dissenting.
I respectfully dissent. I agree that the evidence is sufficient; however, I would sustain appellant’s fourth and fifth grounds of error and reverse and remand. Before addressing the reasons why I would reverse and remand, I must express my disagreement with certain of the majority’s holdings pertaining to the magistrate practice.
The majority’s first erroneous holding
I cannot agree with the majority’s holding that “we see no reason why [appellant] may not waive a hearing before the district judge and consent to determination of the *890matter by a magistrate.” The waiver reads:
NOW COMES, William Wade Allen, defendant in the above numbered and titled cause and freely and voluntarily waives his right to have said cause heard by a District Judge, and requests that said cause be heard and determined by a Magistrate, having been informed of his right to have this matter heard by the District Judge and defendant understanding this right and the possible consequences of it.
To my mind, appellant’s waiver fails to reach as far as the majority would have it do. Pertinent to appellant’s fourth ground of error, appellant’s waiver cannot relieve the district judge from making a proper order of referral to the magistrate. Pertinent to appellant’s fifth ground of error, appellant’s waiver cannot relieve the magistrate from making written findings, conclusions and recommendations to be submitted to the district judge.
Moreover, appellant waived “his right to have said cause heard by a district judge,” and requested “that said cause be heard and determined by a magistrate.” (emphasis added). Thus, appellant agreed that the merits of his extradition could be decided by a magistrate. Such a procedure is contrary to TEX.REV.CIY.STAT.ANN. art. 1918c, § 4(b) (Vernon Supp.1985), which provides “[i]n no event may a judge refer to a magistrate a criminal case permitting the magistrate to preside over a trial on the merits, either with or without a jury.” In my view, the phrase “trial on the merits” as used in section 4(b) includes the merits of appellant’s extradition. Therefore, the magistrate would have no right in this extradition case to order appellant’s extradition to a sister state. Certainly, I recognize that an application for writ of habeas corpus in an extradition proceeding does not constitute a trial on the merits of the criminal accusations against an accused in a sister state. Ex parte Scarbrough, 604 S.W.2d 170, 172-73 (Tex.Crim.App.1980).
Furthermore, appellant cannot be bound by an agreement to be tried by a tribunal created contrary to the constitution of the State of Texas. Appellant did so when he agreed that his case could “be heard and determined by a magistrate.” By holding appellant bound by the language of the waiver, the majority applies article 1918c in an unconstitutional manner.
A court is an instrumentality of sovereignty, the repository of its judicial power, with authority to adjudge as to the rights of person or property between adversaries. The presence of a judge or judges is necessary as an essential element of a court. A “court” was defined by Bacon to be “an incorporeal being, which requires for its existence the presence of the judges or a competent number of them.”
Mengel Box Co. v. Fowlkes, 135 Tenn. 202, 186 S.W. 91, 92 (1916). I conclude that the State of Texas, as sovereign, has placed none of its judicial power, with authority to adjudge as to the rights of person or property between adversaries, in magistrates appointed pursuant to article 1918c. The State of Texas, as sovereign, created district courts, and provided for judges of those courts, in article V, sections 1 and 7 of its constitution and placed its judicial power in all criminal cases of the grade of felony in those district courts. TEX. CONST, art. V, § 8. The constitution vests no judicial power of the State of Texas in the magistrate to order appellant’s extradition to a sister state. Therefore, the magistrate had no power to determine appellant’s case.
What I said in my concurring opinion in Kelley v. State, 669 S.W.2d 329, 333 (Tex.App.—Dallas 1983), rev’d, 676 S.W.2d 104 (Tex.Crim.App.1984), applies in the present case:
In my view [what we have in the present case] is a “rubber stamp” judicial system which is not permitted under the Constitution of this state. I cannot accept a magistrate system in which district judges are permitted to “sign off” on their judicial powers exercised by a number of court appointed surrogates. Such a system is one in which district courts *891create other district courts and appoint the judges of those courts. If that is the interpretation to be made of TEX.REY. CIV.STAT.ANN. art. 1918c (Vernon Supp.1982-1983), then it is unconstitutional on its face under Article V, §§ 1, 7 and 8 of the Constitution of Texas.
Indeed, the form waiver executed by appellant in the present case evidences the fact that district court judges are creating other district courts and appointing the judges of those courts. I refer to the waiver executed by appellant in which he requested “that said cause be heard and determined by a magistrate.” (emphasis added). In my view, when the district court provides a person with the form of waiver used in the present case, it cannot be disputed that the district court has authorized the transfer of the case to another “court.” Magistrate’s are not courts. Magistrates are surrogates of district court judges appointed to assist district court judges in certain limited matters. Kelley v. State, 676 S.W.2d at 107. Consequently, I cannot condone a system in which district court judges convert an assistant into a court contrary to the constitution of this state. Contrary to the majority’s holding that “we see no reason why [appellant] may not waive a hearing before the district judge and consent to determination of the matter by a magistrate,” I would hold that appellant’s waiver did no more than acquiesce in the district judge’s exercise of whatever power, if any, the district judge had to make a referral.
