Untitled Texas Attorney General Opinion

Honorable Gordon Ii.Lloyd
Executive Secretary
Employees Retlkement System of Texas
Austin 11, Texas
Oplnlon~No. S-221,
Fte~Whethkr a retired judge may.
servs.as.Cbunty Judge and re- ~
oelve pay tierefer, and.at
the &age time receive benefits
under'%he JudtocialRetirement.
Dear Mr. Lloyd: .Act.:.~
,:~
You have request&d an opfnion,whether a person eligible
for retirement under the Judicial~IWtWemenb System "can occupy
the position of County Jndge~and, ,& the same time, receive a
retirement annuity under the prov$sLons of the Judicial Retirement
ActD. .'.:
Section 7 cifA.r*iole6228b, Verno&s: Ci-vi-l
Statutes,
(Judicial RetirementsAcb) provMekr
"Judges retired &der the provisions
of this Act shall be judicial offi&ra of the
State, and during the time they are receiving
retirement pay shall n& {be allowed to appear
rindPlead ai attorney& a6 law 1n:any Co&% of
with tiheir
record in thi& State, a6d shall~,.
own consent, be:,lrubjtit
ljd-assignmentby the
Chief Justice of Dhe-StipFeme~
Court to.sit In
'any Court of this Stiateb;fthe same dignity,
or lesser, as that franiwhich they retired,
and If in a District Court, und&r the same
rules as provided by the'present Adminlstra-
tlve Judloial Act, and wh$le so assigned, shall
have all the powers of Judge8 thereof. While
assigned to said Court such Judges shall be paid
an amount equal to the salary of Judgesnof said
Court, In lieu of retirement allowance,.
(Emphasis added.)
Hon. Gordon Ii.Lloyd, page 2 _ (Opinion S-221)
Under the provisions of the above Act, when a District
Judge retires from office he continues to draw a monthly salary
as a judicial officer of the State of Texas. Therefore, It Is
our opinion that a Judge receiving retirement benefits under the
provisions of Article 6228b holds-a clvll,offlce of emolument.
The office of County Judge is a civil office of emolu-
ment, Article V, Sec. ~15; Tex. Con&.; Williams v. Huntress
Tex . 272 S.W.2d 87, 89 (1954). Peden v. Valentine, 196 m.
1006 (TexIClv.App. 1917, error ref. I .
We agree with the District Judge who contemplates re-
tiring under the provisions of Article 6228b that there is no
provision In the retirement statutes that would prohibit him
from drawing retirement pay while he Is serving as County Judge;
however, Section 40 of Article XVI.of the Constitution of Texas
provides that no person shall hold or exercise at the same time
more than one Oivil~offlce~of e.molument. (Exceptions not appli-
cable). Therefore, you are advlsed.that under the provisions
of Section 40 of Article XVI of the Constitution of Texas a per-
son cannot hold or exercise the offloe of County Judge and at
the same time hold or exercise the office of Retired Judge and
receive a retirement annuity under the provisions of.Article
6228b.
In connection with the foregoing, it should be pointed
out that it is not mandatory that a District Judge make appllca-
tion for or receive the retirement benefits under the provisions
of the Judicial Retirement Act as soon as he vacates his office
as District Judge. On the Contrary, in the instant case, the
District Judge can occupy the office of County Judge after the
expiration of his present term as Dls~trlctJudge so long as he
does not make application for orereceive the.retlrement ~beneflts
under the provisions of the JudicIalRetIrement Act. Further,
after he vacates the office of County.Judge he may then make appli-
cation for and receive theeoompensatlon allowed a Retired District
Judge under the provisions of the Judicial Retirement Act.
..,-- ,
Hon. Gordon H. Lloyd, page 3. (Opinion S-221)
Section 40 of Article XVI of the Constitu-
tion of Texas prohibits a person eligible
for retirement under the Judicial Retire-
ment System from occupying the office of
County Judge and, at the same time, receiv-
ing a retirement annulty,under the provisions
of Article 6228b, V.C.S.
--
Yours very truly,
APPROVED: JOHN BEN SHEPPERD
Attorney General of Texas
J. C. Davis, Jr.
County Affairs Division
Wary K. Wall
Reviewer
W. V. Geppert
Reviewer
C. W. Gray
Special Reviewer
Davis Grant
First Assistant
John Ben Shepperd
Attorney General
.JR:zt