author: HENRY, Chief Justice.

text:
    STATE of Tennessee, Petitioner, v. Dale Kerr PIGFORD, Respondent.
    Supreme Court of Tennessee.
    Nov. 6, 1978.
    Brooks McLemore, Jr., Atty. Gen., Robert A. Grunow, Asst. Atty. Gen., Nashville, for petitioner.
    Tom Emerson Smith, Memphis, for respondent.
   OPINION

HENRY, Chief Justice.

The State has brought this petition for the common law writs of certiorari and supersedeas to review the action of the trial court in granting the respondent’s motion to suppress evidence on the grounds that the search warrant used to seize the drugs involved in this case was illegal because it allegedly was not issued to a proper peace officer under § 40-505, T.C.A.

The stipulated facts disclose that on February 4, 1976, B. Griggs, “a duly commissioned law enforcement officer of the Federal Government” employed by the Federal Drug Enforcement Agency, appeared before a Shelby County General Sessions Judge and executed an “affidavit for search warrant” for the residence of respondent, Dale Pigford. The warrant thus procured was addressed “To the Sheriff, Any Constable or Any Peace Officer of [Shelby] County,” and commanded the search of respondent’s premises and property. Griggs was accompanied by J. L. Hamby, a Shelby County Deputy Sheriff. Later the same day, Hamby and two other deputy sheriffs accompanied by Griggs, executed the warrant and discovered marijuana at respondent’s residence. Deputy Hamby executed the return on the search warrant.

Respondent filed a motion to suppress, in which he contended that a search warrant, otherwise regular, is rendered invalid under § 40-505, T.C.A., by its issuance to a federal officer. The trial judge sustained this contention, held the warrant invalid, and ruled that any evidence seized pursuant to it was inadmissible.

The action of the trial court has effectively ended the prosecution of this case and leaves the State with no other plain, speedy or adequate remedy. This is tantamount to the denial to the State of its day in court and results in the loss of an interest not subject to recapture. In such a case the State may properly seek review of the trial court’s action by means of the common law writ of certiorari. See State v. Johnson, 569 S.W.2d 808 (Tenn.1978); State v. Gant, 537 S.W.2d 711 (Tenn.Crim.App.1975); Taylor v. Continental Tennessee Lines, Inc., 204 Tenn. 556, 322 S.W.2d 425 (1959).

Section 40-505, T.C.A. reads, in pertinent part, as follows:

. [The magistrate] shall issue a search warrant signed by him, directed to the sheriff, any constable, or any peace officer, commanding him forthwith to search the person or place named for the property specified, and to bring it before the magistrate. (Emphasis supplied).

Using similar language, Section 40-501, T.C.A., defines a search warrant as a written order “signed by a magistrate, directed to the sheriff, any constable, or any peace officer of the county, commanding him” to search for property and bring it before the magistrate. (Emphasis supplied.) No statute restricts the class of persons to whom a warrant must be physically issued.

A further statutory requirement is that a warrant be executed by any of the officers to whom it is directed. However, no other person may execute a warrant “except in aid of such officer, at his request, he being present and acting in its execution.” § 40-508, T.C.A.

All such statutory requirements were met by the warrant in this case and by its execution. It was directed “to the sheriff, any constable, or any peace officer” of Shelby County and commanded them to execute a search of respondent’s premises. It did not direct or command Griggs to perform the search nor did Griggs alone execute the warrant. Deputy Hamby was present when application was made for the warrant; and he and two other county deputies, assisted by Griggs, searched the premises. Griggs’ participation in the search in no way'invalidates the warrant or the search so long as the provisions of § 40-508 are complied with. See also State v. Schmidgall, 21 Ariz.App. 68, 515 P.2d 609 (1973); State v. Dudgeon, 13 Ariz.App. 464, 477 P.2d 750 (1970).

The writs of certiorari and supersedeas are granted. The order of the trial court is vacated and this cause is remanded for trial.

FONES, COOPER, BROCK and HARBI-SON, JJ., concur.

      . The warrant bears the notation that it was issued to B. Griggs. This is of no relevance. The warrant was addressed to appropriate state authorities and neither commanded nor permitted any action on the part of Griggs.


source: Caselaw Access Project

author: COOPER, Justice.

license: Public Domain

text:
    STATE of Tennessee, ex rel. Charles WILSON, Dock J. Johnson, C. D. Patterson & James H. White, individually and representing a class of citizens of Macon County, Appellants, v. The CITY OF LAFAYETTE, Tennessee, Page Durham, Mayor, Britton Linville, Councilman, J. D. Knight, Councilman, Mary Tom Link, Councilman, Emogene Hunt, Councilman, Donnie Prock, Councilman, and Ronald Dycus, Councilman, Appellees.
    Supreme Court of Tennessee.
    Nov. 6, 1978.

      Arthur McClellan, Gallatin, for appellants.
    Jon A. Wells, Lafayette, Ogden Stokes, Griffith & Stokes, Susan Emery McGannon, Griffith & Stokes, Nashville, for appellees.
   OPINION

COOPER, Justice.

This is an appeal from a decree of the chancery Court of Macon County upholding the validity of the annexation ordinance adopted by the City of Lafayette, Tennessee, on March 15, 1977. Appellants, residents of the area annexed, insist the ordinance is invalid in that:

(1) It was not passed on three separate readings as required by the city charter; and

(2) The ordinance was unreasonable and unnecessary in consideration of the health, safety, and welfare of residents of the annexed areas and the City of Lafayette.

T.C.A. § 6-309 provides for the annexation of territory by a municipality by ordinance, after the adoption of a plan of services for the annexed area and after notice and public hearing on the ordinance, “when it appears that the prosperity of such municipality and territory will be materially retarded and the safety and welfare of the inhabitants and property thereof endangered,” unless the territory is annexed.

T.C.A. § 6-310 grants residents of the annexed area the right to contest the validity of the ordinance on the one ground— “whether the annexation is reasonably necessary for the welfare of the residents and property owners of the affected territory and the municipality as a whole.” City of Oak Ridge v. Roane County, Tenn., 563 S.W.2d 895 (1978). On this issue, the statute places “the burden of proving [the] annexation ordinance is reasonable for the overall well-being of the communities involved” upon the municipality.

Residents of the annexed area also have the right to contest the validity of the annexation ordinance on the ground that the legislative body of the city failed to follow the procedure set forth in its charter for the passage of city ordinances, generally. Pirtle et al. v. City of Jackson, 560 S.W.2d 400 (Tenn.1977).

