¶1*788On Motion for Rehearing.
¶2Our attention is now directed to the form of oath administered to Special County-Judge Walter K. Boyd, Jr., following his election by the bar to preside at the May Term, 1950, of the County Court of Coleman County, Texas, appellant having been tried and convicted in said court at said term on June 6, 1950.
¶3R.S. Art. 1934, provides for the election of a special judge in the county court, while Art. 555, C.C.P., provides that a special judge of said court shall, before he enters upon his duties as special judge, take the oath of office required by the Constitution.
¶4The oath administered to Special County Judge Boyd is not that required by the Constitution of Texas.
¶5He took the oath to discharge and perform the duties of said office “agreeably to the Constitution and laws of the United States and of this'State,” as formerly required, but his oath did not include the obligation to “preserve, protect and defend” such constitutions and laws as required since the 1938 Amendment to the Constitution. See Vernon’s Ann.Tex.Const., Art. 16, Sec. 1.
¶6A special judge, though duly elected in accordance with the statutes, is without authority to act until he has taken the oath prescribed by the Constitution.
¶7In Enloe v. State, 141 Tex.Cr.R. 602, 150 S.W.2d 1039, this court held that the taking of an oath in the form provided by the Constitution of this state prior to its amendment in 1938 would not suffice, the oath now required being substantially different.
¶8The opinion in that case and the-authorities therein cited ar'e decisive of the question here raised. It follows that appellant’s contention that his conviction should be reversed must be sustained.
¶9Appellant’s motion for rehearing is granted, the judgment of affirmance set aside, and the cause is now reversed and remanded.
¶10Opinion approved by the Court.
¶11On State’s Motion for Rehearing.
¶12The state, in its motion for rehearing, contends that our holding does violence to the rule which prohibits a collateral attack upon the right of a judge to hold office. Snow v. State, Tex.Cr.App., 114 S.W.2d 898.
¶13We are not here dealing with the right of the special judge to hold that office but, rather, his right to act in the capacity of judge, which right depends upon his taking the oath of office prescribed by the Constitution, constituting a condition precedent to his right to act in that capacity.
¶14The Enloe case, supra, fully sustains the views expressed.
¶15The motion for rehearing is overruled.
¶16Opinion approved by the Court