J. M. Watts v. The State, 22 Tex. Ct. App. 572

Willson, Judge. This conviction is for keeping a disorderly house. The defendant, by a special plea, challenged the right of the court to try the cause at the town of Marfa, alleging that said town was not the county site of Presidio county, but that Fort Davis was the county site of said county.

This plea set forth at length the facts relating to the county site question in said county, and by those facts it is shown that, at the time of the trial of this cause, it was claimed by the county judge and other officials of said county that the said town of Marfa was the legal county site of said county, made so by an election held for that purpose, and said county officials had moved the public records of said county to said town of Marfa, and transacted the public business of the county at said place, and recognized said place as the county site of said county.

In other words, the facts recited in said plea show that, at the time of said trial, the town of Marfa was the de facto, if not the de jure, county site of said county. Said plea was stricken out by the court and the court refused to hear proof in support thereof. In this action of the court there was no error. The jurisdiction of the court to try this case at Marfa did not depend upon the question whether or not Marfa was the county site de jure of Presidio county.

It being de facto the county site was sufficient to give the court jurisdiction—Marfa was being occupied and recognized as the county site under color of authority of law—under color of its having been selected and established as such county site in the mode provided by law. The plea sought to inquire into and determine whether it was the county site de jure. This question could not be raised collaterally. If Marfa was not rightfully and legally the county site, being such de facto, its legality as a county site could only be inquired into and determined by some direct proceeding had for that purpose.

Such direct proceeding has been taken, and our Supreme court, since this conviction was had, in such proceeding decided that Fort Davis and not Marfa was the county site, de jure, of Presidio county. (L. B. Carothers v. The State, Tyler term, 1886.) But, as before stated, Marfa, at the time the trial and conviction in this case were had, was the county site, de facto, and, being so, it matters not in this case that it was not the county site, de jure. This question is analogous to a collateral attack made upon the authority of an officer, de facto.

The authority of a de facto officer can not be questioned collaterally. His official acts, until ejected from office, are valid. (Aulanier v. The Governor, 1 Texas, 653; McKinney v. O’Conner, 26 Texas, 5; Ex Parte McCall, 2 Texas Ct. App., 497.) We are of the opinion that the trial of the case at Marfa was legal and valid, notwithstanding said town was not the legal county site of Presidio county at the time. Opinion delivered December 15, 1886.

That the grand' jury which presented the indictment had, before such presentment, excused one of its members for the term, leaving only eleven members of said jury, presents no good ground for a reversal of the conviction, nor does the fact in any manner affect the validity of the indictment. (Smith v. The State, 19 Texas Ct. App., 95.) We find that the evidence amply supports the conviction, and that the charge of the court is applicable to the evidence, and, when considered as a whole, is correct. The judgment is affirmed. Affirmed.