The majority’s second erroneous holding
I cannot agree with the majority’s holding that a magistrate’s findings “need not be expressed in writing.” Article 1918c, section 7(a), provides that “[o]n the conclusion of the proceedings, the magistrate shall transmit to the referring court all papers relating to the cases involved, together with the findings, conclusions, orders, recommendations, or other actions taken.” The phrase “together with the findings, conclusions, orders, recommendations, or other actions taken” means written documents to me. Presumably, the majority permits the magistrate’s findings, conclusions, orders and recommendations to be made orally by the magistrate and thereafter further orally conveyed to the district judge. To my mind, that is a frightening manner in which to make a record in a criminal case. In this connection, I point to the observations of the court of criminal appeals in footnote five in Kelley v. State, 676 S.W.2d 104 (Tex.Crim.App.1984):
The form motions, orders, and judgment which were used in this case have created confusion. We caution the bench and bar if they are to continue to use these forms, as economy will probably dictate, that they pay attention to what is included therein. We also note that Art. 1918c, Sec. 7, clearly requires that the magistrate transmit all the papers relating to the case to the district judge for action. To avoid confusion in the future, it would be advisable for Dallas County to develop a clear mechanism for doing so and for noting the recommendations and findings of the magistrate along with the referring court’s specific adoption or revision of same, [emphasis added].
676 S.W.2d at 108. The majority’s opinion in the present case, however, does nothing but postpone Kelley’s plea that Dallas County develop a clear mechanism for transmitting papers from magistrate to judge and “for noting the recommendations and findings of the magistrate.” (emphasis added). A writing would constitute a more suitable means of noting a finding than the oral communication approved by the majority.
The reasons requiring reversal and remand
With those comments expressed, I turn to the reasons I would reverse and remand. Although I find merit in all of appellant’s arguments under his four grounds of error challenging disposition of the present case by a magistrate, I address only appellant’s fourth and fifth grounds of error.
*892In his fourth ground of error, appellant complains of the trial court’s failure to comply with the requirements of article 1918c, section 4(c). That section provides that “[t]o refer a case to a magistrate, the judge shall issue an order of referral specifying the duties of the magistrate.” The trial court in the present case made only the following referral:
The above and foregoing waiver, consent, and request for referral to a Magistrate having been presented to me, same is hereby in all things approved. This cause is hereby referred to a Criminal District Magistrate of Dallas County, Texas pursuant to Article 1918c V.A.C.S.
Therefore, the order fails to specify the duties of the magistrate as required by statute. I recognize that appellant waived “his right to have said cause heard by a district judge, and requests that said cause be heard and determined by a magistrate.” I cannot agree, however, that such a waiver includes a relinquishment of the right to have a district judge follow the statutory law of this state. For additional emphasis, I repeat the observation of the court of criminal appeals in footnote five in Kelley:
The form motions, orders, and judgment which were used in this case have created confusion. We caution the bench and bar if they are to continue to use these forms, as economy will probably dictate, that they pay attention to what is included therein. We also note that Art. 1918c, Sec. 7, clearly requires that the magistrate transmit all the papers relating to the case to the district judge for action. To avoid confusion in the future, it would be advisable for Dallas County to develop a clear mechanism for doing so and for noting the recommendations and findings of the magistrate along with the referring court’s specific adoption or revision of same, (emphasis added).
676 S.W.2d at 108. I read the footnote as a warning to district judges that if they use magistrates under article 1918c “that they pay attention to what is included [in their orders].” In the present case, the trial court failed to pay attention to what was included in the purported order of referral. The failure to pay attention resulted in omission of the required specifications of the duties of the magistrate. To my mind, appellant was entitled to have the proceedings conducted by the magistrate strictly in accordance with duties specified by the district judge. No duties were specified. Thus, the magistrate was free to conduct the proceedings as he wished. Article 1918c does not permit magistrates to conduct proceedings before them as they wish. The court of criminal appeals opinion in Kelley issued on July 3, 1984. The district judge signed the purported order of referral in the present case on February 6, 1985. Given this time interval, I can only conclude that the trial court refused to heed Kelley’s admonition to pay attention. Thus, the magistrate acted absent a specification of his duties. Therefore, the magistrate’s actions were not permitted by law. Consequently, I would sustain appellant’s fourth ground of error and reverse and remand.
In his fifth ground of error, appellant complains of the trial court’s order authorizing extradition because it is not based upon any findings by either the magistrate or district judge. First, the matter of findings by the district judge. With respect to any perceived proceedings before the district judge, the record contains a form of judgment which reads in pertinent part:
On this, the 6th day of February, A.D., 1985, came on to be heard the application for the Writ of Habeas Corpus against William Wade Allen, and the Respondent, Jim Bowles, Sheriff of Dallas County, Texas, having made due return on said Writ of Habeas Corpus herein served upon him and having produced before me the person of the said William Wade Allen, I proceeded to hear said application and after having examined the Writ and return of said Respondent, Jim Bowles and all papers and documents attached thereto, and having heard the testimony offered on both sides, I am of the opinion that the said William Wade Allen, is legally held in custody and under the re*893straint of his liberty by the said Respondent, Jim Bowles, Sheriff.
