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6. De facto judgeA de facto officer is one who acts under color of authority, and is otherwisequalified to hold office, but who has not completed all conditions precedent,suchas taking an oath or filing a bond.[FN29] When a judge holds office under color of title by appointment, his or her official acts are conclusive and cannot beattacked by third parties in a collateral proceeding.[FN30] If a judge performs theduties of office under color of title and with the acquiescence of the public, he or sheis,at least, a de facto judge, whose acts are valid.[FN31] This is the case wheretheincumbent lacks the prescribed qualifications and is incapable of holdingoffice,[FN32] or was appointed after a void order of removal of the regularlyelected judge.[FN33]While, generally, one failing to take the oath of office as prescribed by thestateconstitution cannot become either a de jure or a de facto judge, and the judge'sacts as such are void,[FN34] the de facto officer doctrine has beenspecificallyapplied to a challenge to the acts of a visiting judge for failure to take theconstitutional oaths.[FN35]Illustration:A former district judge and former justice on the court of appeals whocomplied withthe statutory requirements for assignment as a senior judge after hisretirement wasat least a de facto officer, whose acts could not be attacked collaterally butrather could be challenged only by the state in a quo warranto proceeding,notwithstanding the judge's failure to take the constitutionally required oathsof 
 
office upon accepting assignment as a senior judge. This failure did notrender his judgment nisi forfeiting a $40,000 bail bond void even though the judgetook hislast oath of office as a judge when he became justice of the appellate courtandthat term of office had expired upon his retirement.[FN36]A putative judge has no authority over the proceedings and such judge'sactions area nullity if the judge does not possess the prescribed constitutional or statutoryqualifications to act in that capacity, or if such judge is disqualified from a particular case because of a relationship to the case or a party. If a judge isqualified and not constitutionally or statutorily disqualified, the judge'sactionsare not void due to procedural irregularities in the manner in which the casecame before that individual, although the proceedings may be voidable.[FN37]Under the rule that there may be no de facto officer where there is no lawfuloffice, one assuming to act as the judge of a court which has been abolishedis nota de facto judge.[ FN38]CUMULATIVE SUPPLEMENTCases:When a judge is holding office under the color of law and discharging hisduties of office, his acts are conclusive as to all parties and cannot be attacked in anappeal, even though the person acting as judge lacks the necessaryqualificationsand is incapable of legally holding the office. State v. Newton, 158 S.W.3d582
 
(Tex. App. San Antonio 2005), reh'g overruled, (Jan. 27, 2005) and petitionfor discretionary review filed, (Apr. 7, 2005).When judge is holding office under color of title by appointment anddischargingduties of office, his acts are conclusive as to all persons interested andcannot beattacked in collateral proceeding, even though person acting as judge lacksnecessary qualifications and is incapable of legally holding office. Espinosav.State, 115 S.W.3d 64 (Tex. App. San Antonio 2003).The presumption of the regularity of trial court judgments and proceedingsappliesto appellate challenges of visiting trial court judges for alleged failures totaketheir constitutionally required oaths. Tex. Const. art. XVI § 1(c) ,(d) (2000).Murphy v. State, 95 S.W.3d 317 (Tex. App. Houston 1st Dist. 2002), reh'goverruled,(Nov. 1, 2002) and petition for discretionary review refused, (Apr. 2, 2003).[END OF SUPPLEMENT]--------------------------------------------------------------------------------[FN29] Prieto Bail Bonds v. State, 948 S.W.2d 69 (Tex. App. El Paso 1997),reh'goverruled, (July 23, 1997) and petition for discretionary review granted,(Jan. 28,1998).As to de facto special judges, see § 52.As to de facto officers, generally, see Tex. Jur. 3d, Public Officers andEmployees.
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