As to the latter issue, the parties stipulated that the Charter of the City of Lafayette provided that:

No bill shall become an ordinance without having been passed on three several readings and no more than one reading shall be had on one day.

This procedure, or a variant thereof, is commonplace—the purpose being to prevent the passage of hasty and ill-considered legislation. Metro. Gov’t of Nashville, etc., v. Mitchell, 539 S.W.2d 20 (Tenn.1976); Biltmore Hotel Court v. City of Berry Hill, 216 Tenn. 62, 390 S.W.2d 223 (1965); Brumley v. Town of Greeneville, 38 Tenn.App. 322, 274 S.W.2d 12 (1954); 62 C.J.S. Municipal Corporations § 418; 5 McQuillin, Mun. Corp. (3rd Ed.) § 16.30. And, as is noted in the Mitchell case supra, the procedure for the enactment of an ordinance set forth in a city’s charter generally has been held to be mandatory,” but [the procedure] must be given a reasonable construction, one that does not result in frustrating the legislative process at the municipal level.” The charter provisions being mandatory, it follows that, unless, in enacting the annexation ordinance, the legislative body of the City of Lafayette substantially complied with the requisite procedure, the ordinance is invalid. See Perez et al. v. Pawtucket Redevelopment Agency et al., 111 R.I. 327, 302 A.2d 785 (1973); Hallenborg et al. v. Town Clerk of Billerica et al., 360 Mass. 513, 275 N.E.2d 525 (1971); Bill Posting Sign Co. v. Atlantic City, 71 N.J.L. 72, 58 A. 342 (1904); 5 McQuillin, Mun.Corp. (3rd Ed.) § 16-10, and cases there cited. Cf. Brumley v. Town of Greeneville, 38 Tenn.App. 322, 274 S.W.2d 12 (1954).

The legislative body of the City of Lafayette—the City Council—consists of six councilmen and the mayor. It appears from the minutes of the Council that it considered and unanimously passed Ordinance 151, the annexation ordinance, in regular meetings held on February 1, 1977, March 1, 1977, and March 15, 1977. The ordinance was read in its entirety in the February 1, 1977, meeting and a copy was given each councilman. In each of the subsequent meetings, there being no amendments to the ordinance, the mayor announced that a vote would be taken on “Ordinance 151, the annexation ordinance.” The chancellor concluded this action was sufficient to meet the charter requirements, noting “the City of Lafayette from a practical standpoint is not annexing two or three tracts of land in every meeting, the copy of the ordinance was in the hands of the councilmen, they had not only heard this read at the first meeting, but they had the opportunity to scrutinize it from the first meeting to the second meeting, to the third meeting.”

We agree with the chancellor that the City Council, in passing the annexation ordinance, substantially complied with the requisite procedure set forth in the City Charter. From our examination of the record, we have no doubt that each time the councilmen cast their vote for the passage of the annexation ordinance, they were aware of the nature of the matter embodied within the ordinance and of the effect of the ordinance, on passage.

Appellants also contend that the City failed to prove the annexation was reasonable from the standpoint of the citizens and property owners of the municipality, a part of the burden placed on the City by T.C.A. § 6-310.

Admittedly, most of the testimony was directed to showing a need for services in the annexed area and the ability of the City to furnish those services. For example, there was testimony showing the annexed area already draws heavily on the City of Lafayette for such needed services, as water, fire protection, and garbage disposal. In addition to these services there was evidence that the city will make fire protection more available, will upgrade police protection, will inspect and monitor future construction in the area, and will perform needed maintenance on roads. There also was testimony that without the services provided by the City, property in the annexed area will deteriorate, and that its deterioration will adversely affect property within the City.

Further, there was testimony that the annexed area is in need of sewers and that the need will increase as population increases in the area. Even now, residents of the annexed area and of the city are exposed to a potential health hazard from wells in the annexed area contaminated by septic tank flow. Also, a potential health hazard was shown to exist in a part of the city where the septic tank is the only way to disperse sewage. The City of Lafayette has taken affirmative steps to alleviate the health hazard within its city limits by the construction of sewers. Engineering studies have been made, plans have been drawn and application has been filed with the Environmental Protection Agency for necessary funding. The City’s need for sewers has resulted in it being given a “top priority for funding” in the State of Tennessee. The plan of services for the annexed area also calls for the construction of sewers as part of the on-going efforts of the City to protect the health of its citizens and those in the annexed area. We think this evidence clearly demonstrates that the annexation was logical and reasonable and to the best interest of both the citizens and property owners of the city and of those in the annexed area.

Decree affirmed. Costs incident to the appeal are adjudged against the appellants and their surety.

HENRY, C. J., and FONES, BROCK and HARBISON, JJ., concur.


author: BROCK, Justice.

text:
    William M. CHAPMAN, Appellant, v. Hattie L. KING and husband, James W. King, Appellees.
    Supreme Court of Tennessee.
    Nov. 6, 1978.

      Robert B. Pyle, Nashville, for appellant; White & Pyle, Nashville, of counsel.
    Allan D. Kerns, Dickson, for appellees.
   OPINION

BROCK, Justice.

This is an action for damages for the wrongful death of Shirley Ann Vanderpool Chapman who allegedly was run over by an automobile driven by the defendant, Hattie L. King, thereby receiving injuries from which she died on or about September 7, 1974.

I

The action was begun by the filing of a complaint by Mr. & Mrs. Robert Van-derpool who alleged that they were the parents of the deceased, Shirley Ann Van-derpool Chapman. The complaint was incorrectly styled by designating the plaintiff as “Shirley Ann Vanderpool, Deceased, by next friend Mr. & Mrs. Robert Vanderpool, father and mother, etc.” However, in Section 8 of the complaint, Mr. & Mrs. Vander-pool allege that they are the parents of Shirley Ann and that they have suffered great monetary damages “by reason of her wrongful death.”

There can be no doubt that the complaint is in improper form and is in need of extensive amendment. However, complying with the mandate of Rule 8.06 of the Tennessee Rules of Civil Procedure that “all pleadings shall be so construed as to do substantial justice,” we are of the opinion that the complaint should be construed as one asserting an action for damages for wrongful death by Mr. & Mrs. Vanderpool as the parents and next of kin of the deceased, Shirley Ann Vanderpool Chapman. Cf. Walkup v. Covington, 18 Tenn.App. 117, 73 S.W.2d 718 (1933). The parties and the trial court have so considered it.

