dissenting.
The majority holds that Section 12C-3 of the Hurst City Ordinances, which provides for the appointing of additional temporary (alternate) municipal judges, conflicts with Article 1196(a), V.A.C.S., and is thus void under the authority of Article 11, Section 5 of the Texas Constitution. The majority further holds that the issuance of a search warrant in this cause by R. A. Hargrave could not be upheld as the act of a de facto *936magistrate.1 We should hold that Har-grave was a de facto officer and that the issuance of the search warrant was valid.
The State contends that acts of the alternate municipal judges in the City of Hurst are not void. The majority relies on Germany v. State, 109 Tex.Cr.R. 180, 3 S.W.2d 798 (1928). In Germany, this Court addressed the distinction between de jure and de facto officers and stated:
“Two persons cannot, at the same time, be in the actual occupation and exercise of an office for which the law provides only one incumbent. Thus an officer de jure and an officer de facto cannot be in possession of the same office at the same time, nor can two different officers de facto be in an office for which the law provides only one incumbent.”
The principle enunciated in Germany that two persons cannot simultaneously be in the actual occupation and exercise of an office for which the law provides only one incumbent is inapposite to the instant case. Section 12C-3 of the Hurst City Ordinances provides for the appointment of additional judges to the municipal court and, thus, provides for the appointment of more than one incumbent to the office of municipal judge.
It is fundamental that a judge de facto is one acting under color of authority and who is regarded as exercising the functions of the judicial office he assumes. Ball v. United States, 140 U.S. 118, 11 S.Ct. 761, 35 L.Ed. 377 (1891); McDowell v. United States, 159 U.S. 596, 16 S.Ct. 111, 40 L.Ed. 271 (1895); Ex parte Ward, 173 U.S. 452, 19 S.Ct. 459, 43 L.Ed. 765 (1899); Snow v. State, 134 Tex.Cr.R. 263, 114 S.W.2d 898 (1937); Craig v. State, 171 Tex.Cr.R. 256, 347 S.W.2d 255 (1961). The rules governing this concept are contained in 48 C.J.S. Judges § 2a(2) (1947):
“A judge de jure is one who is exercising the office of a judge as a matter of right. A judge de facto is one acting with color of right and who is regarded as, and has the reputation of, exercising the judicial function he assumes; he differs, on the one hand, from a mere usurper of an office who undertakes to act without any color of right; and, on the other, from an officer de jure who is in all respects legally appointed and qualified to exercise the office. In order that there may be a de facto judge there must be an office which the law recognizes, and where a court has no legal existence there can be no judge thereof, either de jure or de facto. There cannot be a de facto judge when there is a de jure judge in the actual performance of the duties of the office. Mere possession of the office is not sufficient to make the incumbent a de facto judge; to constitute him a de facto judge he must have color of title or his possession must have been acquiesced in by the public generally.
“Under these rules a judge who holds over after his term has expired may be a de facto judge. An unconstitutional statute is sufficient to give color of right or authority to elect or appoint a judicial officer, and a person elected or appointed by authority of such a statute is a de facto judge. In order to constitute a judge de facto, it is not necessary that he have color of appointment from a power having ‘actual’ authority to make the appointment, but it is sufficient that he has been appointed by some power having ‘color’ of authority to make it. . . . ” (Footnotes omitted) (Emphasis added).
These rules have been consistently followed in this State. See 33 Tex.Jur.2d, Judges, Section 12. In Brown v. State, 42 Tex.Cr.R. 417, 60 S.W. 548, 549 (1901), this Court defined the de facto officer doctrine as follows:
“A de facto officer is one who is in possession of an office and discharging its duties under color of authority, by which *937is meant authority derived from election or appointment, however irregular or informal, so that the incumbent be not a mere volunteer.”
In Anderson v. State, 149 Tex.Cr.R, 423, 195 S.W.2d 368 (1946), the defendant was convicted of driving while intoxicated. He contended on appeal that the act purporting to create the office of criminal district attorney in McLennan County was invalid as a special law in violation of Article 3, Section 56 of the Texas Constitution. This Court held that if the act were unconstitutional such act would not inure to the benefit of defendant because the criminal district attorney was a de facto officer. The Court then stated:
“While it is true, as a general rule, that in order for one to be a de facto officer there must be a de jure office, yet there are well-recognized exceptions to that rule. One of these is that where an office is provided for by an unconstitutional statute, the incumbent, for the sake of public policy and public justice, will be recognized as an officer de facto until the unconstitutionality of the Act has been judicially determined. 43 Am.Jur., Public Officers, Sec. 475, and authorities there cited.” (Emphasis added).
