Case Information

*1 THE ATIXBRNEY GENERAL. OFTEXAS

October 25, 1972 Honorable Everett L. Anschutz opinion NO. M-1247 Executive Secretary Employees Retirement System Re: Construction of Article

of Texas 1811e, V.C.S., relating it01 Station P. 0. Box 12337, Cap of a re- Austin, Texas 78711 tired to serve as

a commissioner Dear Mr. Anschutz: Court of Criminal Appeals.

Your request for an opinion asks following questions: "1 Does a retired judge who has previously filed with the Chief Justice the Supreme Court his election to continue as a judicial officer subject to assignment meet the requirement having 'consented to be subject to appointment' under Article 1811e? If not, how does such so qualify?

"2 . Taking into account the parallel visions of both Article 6228b and 1811e providing for payment of an amount 'in,

allowance', would a procedure for making retire- ment and supplemental salary payments similar to the procedure outlined 200a be suitable for making payments to retired designated and appointed as commissioners to the Court of under Article 1811e? (We note that all retirement and supplemental salary pay- ments are to be made from the General Revenue Fund and that appropriations such expenditures have been made in part to the Employees Retire- ment System of Texas and in part to the Court of Criminal Appeals. The amount appropriated to the Employees Retirement System is based upon the as- sumption that all judges will remain on the retirement payroll.)

"3. Would the designation and appointment of a retired judge under Article 1811e have any effect upon his status with respect to *2 his annuity, time certain options, survivorship benefits, group insurance, or any other allow- able benefit or expense by law?”

Subdivisions (a) and (d) of Section 1 of Article 1811e, Statutes, as amended by Senate Bill 529, Acts 62nd Leg., R.S. 1971, Ch. 462, p. 1646, provide:

“Section 1. (a) The presiding judge of the Court of Criminal Appeals may, with the concurrence of a majority of the judges of the Court of Criminal Appeals, designate and appoint a retired appellate judge or district judge who has consented to be subject to appointment, or an active appellate judge or district judge, to sit as a commissioner of the Court of Criminal Appeals! with the desig- nated judge’s consent. The presiding of the Court of Criminal Appeals may designate appoint as many commissioners as he deems necessary to aid and assist the court in disposing of the business before it.

0 . . . “(d) The compensation of a judge while sitting as a commissioner of the court shall be paid out of moneys appropriated from the General Revenue Fund such purpose in an amount equal to the salary of the of the Court of Criminal Appeals, in or in lieu of compensation he receives as an active of another court. A judge sitting as a commissioner of the court also shall receive his actual travel expense to and from Austin, Texas, and per diem of $25 per day while he is assigned to the Court of in Austin.” 7 of Article 6228b, Vernon’s Civil Statutes, vides for assignment of retired “to sit in any court this State the same dignity, or lesser as that from which they retired.” The appointment under Article 1811e however, is to serve as commissioner on the Court of Criminal Aipeals. There - fore,

in answer to your first question, it is our opinion filing the Chief Justice the Supreme Court of a judge’s consent to assignment pursuant to Section 6228b not sufficient to constitute by the Presiding Judge of the Court of Criminal Appeals as a commissioner.

Hon. Everett

You are therefore advised that a retired judge should file to appointment with the Presiding Judge of the Court of Criminal Appeals prior pursuant to the provisions of Article 1811e.

In Attorney General’s Opinion M-1225 (1972), it was held:

“Senate Bill 529, Acts 62nd Leg., R.S. 1971, Ch. 462, p. 1646 (Article 1811e, Vernon’s Civil authorizing the designation and appoint- Statutes), ment of a retired appellate or district judge or an active appellate or district judge to sit as a commissioner of the Court of Criminal Appeals, does not create an ‘office’, but merely provides additional duties on members of the Judiciary therefore valid. The appointee may be compen- sated. ”

In Attorney ~General’s Opinion M-1246 (1972),it was held:

“5. Subdivision (d) of Section 1 of Article 1811e, Vernon’s Civil Statutes, specifically vides the compensation of said appointee shall be an amount equal to the salary of the judges of the Co- in lieu of the compensa- tion he receives as an active of another court.

“This provision is substantially identical the provisions of Section 7 of Article 6228b, Statutes, relating to assignment retired judges. 7 provides: ‘While as- signed to said court such judges shall be paid an amount equal to the salary judges of said court in allowance.’ “The Employees Retirement System of Texas has construed the provisions above quoted of Article 6228b to authorize the Retirement System to continue to pay retired judges the retirement allowance said during time of assignment and said receive the difference between amount of such retirement and the amount of salary authorized under Section

6228b, Venron’s Civil Statutes” Under such con- struction the Employees Retirement System in *4 budgeting their request for an appropriation to meet the obligation allowances is based on the assumption that all

will remain on the retirement payroll and the Legislature has acquiesced in this construction.

It is therefore our opinion that such construction should be followed and a similar construction should be placed on the provisions of Subdivision (d) of 1811e, Vernon’s Civil Statutes. This construction is consistent the pattern the payment of retired assigned to active duty prescribed by the Legislature ZOOa, Statutes.

“You are therefore advised that an active judge may be paid the difference between his salary as district judge and the amount allowed as a commissioner for each day’s service as a commissioner.”

You are accordingly advised in answer to your second question that the appointee continues to receive retirement from the Retirement System during time of his ap- pointment to be paid in addition thereto the difference between his salary as commissioner and his retirement allowance.

In answer to your third question, it was held in Attorney General’s Opinion M-1225 (1972) that Article 1811e merely provides additional duties on members of the Judiciary, citing Werlein v. Calvert, 460 S.W.Zd 398, 401 (Tex.Sup. 1970), wherein it was held:

,I A retired judge assigned to active duty is authorized to exercise the powers

an office while serving on assignment. He does not by virtue the assignment, however, hold an office that could possibly ‘become vacant’ upon termination of his powers either by death or operation law. See Pickens v. Johnson, 42 Cal.td 399, 267 P.2d 801.”

Therefore you are advised the designation and ap- pointment of a retired judge under Article 1811e will not have any effect upon his status with respect to his annuity, time certain options, survivorship benefits, group insurance, or any other allowable benefit or expense by law.

SUMMARY A retired judge may be appointed as com- missioner to the Court of Criminal Appeals vided he files his to appointment. Said appointee to receive the compensation 1811e, Vernon's Civil Statutes; status is not affected.

Prepared by John Reeves

Assistant Attorney General

APPROVED:

OPINION COMMITTEE

Kerns Taylor, Chairman

W. E. Allen, Co-Chairman

Jack Sparks

Fisher Tyler

James Hackney

Scott Garrison

SAMUEL D. MCDANIEL

Staff Legal Assistant

ALFRED WALKER

Executive Assistant

NOLA WHITE

First Assistant