Thus, the record reflects that the bench and bar also failed to “pay attention to what is included in [the judgment].” The judgment recitals indicate that the trial judge and not the magistrate heard this case from beginning to end. See Ex parte Stacey, 682 S.W.2d 848 (Tex.App.—Dallas 1984, pet. granted) and my dissent. It is difficult to understand why it is so hard to draft a final judgment reflecting a magistrate referral and adoption of the magistrate’s findings, conclusions and recommendations.
On the record in the present case, I can no more agree that the district judge conducted a hearing on the application for writ of habeas corpus from beginning to end than I could in Ex parte Stacey, 682 S.W.2d at 351. In the present case, as in Stacey, there is the identical showing in the record negating the presumption of regularity of the proceedings before the district judge. Here, as similar to Stacey, the record contains only one court reporter’s transcript of the proceedings. That transcript begins with these words:
BE IT REMEMBERED that on the 6th day of February, A.D., 1985, the above styled and numbered cause came on for trial before the HONORABLE PAUL BRAUCHLE, Magistrate sitting for the HONORABLE RON CHAPMAN, Judge of the Criminal District Court of Dallas County, Texas, and that the following is a true, accurate and complete transcript of the proceedings had:
Here, as similar to Stacey, the court reporter’s transcript ends with this certificate of the Honorable Ron Chapman, Judge of the Criminal District Court of Dallas County, Texas:
The above and foregoing Writ of Habe-as Corpus Hearing, certified by the Acting Official Court Reporter, having been presented to me, same is examined and approved as the Writ of Habeas Corpus Hearing in this cause.
Dated this 11 day of March, A.D., 1985.
/s/ Ron Chapman
Judge
Here, as similar to Stacey, the only entry on the docket sheet reads:
Feb. 6. 1985 St’s 1 (governor’s warrant) admitted without objection St’s 2 admitted without objection D1 also admitted without objection both sides rest and close Writ denied [appellant] gives notice of appeal appeal bond set at $15,000 /s/Paul Brauchle
Therefore, the court reporter’s transcript begins and ends virtually identical to the record in Stacey. Furthermore, the docket sheet entry by the magistrate is virtually the same as in Stacey. Stacey, 682 S.W.2d at 351.
Thus, in the present case, as in Stacey, the docket sheet suggests that the district court judge never conducted a hearing in this matter, never heard the application, and never heard testimony. Furthermore, in the present case, as in Stacey, the district court judge’s own certificate establishes that this proceeding was held before a magistrate. Since the transcript of proceedings and docket sheet show that the February 6, 1985, hearing was held before a magistrate, not the district court judge, the presumption that the district court judge heard the application and testimony stands rebutted. Consequently, in the present case, as in Stacey, I am unwilling to blindly accept recitals in the trial court’s judgment which would have us believe that two hearings were held in this proceeding, both being held on February 6, 1985, the first hearing being before the magistrate and the second before the district judge. In my view, the district judge used the wrong judgment form in a case heard by a magistrate. Accordingly, I am unwilling to ignore reality and treat that form as sacrosanct. To my mind, therefore, there were no proceedings and no hearing before the district judge in the present case. If there were no proceedings and no hearing before the district judge, then the district judge was incapable of making findings. It must follow that there are no findings by the district judge in the present case. Conse*894quently, the trial court’s order authorizing extradition cannot be based on findings by the district judge.
Therefore, I consider if the record contains findings by the magistrate authorizing extradition upon which the district judge could rely. My examination of the record reflects that no findings were made by the magistrate. As pointed out above, article 1918c, section 7(a), provides that “[o]n the conclusion of the proceedings, the magistrate shall transmit to the referring court all papers relating to the cases involved, together with the findings, conclusions, orders, recommendations, or other actions taken.” In my view, that language requires that the magistrate make written findings, conclusions and recommendations and transmit these findings, conclusions and recommendations to the district judge for his use and possible action. No required findings were made by the magistrate. Consequently, the trial court’s separate order also rendered February 6, 1985, “that the court specifically adopts and ratifies the actions taken by Magistrate Paul Brauchle on behalf of this court in compliance with Article 1918c V.A.C.S.” can have no validity. The order can have no validity because there are no written findings, conclusions and recommendations upon which the district judge could adopt and ratify. Accordingly, the trial court’s order authorizing extradition cannot be based upon findings by the magistrate.
It follows, and I would so hold, that the trial court’s order authorizing extradition must be reversed because the order is not based upon findings by either the magistrate or the district judge. Therefore, I would sustain appellant’s fifth ground of error and reverse and remand.