The complaint was filed on August 22, 1975, but there was no response from the defendants until October 1,1976, when they filed a motion to dismiss the complaint or, in the alternative, to strike certain portions thereof. The motion to dismiss asserted:

“That no right of action survives for the death sued for in favor of the plaintiffs, Mr. & Mrs. Robert Vanderpool, and to the contrary the right of action, if any passed to the surviving lawful husband of the deceased, the husband being William Moore Chapman, pursuant to T.C.A. 20-607 as amended.”

The motion further alleged that a divorce action had been filed by the decedent, Shirley Ann Vanderpool Chapman, against William Moore Chapman in the Circuit Court of Davidson County but that the same had been dismissed, leaving the parties in a married status at the time of Shirley’s death. The motion also alleged that the complaint failed to state a cause of action upon which relief could be granted.

On November 4, 1976, the trial judge entered an order dismissing the complaint upon the ground that “. . . the right of action, if any, passed to the surviving husband of the decedent, Shirley Ann Van-derpool, pursuant to T.C.A. § 20-607 as amended, rather than to Mr. & Mrs. Robert Vanderpool, the plaintiffs herein, and that this cause should be dismissed.”

Nine days later, on November 13, 1976, the appellant, William M. Chapman, filed a motion in the action whereby he sought to be substituted as plaintiff in his capacity as surviving husband of the decedent or as the administrator of her estate. On May 3, 1977, the trial court overruled this motion without stating any reasons therefor except “. . . this motion is not well taken and should be denied.”

It appears, however, that the ground for denial of the motion was that the statute of limitations of one year had run prior to its filing. Thus, prior to its order of dismissal on November 4, 1976, the court entered an order on October 11, 1976, reciting that the court had heard arguments on October 8, 1976, upon the motion of the defendants to dismiss the complaint and concluding that “. . . from the entire record the court is of the opinion that counsel for each of the parties shall have until October 18, 1976, to submit to the court briefs regarding whether or not the husband of the deceased can at this time be substituted in place of the plaintiffs, Mr. & Mrs. Robert Vanderpool, in this action.” This order reserved action upon the motion to dismiss and granted the parties ten days in which to submit briefs to the court.

II

The substitution of parties is the subject of Rule 25 of the Tennessee Rules of Civil Procedure. It is clear that none of the provisions of that rule authorizes substitution by the appellant under the facts of this case. However, Rule 25 does not exhaust the subject of substitution of parties; Rule 17.01 and Rule 15.03 also authorize substitution of parties under certain circumstances. In pertinent part, Rule 17.01 provides:

“No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification or commencement by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.”

This provision of Rule 17.01 is relied upon by the appellant for his position that the trial court erred in refusing to permit him to be substituted as plaintiff in this action.

Under the wrongful death statutes, an action for damages for the wrongful death of a married woman “may be brought in the name of the husband for the benefit of himself and the children of the wife, or in the name of administrator of the deceased wife, or in the name of the next of kin of the wife.” T.C.A., § 20-611. Thus, it is clear that the right to bring an action for damages for the wrongful death of the deceased married woman in this case belongs to her husband, the appellant, and the trial court was correct in concluding that Mr. & Mrs. Vanderpool, parents of the deceased, had no right to maintain the action. But, the question remains whether, under the above quoted provisions of Rule 17.01 of the Tennessee Rules of Civil Procedure, the trial court erred in dismissing the action and refusing to permit the appellant husband to be substituted as plaintiff in the place and stead of Mr. & Mrs. Vanderpool.

The liberality of this Court in allowing the addition or substitution of a proper party plaintiff for an improper plaintiff although the statute of limitations would have prevented the filing of a new suit is recognized by the Committee Comment to Rule 15.03, Tennessee Rules of Civil Procedure:

“15.03: Under prior law, an amendment which added a new party plaintiff or substituted a party plaintiff, related back to the institution of the original suit, and thus could be made even though an applicable statute of limitations would have barred a new suit by the new or substituted party [Whitson v. Tennessee Cent. R. Co., 163 Tenn. 35, 40 S.W.2d 396 (1930); Mosier v. Lucas, 30 Tenn.App. 498, 207 S.W.2d 1021 (1947); Gogan v. Jones, 197 Tenn. 436, 273 S.W.2d 700 (1954)]. But where the amendment sought relief against a new party defendant after the statute of limitations has barred a new suit, such defendant could successfully plead the bar [Mellon v. Am. Flour & Grain Co., 9 Tenn.App. 383 (1929)].”

The cases in which this liberality has been most evident have been wrongful death actions in which a wrong party plaintiff has brought the suit. See Whitson v. Tennessee Central Railroad Company, 163 Tenn. 35, 40 S.W.2d 396 (1930); Gogan v. Jones, 197 Tenn. 436, 273 S.W.2d 700 (1954); Walkup v. Covington, 18 Tenn.App. 117, 73 S.W.2d 718 (1934). See also Nashville, C. & St. L. Ry. v. Anderson, 134 Tenn. 666, 185 S.W. 677 (1916), an action for the death of an employee under the Federal Employer’s Liability Act. In each of these cases, the proper party plaintiff was permitted to be substituted for the original, improper, plaintiff after the statute of limitations had run. Of course, in each instance, the mistake of the original improper plaintiff, as here, was a bona fide one.

No doubt the reason for this liberal policy in wrongful death cases has been the fact that the cause of action is not changed by the substitution of the proper party plaintiff for the improper plaintiff, 51 Am.Jur.2d Limitation of Actions § 261 (1970), as noted by Mr. Justice Green of this Court in the Anderson case, supra, and that such a substitution does not prejudice the defendant who has had notice, from the beginning of the suit, of the nature of the cause of action and that it was being pressed against him. Mr. Justice Holmes, in New York Cent. & H. R.R. Co. v. Kinney, 260 U.S. 340, 346, 43 S.Ct. 122, 123, 67 L.Ed. 294 (1922), made this apt observation:

“Of course an argument can be made on the other side, but when a defendant has had notice from the beginning that the plaintiff sets up and is trying to enforce a claim against it because of specified conduct, the reasons for the statute of limitations do not exist, and we are of opinion that a liberal rule should be applied.” 43 S.Ct. at 123.

This statement by Mr. Justice Holmes has been cited with approval by numerous courts over the past 50 years.

The portion of Rule 17.01, Tennessee Rules of Civil Procedure, here under consideration, has not been previously construed by this Court but it is, for practical purposes, identical to Rule 17(a) of the Federal Rules of Civil Procedure, so that, we may gain enlightenment from the decisions of the Federal courts construing Rule 17(a). In Wallis v. United States, 102 F.Supp. 211 (E.D.N.C.1951), the action was one against the United States under the Federal Tort Claims Act. With respect to the substitution of a plaintiff after the statute of limitations had run, the Court said:

“But it has come to be the settled law that where, either by mistake of law or fact, a suit is brought in the name of a wrong party, the real party in interest, entitled to sue upon the cause of action declared on, may be substituted as plaintiff . . .; but the substitution of the name of the proper plaintiff has relation to the commencement of the suit, and the same legal effect as if the suit had been originally commenced in the name of the proper plaintiff.” 102 F.Supp. at 212.

