This is the third appeal to this court by indigent inmates of the Bexar County Jail of Texas challenging the constitutionality of restrictions on their access to legal materials. Unfortunately, due to the state of the record, we must return the case to the district court for the fourth and, hopefully, final time.I. The Background

This suit was filed by appellants pro se as a class action1 on May 4, 1970, in the United States District Court for the Western District of Texas seeking declaratory and injunctive relief under 42 U.S.C. § 1983 against the enforcement of jail regulations restricting inmates' use and possession of legal materials. The district court's dismissal of the complaint was vacated and remanded by the Supreme Court for reconsideration in light of Younger v. Gilmore, 404 U.S. 15, 92 S. Ct. 250, 30 L. Ed. 2d 142 (1971), aff'g, Gilmore v. Lynch, 319 F. Supp. 105 (N.D.Cal.1970) (three-judge court); Cruz v. Hauck, 404 U.S. 59, 92 S. Ct. 313, 30 L. Ed. 2d 217 (1971).

Upon remand, the district court approved, over the objection of and without hearing from the appellants, three rules offered by Bexar County Jail. Cruz v. Hauck, 345 F. Supp. 189 (W.D.Tex.1971). On appeal, we reversed the district court and remanded "for an evidentiary hearing to be followed by specific findings of fact and conclusions of law on the merits of petitioners' objections and the Government's justifications for the rules." Cruz v. Hauck, 475 F.2d 475, 477 (5th Cir. 1973).

The district judge then referred the suit to a United States magistrate to act as a special master and to conduct the required evidentiary hearing. Appellants did not object at any time to the reference. After the hearing, the magistrate submitted his proposed findings of fact and conclusions of law to the district judge. After allowing the litigants to file objections, the district judge adopted the magistrate's report with minor modifications.

The rules finally approved differ from the rules previously approved by the court in only two aspects: jail space must be provided for the use of hard cover lawbooks by the inmates; correspondence between inmates and judges may not be censored.2 Not surprisingly, appellants once again appear before this court. In addition to contending that the rules do not provide adequate access to legal materials, appellants complain that the case improperly was referred to the magistrate, and that certain findings of fact in his report as adopted by the district judge were clearly erroneous. We find merit in certain of appellants' contentions, vacate the judgment of the district court, and again remand.II. Reference to Magistrate

Appellants contend that the district judge erred in referring the case to a magistrate to sit as a special master. Appellants, however, never objected at anytime to the magistrate conducting the evidentiary hearing. Under these circumstances, we need not consider whether the district judge acted improperly in making the reference for we believe that appellants have waived their right to object.

Much has been written lately by legal scholars and by the courts about judicial references to magistrates. We find it necessary because of the circumstances of this case to add to the discussion. Until recently, it almost was black-letter law that a party, who had not objected to a reference by the time of the adoption by the district judge of the master's report, had waived his right to do so. See Smith v. Brown, 3 F.2d 926, 927 (5th Cir. 1925). See generally 5A J. Moore, Federal Practice P 53.05(3) (2d ed. 1974); C. Wright & A. Miller, Federal Practice and Procedure § 2606 (1971). With the increased use of magistrates as special masters since the passage of the Federal Magistrates Act, the question no longer may be regarded as settled.3

The district judge referred this suit "pursuant to the order authorizing magistrates to issue certain writs entered by this Court on April 22, 1971." This action puzzles us. The April 22 order authorizes magistrates to issue appropriate writs in habeas corpus proceedings and in performing certain duties in criminal actions. The order does not authorize magistrates to conduct evidentiary hearings in civil rights cases, such as this one, filed under 42 U.S.C. § 1983. While prisoners' grievance suits often may be brought under either the Habeas Corpus Act or the Civil Rights Act,4 the particular act under which a suit is brought has important procedural consequences. Indeed, if this suit had been brought as a habeas corpus action, the reference to a magistrate would have been void.5

The reference is not void because ordered pursuant to an inapplicable rule of the district court. In the reference, the district judge directed that all proceedings before the magistrate "shall be conducted in accordance with the provisions of Rule 53 (of the Federal Rules of Civil Procedure)." Under Rule 53, anyone, with certain exceptions not relevant here, may be appointed a master who is "well versed in the law and fit to perform the duties incumbent on one sitting in the place of the court." 5A J. Moore, Federal Practice P 53.03, at 2922 (2d ed. 1974). Since Rule 53 provides a basis for a reference to a master independent of the Federal Magistrates Act and the April 22 order, we shall treat the reference as though ordered pursuant to Rule 53.

