OPINION
ON STATE’S SECOND MOTION FOR REHEARING
W. C. DAVIS, Judge.On original submission, the order of the trial court revoking appellant’s probation was set aside and the cause remanded. French v. State, 546 S.W.2d 612 (Tex.Cr.App.). The State’s First Motion for Rehearing was overruled by written opinion with Judge Douglas dissenting. The State has now filed a Second Motion for Rehearing which has been granted and we shall again consider the question presented.
The majority of this Court now holds that a temporary judge of a home rule city is at least a de facto judge since Article 1196(a) V.A.C.S. does not expressly prohibit the appointment. But there is another reason why this case must be reversed.
The power of the Legislature to create municipal courts is derived from Art. V, Sec. 1, Tex.Const., giving the Legislature power to create such courts as are not provided by the Constitution as the Legislature deems necessary to establish. Art. 1196(a), V.A.C.S. provides for municipal judges in home rule cities, such as the City of Hurst.
Art. XVI, Sec. 1 of the Constitution, as amended in 1956, provides for the oath of office to be taken by both elected officers and all other appointed officers, before they enter upon the duties of their offices, (emphasis added)
In this case, the record reveals the following testimony of Raymond A. Hargrave, Jr., who had been appointed an “alternate” municipal judge by the mayor of Hurst, pursuant to an ordinance of the City of Hurst:
“Q. Do you take an oath of office?
A. No, sir, the City Attorney has advised us that the Charter does not require an oath of office.”
It has long been held in this State that a “Special Judge has no authority to act until he has taken the oath of office, [and that] *939until he has taken the oath, his acts are a nullity.” Baker v. State, 159 Tex.Cr.R. 130, 261 S.W.2d 593 (1953); Garza v. State, 157 Tex.Cr.R. 381, 249 S.W.2d 212 (1952); Enloe v. State, 141 Tex.Cr.R. 602, 150 S.W.2d 1039 (1941); and Davis v. State, 157 Tex.Cr.R. 146, 247 S.W.2d 392 (1952).
The dissent would hold that since Judge Hargrave was a de facto judge he had every right to act as such. We are not here dealing with the rights of a de facto judge but, rather, his right to act in that capacity as a judge, which right depends upon the taking of the oath of office prescribed by the Constitution, constituting a condition precedent to his right to act in that capacity. Brown v. State, 156 Tex.Cr.R. 32, 238 S.W.2d 787 (1950).
We hold that without the taking of the oath prescribed by the Constitution of this State, one cannot become either a de jure or de facto judge, and his acts as such are void.
The search warrant under which appellant’s residence was searched and the evidence seized, having been issued by one who had not taken the oath of office, was therefore void and the evidence seized thereunder not admissible.
The State's Second Motion for Rehearing is overruled.
VOLLERS, J., not participating.