Accord, Yorden v. Flaste, 374 F.Supp. 516 (Del.1974); Unilever (Raw Materials) Ltd. v. M/T Stolt Boel, 77 F.R.D. 384 (D.C.1977); Fornaris v. American Surety Company of New York, 183 F.Supp. 339 (Puerto Rico 1960).

In the Yorden case, supra, the action was one for wrongful death by the common law wife of the decedent and the court held that the complaint could be amended by substituting the lawful widow of the decedent in place of the common law wife as plaintiff, although the statute of limitations had run after the original suit was filed but before the application for the substitution. The substitution in that case was by way of an amendment by the common law wife under Federal Rule 15(c) which is identical to Rule 15.03 of the Tennessee Rules of Civil Procedure, but it is clear that the result would have been the same if the lawful widow had proceeded under Rule 17(a) of the Federal rules which, as noted above, is identical to the above quoted provision of Rule 17.01 of the Tennessee Rules of Civil Procedure. See Advisory Committee’s Note, 39 F.R.D. 82, 83-84.

The Advisory Committee Notes to the Federal rules, with respect to Rule 17(a), are in pertinent part, as follows:

“The provision that no action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed, after the objection has been raised, for ratification, substitution, etc., is added simply in the interests of justice.
“This provision keeps pace with the law as it is actually developing. Modern decisions are inclined to be lenient when an honest mistake has been made in choosing the party in whose name the action is to be filed . .

Although the rule is to be applied liberally, abuses will not be permitted.

“However, the rule should be applied only to cases in which substitution of the real party in interest is necessary to avoid injustice. Moreover, the provision is not intended to authorize suits in the name of fictitious parties in the hope that at a later time the attorney filing the action may discover the real parties to the action.” Wright and Miller, Federal Practice and Procedure, Vol. VI, Section 1555, page 704, at page 707.

In our opinion, the instant case is a proper one in which to allow substitution under the provisions of Rule 17.01, Tennessee Rules of Civil Procedure. The appellant is the real party in interest, either as surviving husband of the decedent or as the administrator of her estate, and he made his application for substitution within a reasonable time after objection was made by the respondents to the status of the original plaintiffs as real parties in interest. See Osborne Enterprises v. City of Chattanooga, Tenn.App., 561 S.W.2d 160 (1978); 59 Am.Jur.2d Parties §§ 220, 256 (1971).

This substitution of the appellant as plaintiff in the action . . shall have the same effect as if the action had been commenced in the name of the real party in interest,” the appellant.

The judgment of the trial court denying appellant’s motion for substitution and dismissing the action is reversed and the cause is remanded for further appropriate proceedings. Costs are taxed against appellee.

HENRY, C. J., and COOPER, FONES and HARBISON, JJ., concur.

      . The recovery, if any, in such an action must go exclusively to the husband in the event there are no children nor descendants of children of the deceased wife surviving. T.C.A., § 20-610.

      . Our reported decisions, not to mention the unreported ones, indicate that throughout the years since the enactment of the wrongful death statute litigants have encountered considerable difficulty in determining the proper party to file and prosecute the action.


author: NEARN, Judge.

text:
    In re ADOPTION OF Sheila Renae DEARING, a minor. Frank John ADCOCK, III and Sheila Anne Adcock, Petitioners-Appellants, v. Norman SALIBA, Respondent-Appellant.
    Court of Appeals of Tennessee, Western Section.
    Aug. 10, 1978.
    Certiorari Denied by Supreme Court Oct. 30, 1978.

      Jim S. Umstead, Jr., Memphis, for petitioners-appellants.
    Charles H. Beaty, Gallatin, for respondent-appellant.
   NEARN, Judge.

This appeal is from a decree of adoption. The matter is before us on the technical record only.

The technical record reveals that the minor child was born out of wedlock September 3, 1970, to Sheila Anne Adcock (then Dearing) and Norman Saliba. On December 11, 1976, the mother married Frank John Adcock, III and it was the desire of the stepfather Adcock and the mother that the child be adopted by Adcock. The mother joined in the petition to give consent. The petition was filed on December 13, 1976, or two days after the marriage. The petition also alleged that the natural father, Norman Saliba, had previously filed (about six months prior to the adoption suit) a petition in the Circuit Court of Sumner County (the county of his residence) to legitimate the minor child. The Adcocks sought to enjoin any further prosecution of the legitimation petition by Saliba. The Chancellor temporarily enjoined the Sumner County proceedings.

After hearing the proof the Chancellor entered the following final decree:

“This cause came on to be heard before the Honorable George T. Lewis, Jr., Chancellor of Part III of the Chancery Court of Shelby County, Tennessee, upon the original sworn petition of Frank John Adcock, III and Sheila Anne Adcock, husband and wife, respectively, for the adoption of Sheila Renae Dearing, a minor, filed on the 13th day of December, 1976, the answer of Respondent, Norman Saliba, the confidential reports and answer of the Tennessee Department of Human Services neither giving or withholding its consent to the adoption, filed pursuant to an Order of reference heretofore entered, the testimony of Petitioners, Respondent, and witnesses in open Court, and upon the entire record in the cause.
“From all of which it appears to the Court that all necessary parties are properly before the Court.
“It further appears to the Court that the name of the child used in this proceeding is Sheila Renae Dearing; that the Petitioner, Frank John Adcock, III and Co-petitioner, Sheila Anne Adcock, natural parent of said minor, are adult resident citizens of Memphis, Shelby County, Tennessee and have been for more than one year next preceding the filing of the petition in this cause.
“It further appears that the Petitioner, Frank John Adcock, III, acquired custody of the said child, Sheila Renae Dearing, upon his marriage to Sheila Anne Adcock on December 11, 1976 and has had the care and custody of said child continuously since said date; and that proper consent as required by law has been given by the natural mother and Co-petitioner, Sheila Anne Adcock, who joined in the petition for adoption for the purpose of consenting to the adoption by Frank John Adcock, III, Petitioner herein.
“It further appears to the Court that Respondent, Norman Saliba, the natural father of said minor child, who was born out of wedlock did not consent to the adoption but presented proof in open Court regarding the best interests of said child pursuant to T.C.A. 36-111.
“It further appears to the Court that the Petitioner, Frank John Adcock, III, is a fit person, together with Sheila Anne Adcock, natural mother of said child, to have the care and custody of said minor child, Sheila Renae Dearing; that the Petitioners are financially able to provide for said child; that the said child is suitable for adoption and that the adoption is for the best interests of said child.
“It further appears to the Court that good cause exists to waive the entry of an interlocutory decree and the probationary period in this cause, the said minor child being the step-child of the Petitioner, Frank John Adcock, III.
“It further appears to the Court that Dr. Norman Saliba contributed to the natural mother of the child, approximately, $3,500.00 and a new Plymouth automobile at the time in the approximate value of $3,500.00 and furnished documentary evidence of a trust fund for the benefit of Sheila Renae Dearing in the amount of approximately $4,800.00, said contributions from the natural father being in excess of $11,000.00, and the Court believing the child to be a ward of the Court pursuant to Section 36-106(k) Tennessee Code Annotated and that the natural father’s right of visitation should not be cut off because of his contributions to the natural mother and child.
“IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the adoption prayed for herein, be and the same is hereby granted and the relationship of parent and child be and the same is hereby established between the Frank John Adcock, III and Sheila Anne Ad-cock, and said minor child, Sheila Renae Dearing, as though said child had been born to them in lawful wedlock, and the inheritance rights of all parties are hereby adjudged in accordance with the Laws of the State of Tennessee.
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the name of the child be and it is hereby legally changed to Sheila Renae Adcock, as prayed for in the petition.
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court, that the Respondent, Norman Saliba, be allowed reasonable visitation privileges with said child as follows:
3:00 p. m. December 27, 1977 through 3:00 p. m. December 30, 1977; 3:00 p. m. March 17, 1978 through 3:00 p. m. March 20,1978; 3:00 p. m. June 2,1978 through 3:00 p. m. June 6, 1978; and 3:00 p. m. August 19,1978 through 3:00 p. m. August 22, 1978.
“The foregoing visitation dates may be changed by mutual consent between the petitioners and the respondent, and shall be changed when such dates interfere with the normal school year of the minor ward, and shall continue an equivalent length of time in future years so long as respondent makes contributions to the minor ward of the Court in an amount equivalent to $300.00 per month, which contributions may be payable to the natural mother directly, or may be set up in an irrevocable trust for the benefit of said minor.
“The costs of this cause are adjudged against the petitioners, for which let execution issue.”

Both the Adcocks and Saliba appeal. The Adcocks charge the Chancellor with error in holding the child to be a ward of the Court and in granting visitation privileges to Sali-ba. Defendant Saliba charges the Chancellor with error in enjoining the legitimation proceedings and in granting the adoption.

We will consider the thrust of both appeals simultaneously.

We do not believe the Chancellor erred in enjoining prosecution of the legitimation suit in Sumner County, but we do believe he erred in not first deciding that suit before hearing the adoption petition.

Section 36-106 T.C.A. in part provides, “When the petition to adopt is filed, the child sought to be adopted shall become a ward of the court and the court shall have jurisdiction of all matters pertaining to the child.” (Emphasis ours) Therefore, in order to avoid a multiplicity of suits over the minor child, the Chancellor should have taken jurisdiction of the legitimation petition and heard it before hearing the adoption. The legitimation petition cannot be ignored, for the adoption procedure is dependent upon its outcome. As may be seen from the final decree entered, the putative father was not permitted to contest the adoption in regard to his consent or lack of it. He was permitted only the narrow latitude provided by T.C.A. § 36-111 regarding proof. However, that latitude is narrowed only when the putative father has not legitimated the child prior to the natural mother’s written consent. Otherwise, the putative father would be allowed to withhold consent. In this case the Chancellor, in allowing the adoption, considered the mother’s consent sufficient and prevented and restrained the putative father by fiat from attempting to attain a statutory right to withhold consent.

It might be argued that since the Chancellor granted the adoption and allowed the father to present proof only as to the best interest of the child, it could be safely concluded that, by implication, the Court considered and denied the petition for legitimation. Of course, the record facially makes no such implication, but from what it does show, that implication is negated. We say this because the Chancellor granted the adoption and, at the same time, enigmatically granted visitation rights to the putative father so long as he paid child support. T.C.A. § 36-126 provides that the final order of adoption “establishes from that date the relationship of parent and child between the adoptive parents and the adopted child as if the adopted child had been born to the adoptive parents in lawful wedlock”. T.C.A. § 36-127 provides that “the adoptive parents shall not thereafter be deprived of any rights in the child, at the insistence of the natural parents or otherwise”. The result contemplated by statute is that when an adoption is granted the natural parent(s) is reduced to the role of a complete stranger and has no rights, parental, visitation or other insofar as the child is concerned. Grider v. Grider (1945) 182 Tenn. 406, 187 S.W.2d 613; Rogers v. Baldridge (1934 M.S.) 18 Tenn.App. 300, 76 S.W.2d 655; Wilder v. Aetna Casualty and Surety Company (1972 Tenn.) 477 S.W.2d 1.

We hold that a final decree of adoption which affirmatively denies to the adoptive parents the same custody and control of the child possessed of natural parents and grants visitation rights to the natural parents is not only violative of the letter of the law embodied in the statutes heretofore mentioned, but is also violative of the primary purpose of the chapter as set forth in the first paragraph of T.C.A. § 36-101.

Counsel for the putative father strenuously argues that T.C.A. § 36-111 is viola-tive of the Fourth and Fourteenth Amendment provisions of the U. S. Constitution and equal protection of the Constitution of the United States in that it deprives the natural father who has not abandoned his child the right to withhold consent to an adoption and permits the natural mother to waive that right for him. We do not reach the U. S. constitutional issues, or for that matter Tennessee constitutional issues, because the operation of T.C.A. § 36-111 is dependent upon the outcome of the petition for legitimation. This is one of the reasons we are of the opinion that the legitimation petition should have been first acted upon by the Chancellor.

The result is that Saliba’s first Assignment of Error, insofar as it complains of a failure to first dispose of the legitimation petition, is sustained. Insofar as it complains of a failure to have the Circuit Court of Sumner County dispose of the petition, it is overruled. We do not reach Saliba’s second Assignment of Error regarding the constitutionality of T.C.A. § 36-111.

The Adcock Assignments of Error I and II which fault the Chancellor for granting a final petition for adoption and at the same time awarding the putative father visitation privileges and holding the child to be a continuing ward of the Court are sustained. We do not consider the third Assignment of Error as a proper treatment of it would require a Bill of Exceptions.

