If a judge -- properly appointed to take the place of an ill or otherwise absent judge -- fails to take the constitutional oath of office, has everything that occurred in that court been rendered a nullity?
An old case says yes: See Enloe v. State, 150 S.W.2d 1039 (Tex. Crim. App. 1941)(indictment void where special judge took wrong [outdated] oath of office when taking over for sick judge; "one assuming to act as a special judge without having first taken the oath as prescribed by the Constitution could not be a judge de facto. It follows, therefore, that all acts done or performed by the special judge are and would be null and void for want of authority.")
But I was wondering if somehow Cain or any other harm analysis cases might put the burden on the defendant to somehow show harm?
Look at Wilson v. State, 977 S.W.2d 379 (Tex. Crim. App. 1998) and Prieto Bail Bonds v. State, 978 S.W.2d 574 (Tex. Crim. App. 1998). Looks like those cases support your thinking, in that they indicate such an error can be waived absent an objection by the defendant. Note also that special judges are a different creature from elected, appointed, visiting, and senior judges. Maybe there is some wiggle room there, too.
[This message was edited by John Rolater on 03-04-02 at .]
You might look at Davis v. State, 956 S.W.2d 555 (tca 1997) it cites with approval French v. State, 572 S.W.2d 934 (tca 1978) which looks bad for you.
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