Rule 53(a) authorizes a court in which any action is pending to appoint a special master. The district judge therefore was empowered to refer this suit to the magistrate subject to the limitations of Rule 53(b).6 Appellants' contention that the reference was improper is " 'not a case where a court has exceeded or refused to exercise its jurisdiction . . . .' "; it is rather a question of whether the judge " ' . . . erred in ruling on matters within (his) jurisdiction.' " La Buy v. Howes Leather Co., 352 U.S. 249, 261, 77 S. Ct. 309, 316, 1 L. Ed. 2d 290 (1957) (Brennan, J., dissenting).7

Since the judge's reference was within his power, a challenge to that order is unlike a challenge to a court's subject matter jurisdiction. The latter attacks the essence of the court's powers. An order without power is void; a challenge, therefore, to subject matter jurisdiction may be raised for the first time on appeal.

The power of the judge to order the reference also distinguishes the instant case from those cases relied on by appellants which have held orders of reference to be void. These cases fall into two categories. In the first group, magistrates were authorized to render judicial decisions without adequate review by the district judges. Such orders properly were held to be void since neither federal statutes nor rules of civil procedure empower magistrates to hand down decisions in civil cases.8 See Campbell v. United States District Court, 501 F.2d 196, 206 (9th Cir. 1974), cert. denied, 419 U.S. 879, 95 S. Ct. 143, 42 L. Ed. 2d 119 (1975). The second group involves cases where other statutes clearly provide that, despite the Federal Magistrates Act or Rule 53, magistrates were not empowered to hold evidentiary hearings.9

The magistrate in the instant case did not make a judicial order, but submitted his proposed findings of fact and conclusions of law to the district judge. After receiving the objections of the litigants to the magistrate's report, the judge made appropriate changes in the findings of fact, amended the jail's rules, and issued the final judicial order. We are unaware of any statute that requires a judge personally to conduct an evidentiary hearing in section 1983 actions.10

We therefore reject appellants' contention that the district judge's order was void and subject to challenge for the first time on appeal. This conclusion alone, however, does not mean that appellants have waived their right to object to the reference by not objecting in the district court. Rule 53(b) provides that "(a) reference to a master shall be the exception and not the rule," and that "in actions to be tried without a jury, save in matters of account and of difficult computations of damages, a reference shall be made only upon a showing that some exceptional condition requires it." The question remains whether the limitations found in Rule 53(b) upon the power of the court to order a reference may be waived by the litigants. The answer lies in whether the limitations of Rule 53(b) are to protect the litigants, or whether they emanate from constitutional constrictions upon non-Article III judges sitting in Article III-type cases. An examination of the history of the limitations upon the use of masters may be helpful in resolving this question.

Traditionally, references had been an inseperable part of equity procedure. The practice was to refer cases to an examiner for the taking of evidence, or to a master for the purpose of making recommendations to the court. See Comment, Masters and Magistrates in the Federal Courts, 88 Harv.L.Rev. 779, 789 (1975). Unless the parties consented to a reference, the report of the master was advisory, because the court had the power to substitute its own judgment as to the weight of the evidence. See Kimberly v. Arms, 129 U.S. 512, 523-24, 9 S. Ct. 355, 32 L. Ed. 764 (1889). Equity Rule 611/2, 286 U.S. 571 (1932), adopted in 1932, provided that the findings of the master should be treated as presumptively correct unless "the court in the exercise of its judgment is fully satisfied that error has been committed." Federal Rule of Civil Procedure 53(e), as adopted in 1938, and as it stands today, provides that the master's findings of fact are not to be disturbed unless "clearly erroneous."11

As the limitations on the scope of the judge's review of a master's findings of fact grew stricter, the power of the district judge to refer cases to a master became narrower. The early Rules of Equity placed no restrictions on the use of masters. Equity R. 73-83, 42 U.S. (1. How.) lxiv-lxvii (1842). An amendment to the Equity Rules in 1912 made a reference to a master the exception, save in matters of account, and "only upon a showing that some exceptional condition requires it." Equity R. 59, 226 U.S. 666 (1912). Federal Rule of Civil Procedure 53, as promulgated in 1938, consolidated the various Equity Rules on masters and left substantially unchanged the "exceptional condition" requirements of the 1912 rules. The present Rule 53 is substantially the same as the 1938 version.