Since positive errors of law appear on the face of the technical record we must reverse and set aside the decree of adoption and remand for consideration by the Chancellor of first, the legitimation petition, and then, any further proceedings that may be necessary.

All costs below will await the discretion of the Chancellor after the hearing on remand and costs of appeal are to be adjudged equally between the Adcocks and Saliba.

Done at Jackson in the two hundred and third year of our Independence and in the one hundred and eighty-third year of our Statehood.

MATHERNE and SUMMERS, JJ., concur.

      . “36-111. Children born out of wedlock — Consent of mother — Notice to father — Exceptions. — In the case of a child born out of wedlock and when said child has not been legitimated prior to the time of the signing of the consent, the written consent of the mother shall be sufficient under this chapter provided, however, the natural father shall be given written notice of the proposed adoption in either a separate proceeding or in the adoption proceeding and shall be given the opportunity to present proof as to the best interests of the child. Notice need not be given to the natural father whenever he has consented to the adoption or has been found to have abandoned the child under the provisions of this chapter or chapter 2 of title 37.”

      . “36-101. Purpose of chapter — Construction. — The primary purpose of this chapter is to protect children from unnecessary separation from parents who might give them good homes and loving care, to protect them from adoption by persons unfit to have the responsibility of their care and rearing, and to protect them from interference, long after they have become properly adjusted to their adoptive homes by natural parents who may have some legal claim because of a defect in the adoption procedure.”


author: PHILLIPS, Judge. DOUGLAS, Judge, W. C. DAVIS, Judge. DALLY, Judge,

text:
    John Allen FRENCH, Appellant, v. The STATE of Texas, Appellee.
    No. 52006.
    Court of Criminal Appeals of Texas.
    May 25, 1977.
    On State’s Second Motion For Rehearing Nov. 15, 1978.
    M. P. Duncan, III, Decatur, for appellant.
    Jack E. Shriver, County Atty., Decatur, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ON STATE’S MOTION FOR REHEARING

PHILLIPS, Judge.

On original submission we held that Sec. 12C-3 of the Hurst City Ordinances, providing for the appointment of temporary (“alternate”) municipal judges, conflicts with Art. 1196(a), V.A.C.S., and is therefore void under Art. 11, Sec. 5 of the Texas Constitution. Additionally, we held that the issuance of a search warrant in this cause by R. A. Hargrave, an “alternate” magistrate appointed pursuant to Sec. 12C-3, could not be upheld as the act of a de facto magistrate. The mandate of the earlier opinion was withdrawn under the authority of Deramee v. State, Tex.Cr.App., 379 S.W.2d 908, and the State’s motion for leave to file a motion for rehearing was granted so that we could consider the State’s contention that acts of the Hurst alternate municipal judges are not void. The State’s motion for rehearing is overruled, and the order revoking probation is reversed.

The original opinion relied on Germany v. State, 109 Tex.Cr.R. 180, 3 S.W.2d 798, which the dissenting opinion incorrectly concludes is inapposite to the instant case. The Court in Germany held that an officer de jure and an officer de facto cannot be in possession of the same office at the same time. It further held that two different officers de facto cannot be in an office for which the law provides only one incumbent. The record in the instant case reflects that the city of Hurst has one elected municipal judge and three appointed “alternate” magistrates. Thus, we have the situation of one de jure officer and three officers de facto. As noted in the original opinion, Art. 1196(a), V.A.C.S., is the statutory authorization for municipal judges in home rule cities. It is this statute, which was authorized by Art. 11, Sec. 5, of the Texas Constitution, which is the law in the instant case. It is this statute which controls. The fact that Sec. 12C-3 of Hurst City Ordinances provides for the appointment of additional judges to the municipal court is not relevant.

The doctrine of officers de facto was created as a matter of public policy to protect both an officer appointed by some power having “color’’ of authority to appoint him and the public relying on the validity of that appointment. However, as pointed out in 48 C.J.S. Judges § 2a(2) (1947), this doctrine is not applicable to the present fact situation: “There cannot be a de facto judge when there is a de jure judge in the actual performance of the duties of the office.”

The dissent’s reliance on Ex parte Tracey, Tex.Cr.App., 93 S.W. 538, and Germany is misplaced. Those cases dealt with judges appointed pursuant to constitutional statutes, while we here are concerned with three alternate judges appointed pursuant to a city ordinance which violates the mandates of both the Texas Constitution and the Civil Statutes.

The dissent would hold that a judge de facto is the judge de jure as to all parties except the State and require that the official acts of a de facto judge could not be successfully challenged except in a direct proceeding to which the judge is a party. The dissent’s reliance on Snow v. State, 134 Tex.Cr.R. 263, 114 S.W.2d 898, overlooks the fact that Snow contemplated an either/or situation in which there was either a de jure judge or a de facto judge. Using this rationale, the city of Hurst now has four de jure judges in spite of the fact that the Legislature, by constitutional authorization, has only provided for one de jure judge.

The dissent’s reliance on Buckley v. Valco, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) is similarly not helpful in the situation here presented, since the instant case has an incumbent de jure, whereas the incumbent in Buckley was appointed under the Federal Election Campaign Act of 1971 (as amended in 1974) which violated the appointment clause. Although the court held that the commission as it was then constituted could not constitutionally exercise the powers given to it by the act, past acts of the commission were accorded de facto validity. Public policy compelled the result in Buckley. However, public policy would not be served in the instant case by permitting a city ordinance to supersede clear constitutional mandates and statutory authorization by appointing as many “alternate” judges as the mayor may desire.

For these reasons, the State’s motion for rehearing is overruled and the order revoking probation is reversed and the cause remanded.

DOUGLAS, Judge,

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 magistrate. 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 is 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 actually 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.

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] until 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.

DALLY, Judge,

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, under 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.

      . 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).


author: TOM G. DAVIS, Judge.

text:
    Joseph Lee BREWER, Appellant, v. The STATE of Texas, Appellee.
    No. 58550.
    Court of Criminal Appeals of Texas, Panel No. 3.
    June 14, 1978.
    State’s Motion for Rehearing En Banc Denied Nov. 15, 1978.
    Grant U. Hardeway, Sr., Houston, for appellant.
    No appearance for the State.
    Before ROBERTS, ODOM and TOM G. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appellant was convicted by a jury for aggravated robbery. The punishment, enhanced under the provisions of V.T.C.A., Penal Code, Sec. 12.42(c) was assessed by the court at life imprisonment.

In his second ground of error in appellant’s pro se brief it is contended that the court’s charge authorized a conviction on a theory not alleged in the indictment.