The de facto officer doctrine is intended to protect the public and individuals where they may become involved in the official acts of persons discharging the duties of an office. Ex parte Tracey, 93 S.W. 538 (Tex.Cr.App.1905); Germany v. State, supra. Thus, where a statute is judicially determined to be unconstitutional, all acts performed by an officer under the authority of the statute prior to such determination are deemed to be valid and binding. Anderson v. State, supra.
This rationale was applied in the recent decision of Buckley v. Valco, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). In Buckley, the United States Supreme Court concluded, among other things, that most of the powers conferred by the Federal Election Campaign Act of 1971 (as amended in 1974) upon the Federal Election Commission could be exercised only by “Officers of the United States”, appointed in conformity with Article II, Section 2, cl. 2, of the United States Constitution. The Court then held that the Act violated the appointments clause and, thus, that these powers could not be constitutionally exercised by the Commission as it was then constituted. Confronting the question whether the past acts of the Commission were void, the Court stated:
“It is also our view that the Commission’s inability to exercise certain powers because of the (unconstitutional) method by which its members have been selected should not affect the validity of the Commission’s administrative actions and determinations to this date, including its administration of those provisions, upheld today, authorizing the public financing of federal elections. The past acts of the Commission are therefore accorded de facto validity, just as we have recognized should be the case with respect to legislative acts performed by legislators held to have been elected in accordance with an unconstitutional apportionment plan. Connor v. Williams, 404 U.S. 549, 550-551, 92 S.Ct. 656, 658, 30 L.Ed.2d 704 (1972). See Ryan v. Tinsley, 316 F.2d 430-432 (C.A.10 1963); Schaefer v. Thomson, 251 F.Supp. 450, 453 (D.C., Wyo. 1965), aff’d 383 U.S. 269, 86 S.Ct. 929, 15 L.Ed.2d 750 (1966). Cf. Richmond v. United States, 422 U.S. 358, 359, 95 S.Ct. 2296, 2298, 45 L.Ed.2d 245 (1975) (Brennan, J., dissenting).” 96 S.Ct. at 693.
A judge de facto is a judge de jure as to all parties except the State. Snow v. State, supra; Marta v. State, 81 Tex.Cr.R. 135, 193 S.W. 323 (1916). His right to hold his office can be questioned only in a direct proceeding instituted for that purpose in a court of competent jurisdiction or in a direct quo warranto proceeding. It cannot be attacked in a collateral proceeding even though the person acting as judge is legally incapable of holding the office. Craig v. State, supra; Snow v. State, supra. As this Court stated in Snow, “[i]n no event can a de jure judge, or a de facto judge claiming the office by color of appointment, and *938actually performing the duties of such officer, be ousted, or his official acts successfully challenged, except in a direct proceeding to which he is a party. Such a proceeding could not be filed in this court originally, and could not be brought to this court by appeal because such an action would be a civil proceeding to test the right of an incumbent to hold a civil office of which this court has no jurisdiction.” 114 S.W.2d at 901 (Emphasis added).
The United States Supreme Court is in accord. In Ex parte Ward, supra, petitioner was tried and convicted in the court presided over by Judge Edward Meek. He challenged the conviction by habeas corpus on the ground that Meek’s appointment to the office was invalid because the appointment had not been confirmed by the Senate. The Court rejected the contention and stated:
“The result of the authorities is that the title of a person acting with color of authority, even if he be not a good officer in point of law, cannot be collaterally attacked; and as Judge Meek acted, at least, under such color, we cannot enter on any discussion of propositions involving his title to the office he held.” 19 S.Ct. at 460.
Buckley v. Valco, supra, reveals that the de facto officer doctrine is alive and well. We thus reaffirm the definition set forth in Brown v. State, supra.
In the instant case, R. A. Hargrave has unquestionably been holding the office of alternate municipal judge under color of authority by appointment and has been discharging the duties of such office. We should hold that, even though Section 12C-3 of the Hurst City Ordinance is invalid, R. A. Hargrave was a judge de facto and that his official acts were valid and binding on all interested persons, including appellant. Such acts cannot be collaterally attacked in this appeal.
The State’s motion for rehearing should be granted and the judgment should be affirmed.
ROBERTS, J., joins in this dissent.. The original opinion is reported in 546 S.W.2d 612 (Tex.Cr.App.1976). The State’s motion to withdraw the mandate was granted.
Appellant attacks the Court’s authority to recall the mandate. Since the original opinion was handed down at the present term, we have the authority to withdraw it. Deramee v. State, 379 S.W.2d 908 (Tex.Cr.App.1964).