Mike Allen Herrod v. State Texas

We granted the States motion for leave to file a motion for rehearing to reconsider the question whether a retired district judge could preside over a criminal trial in County Criminal Court No. 3 of Dallas County. The original panel opinion reversed the conviction for the failure of the record to show by what authority the retired district judge presided since the duly and regularly elected judge of the trial court did not preside. The panel opinion noted the record did not show whether the retired district judge was a special judge under Article 1970-31.13, § 8, V.A.C.S., or by what authority presided. The panel opinion cited West v. State, 172 Tex. Crim. 409, 358 S.W.2d 132 (Tex.Cr.App. 1962); Dalby v. State, 368 S.W.2d 626 (Tex.Cr.App. 1963); Brown v. State, 156 Tex. Crim. 32, 238 S.W.2d 787 (Tex.Cr.App. 1950). In Dalby the conviction was reversed because the record failed to show that the "special" judge took the oath of office as required by statute. In West the conviction was reversed for the same reason and because the record failed to show the mode of selection of the "special" judge. In Brown the conviction was affirmed because it was shown the "special" judge had taken the oath of office as required by the statute.