The Supreme Court has construed the "exceptional condition" limitation in two major cases. In both cases, the Court has indicated that the constriction is the consequence of deficiencies in the master system; it is not because of constitutional considerations.

In Los Angeles Brush Manufacturing Corp. v. James, 272 U.S. 701, 47 S. Ct. 286, 71 L. Ed. 481 (1927), the Court upheld, due to calendar congestion, a particular reference to a master in a patent case. The Court, however, interpreted the "exceptional condition" limitation to forbid blanket referrals of patent cases. The only reason assigned was that references "had been productive of unnecessary expense and burden to the litigants and caused much delay in their disposition." Id. at 707, 47 S.Ct. at 288.

Thirty years later, the Court again had an occasion to construe the "exceptional condition" for reference. In La Buy v. Howes Leather Co., 352 U.S. 249, 77 S. Ct. 309, 1 L. Ed. 2d 290 (1957), the district judge had referred a complex antitrust case to a master over the objections of the litigants. The judge already had heard and decided requests for discovery and admissions, and motions to dismiss and for summary judgment. The Court affirmed the court of appeals' grant of mandamus to vacate the reference, further narrowing the limitation with the admonition that references amount "to little less than an abdication of the judicial function." Id. at 256, 77 S.Ct. at 313.

The Court's conclusion appears to rest, not on constitutional grounds, but on three major problems that long had plagued the master system. The first two, the expense and the delay involved in references, already had been noted in Los Angeles Brush Manufacturing Co.12 The third problem emanated from the evolution of the master's role from merely assisting the trial judge to the level where his findings of fact could not be disturbed unless "clearly erroneous." The new weight attached to the master's findings had the effect of transforming the traditional role of the district judge as a fact finder to the function of an appellate reviewer of the findings of fact. The cases that had been referred, however, were being tried "before a temporary substitute appointed on an ad hoc basis and ordinarily not experienced in judicial work." 352 U.S. at 259, 77 S.Ct. at 315. As the Court had noted in Holiday v. Johnston, 313 U.S. 342, 61 S. Ct. 1015, 85 L. Ed. 1392 (1941), in holding that a district judge, not a United States commissioner, must conduct the fact finding hearing in a habeas corpus proceeding:

One of the essential elements of the determination of the crucial facts is the weighing and appraising of the testimony. . . . We cannot say that an appraisal of the truth of the prisoner's oral testimony by a master or commissioner is, in the light of the purpose and object of the proceeding, the equivalent of the judge's own exercise of the function of the trier of the facts.

Id. at 352, 61 S.Ct. at 1018 quoted in Wingo v. Wedding, 418 U.S. 461, 467, 94 S. Ct. 2842, 41 L. Ed. 2d 879 (1974).

The ineluctable conclusion is that the "exceptional condition" limitation results from the deficiencies of the master system rather than from constitutional limitations upon non-Article III judges. This view also is supported by the early approval of the use of masters to try cases when both parties had consented. In United States v. Rathbone, 27 Fed.Cas.No.16,121, p. 711 (C.C.S.D.N.Y.1828), the circuit court, in holding that a reference without consent was violative of the seventh amendment, acknowledged "there can be no doubt this could be done by the consent of the parties." Id. at 711. Similarly, in Kimberly v. Arms, 129 U.S. 512, 9 S. Ct. 355, 32 L. Ed. 764 (1889), the Court held that when the parties consent to a reference, the master's findings of fact are to be taken as "presumptively correct." If the report of the master, both as to his findings of fact and conclusions of law, is to be "presumptively correct" when the parties consent to the reference, then limitations upon the power of the master to hold factfinding hearings cannot derive from constitutional considerations. Were this the case, the parties could not consent to a non-Article III judge hearing an Article III case.

