Ex Parte Stacey

¶1concurring in part and dissenting in part.

¶2Judge McCormick has switched sides. The thrust of our opinion has been changed, and the situation clouded by the adoption of the original concurring opinion as the majority opinion.

¶3The majority opinion on original submission held that “[sjince there is no order of referral of the case by the district judge to a duly appointed magistrate as required under Article 1918c, § 4(c), supra, this cause must be remanded to the trial court.”

¶4Such opinion then noted in passing that there was in the record by supplementation, while the case was pending in the Court of Appeals, an “Order of Referral” dated October 1, 1981 entered some two and a half years before the instant ease was filed. Such order was not a part of the record in the instant case, but was found only in the general minutes of the district court. While such order had not been considered by the en bane Court of Appeals, the majority on original submission observed some defects therein. These observations were not essential to the disposition of the instant case.

¶5It was observed first that the 1981 “Order of Referral” applied to “all cases which have been indicted, or have had such indictment duly waived by the defendant, and such order was not therefore applicable to the instant case filed February 8, 1984 which was a habeas corpus proceeding involving an extradition matter where the appellant was charged by affidavit before a magistrate in Alabama.

¶6Second, it was observed that the order referred to the “Magistrate Court of Dallas County, Texas” and that under our decision in Kelley v. State, 676 S.W.2d 104 (Tex.Cr.App.1984), there was no such animal or court.

¶7Third, the general order of referral does not refer cases to an identifiable person as a “magistrate” in light of the provisions of Article 1918c, § 4(c), Y.A.C.S.

¶8Fourth, the opinion noted the 1981 order did not refer “cases” to the “Magistrate’s Court” for extradition purposes.

¶9The holding of the majority was that there was no referral order in the record in the instant case. The observations about the general 1981 “Order of Referral” found only in the minutes of the district court and not in the record of the instant case were made to show why the order could not suffice as the necessary order in the instant case, and to point some formal deficiencies in the order itself. Observation or *193reason number one noted the order applied only to “Cases where indictments had been returned or already waived by defendants. Observation or reason number four noted the order failed to include extradition matters. For these reasons the 1981 order could not suffice as the order in the instant case. Observations or reasons numbers two and three were formal defects in the order.

¶10The concurring opinion agreed that the general 1981 order of referral was deficient only in that it did not encompass extradition matters but was not deficient for the second, third and fourth reasons given by the majority.1

¶11The original vote was 5 to 4 and now that Judge McCormick has changed his vote, it is still 5 to 4, but the meaning of the case has been altered.

¶12Article 1918c, § 1, V.A.C.S., as enacted in 1981 and applicable to the instant case2 provides for the appointment of magistrates by the Dallas County district judges with the consent and approval of the Commissioners’ Court. Sec. 1(d) provides:

“Each magistrate’s appointment must be made with the unanimous approval of all the judges under whom the magistrate serves, and the magistrate’s service may be terminated by the majority of all the judges for whom the magistrate serves.”

¶13Thus it is possible under the statute for a magistrate to serve some judges and not others, and to be authorized to act for some courts and not others. The fact that this may not have happened under the current situation, if supported by the record, is beside the point.

¶14Sec. 4(a) provides the district judge may refer to the magistrate any criminal case for certain proceedings designated by the statute. In no event may a magistrate be allowed to preside over a trial on the merits. See Sec. 4(b).

¶15Sec. 4(c) provides:

“To refer a case to a magistrate, the judge shall issue an order of referral specifying the duties of the magistrate.” (Emphasis supplied.)

¶16It is clear that this provision relates to referral of a case to a magistrate where the order specifies the duties of the magistrate in a particular case or cases referred.

¶17Sec. 5(b) of Article 1918c provides:

“The order of referral may limit the power of the magistrate and direct the magistrate to report only on specific issues, do particular acts, or receive and report on evidence only. The order may set the time and place for the hearing, prescribe a closing date for the hearing, and provide for a date for the filing of the magistrate’s findings.”

¶18Sec. 5(c) provides in part:

“(c) ... A magistrate may, however, make findings, conclusions, and recommendations on such issues, within the scope of the order of referral. (Emphasis supplied.)

¶19Sec. 5(d) provides:

“(d) An order of referral may designate proceedings for more than one case over which the magistrate shall preside, may direct the magistrate to call the court’s docket, and may set forth general powers and limitations of authority of the magistrate applicable to all such cases.”

¶20In my opinion it is clear that the Legislature never intended that one general all encompassing order of referral would suffice to refer all cases in district court, past or present, without designation as to style or number, to some unnamed magistrate, with authority to act in all permissible statutory proceedings, whether applicable or not. And yet this is exactly what the majority on rehearing has held. In fact, it appears they would uphold the 1981 general order in the instant case except for its failure to include extradition matters.

¶21The approval of a general order procedure means cases will later be orally re*194ferred without any written record of what the magistrate is to do or not to do in the particular ease. The parties may not know and the appellate courts will be kept in the dark on appeal.

¶22I concur in the reversal for the reasons stated in my opinion on original submission, but dissent to the reasoning of the majority on rehearing.