Untitled Texas Attorney General Opinion ( 1972 )

, THE AYBTORNEY GENERAL OF-XAS Honorable Robert S. Calvert Opinion No. ~-1246 Comptroller of Public Accounts State Finance Building Re: Whether judges, including Austin, Texas 78774 retired judges, may be paid actual travel expense while serving in the City of Austin under appointment, and re- Dear Mr. Calvert: lated questions. Your request for an opinion reads as follows: "This department has been requested by the Honorable John Onion, Jr., presiding Judge of the Court of Criminal Appeals to ask the following questions regarding Article 1811e, R.C.S. in order for the provisions of this Article to be put into effect in an orderly manner. "The Questions are: "1. Can a Judge, including a retired Judge, legally be paid his actual travel expense while in the city of Austin under an appointment? "2 Can a Judge, including a retired Judge, legally-be paid the $25.00 per day for any period of time that he is not in Austin on that day under an appointment? "3. Can a Judge, including a retired Judge, legally be paid the $25.00 per day when said Judge resides in Austin under an appointment? "4. Can a Judge, including a retired Judge, legally receive actual expenses when he resides away from Austin for returning to his residence nightly or on weekends while under an appointment as a commissioner either on a case or cases basis or for a period of time? "5. Can an active District Judge be paid the -6099- Hon. Robert S. Calvert, page 2 (M-1246) difference between his salary as District Judge and the amount allowed as a commissioner for each days service as a commissioner or must the District Judge be paid the amount allowed as a commissioner 'in lieu of' his salary as District Judge?" Subdivision (d) of Section 1 of Article lElle, Vernon's Civil Statutes, as amended by Senate Bill 529, Acts 62nd Leg., R.S. 1971, Ch. 462, p. 1646, provides: "(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 er diem of $25 per day while he is asiigned ;o thePCourt of Criminal Appeals in Austin." (Emphasis added.) It was held in Attorney General's Opinion M-1225 (1972): "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." An appointee as commissioner is entitled to receive his actual travel expenses to and from Austin. Such appointee is also entitled to receive a per diem of $25.00 per day "while he is assigned." Your questions are accordingly answered as follows: 1. A judge, including a retired judge, appointed as commissioner, is legally entitled to his actual travel expenses "to and from Austin, Texas." Therefore he does not receive any "travel expense" while in the City of Austin under an appointment. -6100- I Hon. Robert S. Calvert, page 3 (M-1246) 2. A judge, including a retired judge, is entitled to receive a per diem of $25.00 per day "while he is assigned". There- fore such judge may legally be paid the $25.00 per day for any day he is under an appointment, whether he is in Austin or not. 3. The $25.00 per diem provided for in Article 1811e, Vernon's Civil Statutes, applies to all appointees whether the appointee resides in Austin or elsewhere. Therefore a judge, including a retired judge, may legally be paid the $25.00 per day when said judge resides in Austin under an appointment. 4. An appointee is entitled to his actual travel ex- penses "to and from Austin." Therefore a judge, including a re- tired judge, may legally~receive his actual travel expenses when he resides away from Austin for returning to his residence nightly or on weekends while under an appointment as a commissioner either on a case or cases basis or for a period of time. 5. Subdivision (d) of Section 1 of Article 1811e, Vernon's Civil Statutes, specifically provides that the compensation of said appointee shall be an amount equal to the salary of the judges of the Court of Criminal Appeals in lieu of the compensation he re- ceives as an active judge of another court. This provision is substantially identical with the pro- visions of Section 7 of Article 6~228b, Vernon's Civil Statutes, re- lating to assignment of retired judges, Section 7 provides: "While assigned to said court such judges shall be paid an amount equal to the salary of judges of said court in lieu of retirement allow- ance." The Employees Retirement System of Texas has construed the provisions above quoted of Article 6228b to authorize the Re- tirement 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, Vernon's Civil Statutes. Under such construction the Employees Retirement System in 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 con- struction 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 -6101- . Hon. Robert S. Calvert, page 4 (M-1246) 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. SUMMARY The compensation of an appointee under the provisions of Article 1811e, Vernon's Civil Statutes, is paid from the General Revenue Fund in an amount equal to the salary of the judges of the Court of Criminal Appeals. Said appointee is also entitled to his travel exp nses to and from Austin and a per diem of $25.fi 0 per day while he is assigned and serves. /7 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 -6102-