The indictment stated in pertinent part that on or about October 25, 1975, the appellant:

“While in the course of committing theft of money owned by Sharon Cotrone, hereinafter styled the Complainant, and with the intent to obtain and maintain control of the property, intentionally and knowingly threatened and placed the Complainant in fear of imminent bodily injury and death, by using and exhibiting a deadly weapon, namely, a pistol . . .”
The court charged the jury as follows: “Now, if you find from the evidence beyond a reasonable doubt that on or about the 25th day of October, 1975 in Harris County, Texas, the defendant, Joseph Lee Brewer, did, without the effective consent of Sharon Cotrone, the owner, take and exercise control over the corporeal personal property of Sharon Cotrone, to wit, money, from the possession of Sharon Cotrone, with intent then and there to deprive Sharon Cotrone of said money, and that said defendant, in so doing, and with the intent to acquire and maintain control of said money, intentionally, knowingly, or recklessly caused bodily injury to said owner or intentionally or knowingly threatened or placed said owner in fear of imminent bodily injury or death, and if you further find from the evidence beyond a reasonable doubt that in so doing the foregoing acts, if you do so find, the defendant caused serious bodily injury to Sharon Cotrone or the defendant used or exhibited a deadly weapon, to wit, a pistol, then you will find the defendant guilty of aggravated robbery as charged in the indictment.”

A reading of the indictment and the charge reflects that the charge authorized the jury to convict the appellant of aggravated robbery under theories not alleged in the indictment. The following recent decisions of this Court mandate reversal of this cause. Robinson v. State, 553 S.W.2d 371 (Tex.Cr.App.); Davis v. State, 557 S.W.2d 303 (Tex.Cr.App.); see also Dowden v. State (Tex.Cr.App.), 537 S.W.2d 5; Johnson v. State, 573 S.W.2d 778 (Tex.Cr.App.1978); Cleland v. State (Tex. Cr.App. No. 54,100, decided April 12, 1978).

The judgment is reversed and the cause remanded.

VOLLERS, Judge, dissenting to the denial of motion for leave to file a motion for rehearing.

The Court has refused the motion for leave to file a motion for rehearing in this cause without written opinion. I dissent to this action.

This case was reversed by Panel No. 3, 2nd Quarter, because the jury instruction's of the trial court authorized the jury to convict the appellant of aggravated robbery under a theory not alleged in the indictment. The indictment in this cause alleges that appellant intentionally and knowingly threatened and placed Sharon Cotrone in fear of imminent bodily injury and death by using and exhibiting a deadly weapon; namely, a pistol. The jury instructions authorized conviction if the jury found that appellant intentionally and knowingly or recklessly caused bodily injury to the complainant or intentionally or knowingly threatened or placed the complainant in fear of imminent bodily injury or death, and exhibited a firearm. Three witnesses, including Sharon Cotrone, testified that the robbery was committed by the exhibition of a firearm and by threats accompanying such exhibition. None of these witnesses either testified to, or suggested by their testimony, that any bodily injury at all was inflicted upon Sharon Cotrone.

The appellant testified and denied that he participated in the robbery. An examination of the entire record fails to reveal any suggestion from the evidence or argument that bodily injury was inflicted upon Sharon Cotrone in the course of this robbery. Thus a reading of this record clearly reflects that there is no possibility that the jury was misled by the charge. Furthermore, there was no objection to the charge.

It appears that the basic problem is one of determining what constitutes “fundamental error.” An examination of the cases relied upon in the original opinion reversing this cause illustrates just when, and how easily, this Court got off the path.

In Robinson v. State, 553 S.W.2d 371, relied upon in the panel opinion, this Court, without discussing the facts in the case, found that a charge which authorized a conviction upon a theory not alleged in the indictment was fundamentally defective. In making this finding, the Court cited and relied upon Smith v. State, Tex.Cr.App., 513 S.W.2d 823, where it was noted that where there was no proper objection to such an instruction, under Article 36.19, V.A.C.C.P. only fundamental error requires reversal. While it appears that this statement is correct, Smith, supra, cited and relied upon Ross v. State, Tex.Cr.App., 487 S.W.2d 744, for the proposition that “fundamental error is an error ‘calculated to injure the rights of the appellant to the extent that he has not had a fair and impartial trial.’ ” 513 S.W.2d at 829. It therefore appears that Ross, supra, formulated a rule of “fundamental error” that is the same as the provision of Article 36.19, V.A.C.C.P. It is the misstatement of the rule concerning fundamental error in Robinson that this Court has blindly followed in subsequent cases without looking at the record to see whether or not the facts justify the conclusion that an erroneous charge constituted fundamental error.

In addition to Robinson, the original opinion relies upon Davis v. State, Tex.Cr.App., 557 S.W.2d 303, which itself illustrates a blind application of Robinson devoid of factual discussion or reason. While Dowden v. State, Tex.Cr.App., 537 S.W .2d 5, cited by the panel opinion, is simply not in point on the issue of fundamental error because there was an objection urged to the charge which was erroneously overruled, it serves very well to show how the Court has misinterpreted Article 36.19 in order to arrive at an erroneous “fundamental error” rule. Article 36.19, V.A.C.C.P. provides:

“Whenever it appears by the record in any criminal action upon appeal that any requirement of Articles 36.14, 36.15, 36.-16, 36.17 and 36.18 has been disregarded, the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial.” (Emphasis added.)

In answering the dissent in Dowden the majority added a footnote from which it concludes that Article 36.19, upon which the dissent relied, refers to those cases in which the defendant disregarded the requirement of written objections. Therefore, the majority concludes that the test for review set out in Article 36.19 is the test to be applied only where there is no written objection to the court’s charge. An examination of the case cited, Echols v. State, 75 Tex.Cr.R. 369, 170 S.W. 786, and other authorities, reveals that they simply will not support such a conclusion. In Echols, supra, it was pointed out that

“It is just such cases as this that caused the Legislature to amend Article 723, now 743, of the Code of Criminal Procedure, and provide that the errors in the charge should not be cause for reversal, unless objected to when presented to counsel for their inspection. Errors of the character now complained of in the charge were under the old law raised in the motion for a new trial, and this court, because of such matters, felt impelled to reverse the case. The Legislature desired to correct what it considered an evil, and said this court should not reverse under such circumstances, and should not consider such grounds on appeal when the trial court’s attention was not called to such matters before the charge was read to the jury.”

