985, pet. ref d), nor does it contain a procedure by which a party is entitled to file objections to the magistrate’s findings. Moreover, through the operation of section 54.-312(b) of the Dallas Magistrates Act, no de novo review by the district court judge is required before the magistrate’s actions are adopted by the district court. Yet, I again must emphasize, the magistrate has no authority to act at all except to make preliminary findings which, when properly reviewed by the district court, may be adopted by it. Kelley, 676 S.W.2d at 107. A superficial rubber-stamping of the magistrate’s actions by the court’s clerk falls short of proper supervision. Thus, I would hold that, as applied to appellant, section 54.312(b) of the Dallas Magistrates Act violates article V, section 1 of the Texas Constitution, because it grants the power to make final judicial determinations to one not constitutionally vested with judicial authority. I would hold, therefore, that an order entered pursuant to section 54.312(b) is void, that the judgment entered under this section should be reversed, and the cause remanded to the trial court for a new hearing.