Finally, the Court explicitly has rejected the contention that "to maintain the essential attributes of the judicial power, all determinations of fact in constitutional courts shall be made by judges." Crowell v. Benson, 285 U.S. 22, 51, 52 S. Ct. 285, 292, 76 L. Ed. 598 (1932). In upholding a statutory scheme limiting judicial review of an administrative agency's findings of fact to determine whether the findings are supported by evidence, the Court expressly relied upon the practice of using masters to assist courts.13

We are of the opinion, therefore, that the policy underlying Rule 53 is the alleviation of unnecessary burdens to litigants and the cornerstone of the rule is the avoidance of delay, costs, and a fact finder other than a judge. We see no reason why the parties to the lawsuit, for whose benefit the restrictions are imposed, may not waive their objections to a reference.14

A party objecting to a reference should do so prior to or at the time of the reference. If this is infeasible, the objection should be made to the judge at the earliest possible opportunity. 5A J. Moore, Federal Practice P 53.05(3) (2d ed. 1974). Such procedure permits the proper and efficient administration of the judicial process. Otherwise, a party disappointed with a master's report would be able to obtain "a second bite at the apple" by withholding his objection to the reference until after the report. Since appellants did not object to the reference in the district court, we hold that they waived their right to object and may not do so for the first time on appeal.

We turn next to the question of whether the Bexar County Jail Rules15 provide adequate access for inmates to legal materials. Determination of this question must commence with consideration of the landmark case of Gilmore v. Lynch, 319 F. Supp. 105 (N.D.Cal.1970), aff'd sub nom., Younger v. Gilmore, 404 U.S. 15, 92 S. Ct. 250, 30 L. Ed. 2d 142 (1971).

In Gilmore, the three-judge statutory court held that limitations on the type of legal materials available to prisoners unconstitutionally infringed upon the prisoners' right of access to the courts in the absence of a showing that prisoners had access through other avenues. The court noted that access to the courts, as guaranteed by Johnson v. Avery, 393 U.S. 483, 89 S. Ct. 747, 21 L. Ed. 2d 718 (1969), "encompasses all the means a defendant or petitioner might require to get a fair hearing from the judiciary on all charges brought against him or grievances alleged by him." 319 F. Supp. at 110.

Gilmore does not dictate, as appellants contend, that access to legal materials must be provided even if prisoners have access to counsel. The fundament underlying the right of access to legal materials is the right of access to the courts. This is the lodestar which guides our course. Access to legal materials is but one source, albeit an important one, of providing an adequate pathway to the courts. See Souza v. Travisono, 498 F.2d 1120, 1123 n.6 (1st Cir. 1974). As we interpret Gilmore, access to the courts may be satisfied either by availability of legal materials, by counsel, or by any other appropriate device of the State. As the Gilmore court observed, "(t)he alternatives open to the State are legion."16 319 F.Supp. at 110.

In accordance with our previous remand, 475 F.2d 475, the magistrate conducted an evidentiary hearing to determine if the jail rules provided adequate access to the courts. The magistrates' conclusions of law, accepted by the judge, basically provide that the inmates have adequate access to the courts because "all indigent inmates of the Bexar County Jail are afforded the services of court-appointed counsel."17 While the conclusions of law adequately comply with the teachings of Gilmore, we believe the findings of fact supporting the conclusions are deficient in two aspects.

First, one finding of fact states only that every inmate "accused of a criminal offense has access to an attorney."18 The next finding of fact appears to limit such representation to inmates "charged with a state offense." Appellants contend that Bexar County Jail confines inmates seeking habeas corpus postconviction relief, federal prisoners, persons held as witnesses or for investigation, and individuals serving misdemeanor sentences, none of whom are assured counsel under the existing "rotation system." Second, the findings of fact do not state clearly whether attorneys representing those charged with state criminal offenses aid these inmates if they wish to file habeas corpus petitions or civil rights actions against jail conditions.