170 S.W. at 791, 792.

In even a clearer expression of legislative intent the same judge who wrote the Echols opinion said in Wright v. State, 73 Tex.Cr.R. 178, 163 S.W. 976:

“Old Article 743 reads before amendment that the ‘error’ in the charge must ‘be excepted to at the time of the trial, or on a motion for a new trial.’ In amending and re-enacting this provision of the Code, the words ‘or on motion for a new trial’ were omitted from this article. So it is clear that the intent and purpose of the Legislature is that we should not reverse a case because of error in the 'charge, if error there be, unless it was excepted to at the time of the trial, and not then unless the error appearing from the record was calculated to injure the rights of the defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial.” (Emphasis added.)

163 S.W. at 977.

This interpretation of legislative intent was further clarified on the motion for rehearing in Wright, supra, where the Court noted that the practice at the time by some lawyers was to let the trial court take care of itself and hope that they could catch the trial judge in error in the charge and assign it on a motion for new trial in case a conviction was had. In noting that this was not fair to the trial court and that such a day had passed in Texas under the recent statute, the Court went on to note that:

“The Legislature has provided that the ‘practice of setting traps’ for the court must cease, and we will administer the law as written. The objection to a charge must be made before the charge is read to the jury, and if a reasonable time to do so is granted, objections will not be considered on appeal made for the first time in motion for new trial. This is the command of the law, and it we will obey.”

163 S.W. at 980, 981.

From the interpretation given in the Wright case and a careful reading of Article 36.19, V.A.C.C.P., it is clear that the legislature intended to create a harmless error rule where there was an objection to the trial court’s charge and the charge was found to be in error. If Article 36.19 is applied as the majority of this Court indicated in its footnote in Dowden, supra, and in the present case, there is not even a harmless error rule if there is no objection to the charge. This construction is contrary not only to Wright, but also to many subsequent cases which have applied the harmless error rule where written objections have been made to the trial court’s charge. The present day application of Article 36.19 is inconsistent with all of these prior cases.

There is the rule of statutory construction that where this Court has construed a statute and the legislature has subsequently met and did not change the statute, it is assumed that the legislature agreed with the construction given by this Court. It is apparent that the legislature has met many times since the construction given to legislative intent in Wright v. State, supra, in 1914, in regard to the predecessor of Article 36.19, V.A.C.C.P., and has not changed the wording of that statute. If this rule of construction is to be given effect in cases other than where the Court merely cited it as a rule of convenience, it should be applied in this case.

The rule of “fundamental error” in a jury instruction should be limited to situations such as was presented in Ross v. State, supra, where it was properly applied. In the Ross case it should be noted that a conviction for burglary was had under an indictment charging one theory of burglary and a charge to the jury authorizing conviction only upon a different theory of burglary which was not alleged in the indictment. A comparison of the charge of the court and the indictment indicated that the court did not have jurisdiction to enter a judgment upon such indictment under that jury instruction. Fundamental error should be limited to that which is fundamental, and subject to collateral attack.

If the provision of Article 36.19, V.A.C. C.P. has any meaning whatsoever, it applies to the situation presented by this case. The record in this case clearly reflects that there was simply no possibility that the error of the trial judge in submitting this charge was calculated to mislead the jury or otherwise injure the rights of the appellant, nor is there even a possibility that this error in any way interfered with the defendant’s having a fair and impartial trial. Therefore, the error which is presented in this case should not be reversible error under Article 36.19, V.A.C.C.P., even if objected to.

Oddly enough, we apparently have reached the point where error in the charge which is beneficial to the accused is reversible if objected to. The progression is simple. Under this Court’s interpretation of Article 36.19, if there is no objection you look to see whether or not there was harm (whether or not the error was “calculated to injure the rights of the defendant” or “ . . .it appears from the record that the defendant has not had a fair and impartial trial”). To apply this test of “harm” if there is no objection leads to the obvious conclusion that there is no requirement of harm if an objection is stated. Otherwise, there is simply no reason to object. From this, the only conclusion that can be reached is that if there is an objection and there was error in the charge, it is reversible error. As pointed out in the recent case of Romo v. State, 568 S.W.2d 298 (Tex.Cr.App.1978), where an error was beneficial to the defendant, if there had been an objection there would have been reversible error. Therefore, we have reached the stage of having reversible beneficial error.

If we are to have any faith in the jury system at all, we must assume that the jurors, collectively and as individuals, are competent enough to understand the spoken word of the testimony presented to them and to understand the written word of the court’s charge. Obviously, if they are competent enough to read and understand the court’s charge, we must give them credit for having enough sense to recognize that there was no evidence, and therefore no issue, in this case that the robbery occurred by the commission of bodily injury, and that convicting on such issue would be beyond the realm of reality.

To cause the reversal of a case such as this upon an issue such as this is ludicrous. I most strongly agree that every person charged with crime is entitled to a fair trial, but I cannot agree that this case presents even a possibility that the appellant was denied a fair trial.

It appears that the result reached in this case is the epitome of the enforcement of a rule simply for the sake of enforcing rules. Such a process should not be condoned for either the reversal or the affirmance of a case. Furthermore, the results of this case fly in the very face of the legislative intent of Article 36.19, V.A.C.C.P. as clearly interpreted and applied in Wright v. State, supra. No attorney in his right mind who is aware of the holding of this Court in recent cases and its application of Article 36.19, V.A.C.C.P. would object to the charge in this case because it is clear to him that his client cannot be harmed by such a charge, especially in view of his defense on the issue of identity. He is in the perfect position of having an error in the charge which is not harmful but which constitutes fundamental error in the event the jury does not believe his client’s defense of mistaken identity. So, contrary to legislative intent, we have reinstituted the practice of “sand bagging” the trial judge. Unfortunately, we have gone further than the cases which motivated the legislature in 1913 in its effort to do' away with such “sand bagging” by making such “sand bagging” profitable even where the error is harmless.

I dissent.

DOUGLAS and W. C. Davis, JJ., join.

      . For just a small sample of such cases see Crane v. State, 91 Tex.Cr.R. 304, 240 S.W. 920 (1922); Pinson v. State, 94 Tex.Cr.R. 517, 251 S.W. 1092 (1923); Davis v. State, 101 Tex.Cr.R. 352, 275 S.W. 1029 (1925); Durham v. State, 112 Tex.Cr.R. 395, 16 S.W.2d 1092 (1929); Fine v. State, 125 Tex.Cr.R. 337, 68 S.W.2d 192 (1934); Davis v. State, Tex.Cr.App., 430 S.W.2d 210 (1968); Smith v. State, Tex.Cr.App., 450 S.W.2d 92 (1970); Hannon v. State, Tex.Cr.App., 475 S.W.2d 800 (1972).