dissenting opinion on the State’s second motion for rehearing.
Before serving a search warrant appearing valid on its face, must a peace officer— who is duty bound to serve the warrant, Arts. 2.13 and 2.16, Y.A.C.C.P. — determine whether the magistrate issuing the warrant was appointed to his office under a valid law and determine also whether the magistrate took and filed a valid oath of office? Such requirements are unreasonable, and if prior decisions of this Court compel such a holding they should be promptly overruled.
Under the record before us Judge Har-grave was a de facto magistrate. See Ex parte Tracey, 93 S.W. 538 (Tex.Cr.App. 1905), where after discussing Cary v. State, 76 Ala. 78, it was said:
“This is a well-considered case, citing a number of authorities in its support, and we believe announces a correct rule on the subject. To the same effect, see State v. Carroll, 38 Conn. 449, 9 Am.Rep. 409; In re Radl, 86 Wis. 645, 57 N.W. 1105, 39 Am.St.Rep. 918; Erwin v. Mayor Jersey City, 60 N.J.Law 141, 37 A. 732, 64 Am.St.Rep. 584; State v. Barnard, 67 N.H. 222, 29 A. 410, 68 Am.St.Rep. 648; Ex parte Ward, 173 U.S. 452,19 S.Ct. 459, 43 L.Ed. 765; Pierce v. Edington, 38 Ark. 150. And for other cases see Amer. & Eng.Ency. of Law, vol. 8, p. 785. In all of these cases the doctrine is announced that, while a de facto officer may be one who holds under color of election or appointment, which may not be altogether regular, there is still another class who may be de facto officers without regard to any election or appointment; that is, one who exercises the duties of an office for a length of time, and acquiescence on the part of the authorities and of the public. In such cases the incumbent, regardless of his induction, may be considered a de facto officer. The whole doctrine of de facto officer is founded upon policy and necessity, in order to protect the public and individuals, where they may become involved in the official acts of persons discharging the duties of an officer, without being lawful officers. In the learned opinion of Chief Justice Butler, in State v. Carroll, supra, which appears to be considered the leading authority by all the courts, he says that a de facto officer may be such, under the following circumstances: First, without a known appointment or election but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry to submit to or invoke his action, supposing him to be the officer he assumed to be. Second, under color of a known and valid appointment or election but where the officer had failed to conform to some precedent requirement or condition, as to take an oath, give a bond, or the like. Third, *940under color of a known election or appointment, void, because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise; such ineligibility, want of power, or defect being unknown to the public. Fourth, under color of an election or appointment, by or pursuant to a public unconstitutional law, before the same is adjudged to be such.”
This Court should hold that Judge Har-grave was a de facto officer and that the search warrant which he issued was a valid warrant. I dissent.
DOUGLAS and ROBERTS, JJ., join in this dissent.