Thus, the findings of fact do not demonstrate that inmates wishing to file either habeas corpus petitions challenging the constitutionality of their incarceration, or civil rights actions challenging the conditions of their confinement have access to counsel.19 Due process, however, requires "that prisoners be afforded access to the courts in order to challenge unlawful convictions and to seek redress for violations of their constitutional rights." Procunier v. Martinez, 416 U.S. 396, 419, 94 S. Ct. 1800, 1814, 40 L. Ed. 2d 224 (1974); see Souza v. Travisono, 498 F.2d 1120 (1st Cir. 1974). The right of access to the courts encompasses the right to file both habeas corpus petitions and civil rights actions. Andrade v. Hauck, 452 F.2d 1071 (5th Cir. 1971).

Reluctant as we are to remand again, these deficiencies compel us to return the case to the district court for an evidentiary hearing to determine whether all inmates of the jail have adequate access to the courts through means other than by access to legal materials. The burden of proof of demonstrating adequate alternative means is on the jail authorities. Novak v. Beto, 453 F.2d 661 (5th Cir. 1971). The record on remand should clearly demonstrate compliance by the defendants with their burden. If all inmates do have such access, the rules approved by the district court are constitutionally adequate, subject to the modifications we make below. If all inmates do not have such access, the court should devise a plan ensuring adequate entry to the courts, either by reasonable access to attorneys, or by reasonable access to legal materials, or by any other reasonable means the district court may devise.20

Bexar County Jail confines approximately 700 inmates; it is comparable in size to many state prisons. Nonetheless, the functions served by county jails in a state penal system should be taken into account in determining whether all inmates have access to legal materials. See McGinnis v. Royster, 410 U.S. 263, 93 S. Ct. 1055, 35 L. Ed. 2d 282 (1973).

County jails are generally short-term holding facilities confining individuals serving misdemeanor sentences, or awaiting trial or transfer to prisons. In the case of individuals not awaiting trial, the confinement may be so brief as to make it reasonable for them to await transfer to a permanent facility before petitioning the courts. For example, an inmate held in the jail for only two or three days while on the way to a state prison reasonably may await transfer before filing a habeas petition.

Therefore, in determining whether all inmates have adequate access to the courts, the district court need not consider those inmates whose confinement is of a very temporary nature or for purposes of transfer to other institutions. The district judge should have little difficulty, realizing the fundamental nature of the right of access, in determining those cases where the brevity of confinement does not permit sufficient time for prisoners to petition the courts.

Under the circumstances of this appeal, we believe it appropriate to discuss appellants' objections to the rules now existing at the jail. First, Rule I prohibits the storage of hard cover lawbooks in the inmates' cells and restricts the storage of non-hard cover materials so as not to limit the "floor or wall space dimensional of the jail cell block." Such limitation is reasonable in the light of the duty of jail authorities to maintain security and to protect against the dangers of fire. See Johnson v. Avery, 393 U.S. 483, 490, 89 S. Ct. 747, 21 L. Ed. 2d 718 (1969). While provision is made for storage of hard cover materials in an area designated by the jail authorities, no provision is made for the storage of non-hard cover materials in areas other than cell blocks. As indicated in our previous remand, legitimate restrictions on storage of legal materials should not act as a total bar to the storage of such materials. If prisoners safely may not store non-hard cover legal materials in their cells, the jail authorities should arrange for the storage of such materials in other readily available areas of the jail.

Second, as we read Rule I, inmates may have access to legal materials if owned by them, if such materials are supplied by their attorneys, or if the materials are ordered from any publishing house. Apparently, prisoners may not obtain legal materials from other sources, such as through friends or donations, even if provided at no cost to the state. Such restriction is unnecessary even for security purposes. The rules should allow inmates to obtain legal materials from such sources subject to screening only for security purposes.

Third, Rule I provides that prisoners have the right to use hard-cover lawbooks in an area designated by jail authorities. While the findings of fact indicate that prisoners are allowed to use these books from one to three hours per day, the rules are silent on this point. The rules should establish a reasonable procedure by which inmates may use for a reasonable period those legal materials not stored in their cells.

Finally, the rules should be applied and interpreted fairly and reasonably to effectuate the purposes mandated by the court, all of which can be achieved without unnecessarily sacrificing the security of the institution and without the need for recurring judicial intervention.

We have considered appellants' other objections to the report of the magistrate and to the existing jail rules and we believe they do not warrant additional discussion.

The judgment of the district court is vacated and the case is remanded for further proceedings consistent with this opinion.