Untitled Texas Attorney General Opinion ( 1972 )

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
P. 0. Box 12337, Cap it01 Station to appointment of a re-
Austin, Texas 78711 tired judge to serve as
a commissioner of the
Dear Mr. Anschutz: Court of Criminal Appeals.
Your request for an opinion asks the following questions:
"1 Does a retired judge who has previously
filed with the Chief Justice of the Supreme Court
his election to continue as a judicial officer
subject to assignment meet the requirement of
having 'consented to be subject to appointment'
under Article 1811e? If not, how does such
judge so qualify?
"2 . Taking into account the parallel pro-
visions of both Article 6228b and 1811e providing
for payment of an amount 'in, lieu of retirement
allowance', would a procedure for making retire-
ment and supplemental salary payments similar to
the procedure outlined in Article 200a be suitable
for making payments to retired judges designated
and appointed as commissioners to the Court of
Criminal Appeals 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 for 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 retired 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 retirement status with respect to
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Hon. Everett L. Anschutz, page 2 (M-1247)
his annuity, time certain options, survivorship
benefits, group insurance, or any other allow-
able benefit or expense provided by law?”
Subdivisions (a) and (d) of Section 1 of Article 1811e,
Vernon’s Civil 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 judge of
the Court of Criminal Appeals may designate and
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
for such purpose in an amount equal to the salary
of the judges of the Court of Criminal Appeals,
in lieu of retirement allowance or in lieu of the
compensation he receives as an active judge 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
Criminal Appeals in Austin.”
Section 7 of Article 6228b, Vernon’s Civil Statutes, pro-
vides for assignment of retired judges “to sit in any court of
this State of 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 that the
filing with the Chief Justice of the Supreme Court of a judge’s
consent to assignment pursuant to Section 7 of Article 6228b is
not sufficient to constitute his consent to appointment by the
Presiding Judge of the Court of Criminal Appeals as a commissioner.
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Hon. Everett L. Anschutz, page 3 (M-1247)
You are therefore advised that a retired judge should file his
consent to appointment with the Presiding Judge of the Court of
Criminal Appeals prior to appointment 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
Statutes), authorizing the designation and appoint-
ment of a retired appellate or district judge or
an active appellate judge 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 and
is 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 pro-
vides that the compensation of said appointee shall
be an amount equal to the salary of the judges of
the Co- Criminal Appeals in lieu of the compensa-
tion he receives as an active judge of another court.
“This provision is substantially identical
with the provisions of Section 7 of Article 6228b,
Vernon’s Civil Statutes, relating to assignment of
retired judges. Section 7 provides: ‘While as-
signed to said court such judges shall be paid an
amount equal to the salary of judges of said court
in lieu of retirement 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 of
said judges during the time of assignment and said
retired judges receive the difference between the
amount of such retirement allowance and the amount
of salary authorized under Section 7 of Article
6228b, Venron’s Civil Statutes” Under such con-
struction the Employees Retirement System in
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Hon. Everett L. Anschutz, page 4 (M-1247)
budgeting their request for an appropriation to
meet the obligation of retirement allowances is
based on the assumption that all retired judges
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
Section 1 of Article 1811e, Vernon’s Civil Statutes.
This construction is consistent with the pattern
for the payment of retired judges assigned to active
duty prescribed by the Legislature in Article ZOOa,
Vernon’s Civil 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 his retirement
allowance from the Retirement System during the time of his ap-
pointment and is 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 of
an office while serving on assignment. He does
not by virtue of the assignment, however, hold
an office that could possibly ‘become vacant’
upon termination of his powers either by death
or operation of law. See Pickens v. Johnson,
42 Cal.td 399, 267 P.2d 801.”
Therefore you are advised that the designation and ap-
pointment of a retired judge under Article 1811e will not have any
effect upon his retirement status with respect to his annuity, time
certain options, survivorship benefits, group insurance, or any
other allowable benefit or expense provided by law.
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Hon. Everett L. Anschutz, page 5 (M-1247)
SUMMARY
A retired judge may be appointed as com-
missioner to the Court of Criminal Appeals pro-
vided he files his consent to appointment. Said
appointee is to receive the compensation provided
in Article 1811e, Vernon's Civil Statutes; his
retirement 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
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