            THE       AITORNEY    GENERAL
                         OF TEXAS
                       Ausmx.     TRXAS     78711




                                November    21, 1973


The Hoaorablt  Dolph Briacot                        Opinion No. H- 155
Gwtrnor   of Texas
stott cqBito1 Building                              Re:   Whether retired state
Airtin, Tens 78711                                        judges may be appointed
                                                          to an appellate board to
                                                          review decisions of an
Dear Governor Brircoe:                                    administrative  ntture

       You have requested our opinion concerning the propriety of your
appointing retired judges to an appellate board of review for the Office
of Comprehensive   Health Planning.    Such a review board is called for by
newly enacted amendments to the Social Security Act (42 USC 5 491, et seq. ).

      The 92nd Congrtns     of the United States amended    Title XI of the Social
Security   Act by adding § 1122 [Public Law 92.603, 86 Stat. 1329 (1972)].     The
legislation calls for a state planning agency (your Office of Comprehensive
Health Planning) to review proposed capital expenditures and determine
whether they are “necessary”      and would be in conformity with’the standards,
criteria,   or plans developtd by such agency ” for adequate health care facili-
ties in the State. It requires,   in subsection 1122(b)(3), that the state establish
and maintain an appellate administrative      procedure whereby a person propo-
sing such a capital expenditure may appeal the recommendation         of the desig-
nated agency “and will be granted an opportunity for a fair hearing. ”

       You indicate that some of the judges you contemplate appointing pres-
ently are lssibting the Court of Criminal Appeals as Commissioners.       Others
rtrve se special judge* in certain administrative   districts, and one is pres-
ently a prt-time   professor of law 8t a State university,

        Pursuant to Article    5. 4 k, of the Constitution, as amended in 1965, the
LegisJature in 1971 amended Article        6228b. V. T. C. S., the statute which
govtrnt    rht retirement   of justices,  judges and commissioners     of appeUate and
district courta.     Section 7 of the Article,  as amended, now provides in part:




                                   p. 719
The Honorable   Dolph Briscoe,   page   2   (H-155)




                   “During the time judges who have retired under
            the provisions   of the Act are receiving retirement pay
            they shall not be allowed to appear and plead as attorneys
            at law in any court in this State. Any person who has
            retired under the provisions     of this Judicial Retirement
            Act may elect in writing address to the Chief Justice of
            the Supreme Court.      . . to continue as a judicial officer,
            in which instance they shall. with their own consent to
            each assignment,     be subject to assignment.    . . . No
            person who has heretofore      retired under the provisions
            of this Judicial Retirement    Act shall be considered to
            have been a judicial officer of this State after such retire-
            ment, unless such person has accepted an assignment by
            the Chief Justice to ait in a court of this State.”     (emphasis
            added)

      A new s 7a provides:

                    “(a) Any person who has retired under the provisions
            of this Judicial Retirement Act and who within ninety (90)
            days after such retirement     accepts an asrignmant by the
            Chief Justice of the Supreme Court or by a Presiding       Judge
            of an Administrative    Judicial District shall continue as a
            judicial officer.  in which instance he shall, with his own
            consent to each assignment,      be subject to assignment. . . . . ”

      We construe thtot sections of Article 6228b as affording the retired judge
an option aa to whether he will remain a judicial officer. See Werlein v. Cal-
vert. 460 S. W. 2d 398 (Tex. 1970); Buchanan v. State, 471 S. W. 2d 401 (Tex.
Crim. 1971). cert. denied, 405 U.S. 930; Ex parte Hwell,     488 S. W. td 123
(Tex. Crim. 1972).

        Article   2, 5 1, of the Constitution provides for the separation of govern-
mental powers.       After dividing the government into the three basic departments,
legislative,    executive   and judicial,  it provides:
       .




                                   p. 720
The   Honorable    Dolph Briscoe,   page   3 (H-155)



              0,
                      and no person, or collection of persons
                      .

              btiig of one of these departments,   shall exercise
              any power properly attached to either of the others,
              except in the instances herein expressly permitted. ”

        Administrative   determinations of whether a capital expenditure would
be “necessary” or in conformity with certain criteria established by an
executive agency art executive decisions.      Administrative   appellate positions
would be positions in the executive branch of government.       Persons “of” the
judiciary,    including retired judges who remain judicial officers,   cannot con-
rtihationaily   excrcire such executive functions.  See Davis v. City of Lubbock,
326 S. W. 2d 699 (Ttx. 1959); Chemical     Bank and Trurt~ Comprnv v. Falkner,
369 S. W. 2d 427 (Tcx. 1963); Attmney General Opinion H-7(1973).

        We advise you, therefore,    that, in our opinion, any of the retired judges
you have in mind who wish to remain judicial officers under 5 5 7 and 7A of
Article   622gb would be disqualified from accepting appointment to your appellate
administrative   board.  Article   2, $1, Constitution of Texas.    This would apply
to retired judges serving as Commissioners        on the Court of Criminal Appeals
and to special judges now serving administrative       districts.

        If any of the persons you have in mind have not elected to remain judicial
officers,   then, in the absence of any other impediment,   we believe they would
be eligible for appointment to the appellate board you envision.

        of any of the retired judges you have in mind should, while remaining
judicial officers,   accept such appointments and qualify for the administrative
positiona,    they would ipso facto relinquish their judicial status, we believe.
In other words, they could accept. such appointments,       but if they did, they
would no longer be judicial officers.      The reason  for this is illustrated by the
cast of the retired judge who is a professor     at a state univerdty.

       Professors   8t state universities are “of” the executive branch [see
Attorney General Opinion H-6(1973)].      Article 2. 4 I, of the Constitution pro-
hibits a person, being of one department (executive),     from exercising any
powergroperly     attached to a different department (judicial).   [See Attorney
General Opinion H-7(1973); Attorney General Letter Advisory        NO. 65 (1973)].




                                      p.   721
                                                                                           I

                                                                                       .




The Honorable   Dolph Briscoe.    page 4   (H-155)

When a person holding one governmental       position assumes another which
the Constitution does not permit him to hold in conjunction with the first,
the first position is ipso facto surrendered upon assumption of the stcbnd.
Compare Pruitt v. Glen Rose Ind. School Dirt. No. I, 84 S. W. 2d 1004
(Tex. 1935); Thornam v. Abernathy County Line Ind. School Dist.,        290 S. W.
152 (Tex.Comm.App.       1927); City of Houston v. Stewart, ‘87 S. W. 663 (Tex.
1905); see Attorney General Letters,Advisory       No. 62 (1973) and No. 63 (1973).

         Thus, a retired judge who has since become “of” the executive branch
of State government as a professor has relinquished his status as a judicial
officer,   whether or not he originally    chose upon retirement    to retain that
designation.    To the extent that Attorney General Opinions M-842 (1971) and
M-ll94 (1972) would indicate otherwise,       they are disapproved.     Since the
professor    is no longer a judicirl officer,   if he also accepts the post you con-
template, he would then occupy only two executive positions,          a permissible
combination under Article     2,, § 1, of the Constitution.   Since both such posi-
tions would be “non-elective,     ” the exception for non-elective    State officers
in Article 16, 5 40, of the Constitution could apply and a prohibited dual
office holding would not necessarily      result.

       We are of the opinion, therefore,    that the persons you contemplate
appointing may legally accept such appointments,       but by doing so, they will
relinquish their status as judicial officers if they have not already done so.

                                     SUMMARY

                   Retired judges may legally be appointed to serve
             as administrative appellate officers, but those who accept
             and qualify for such appointments may no longer retain
             status as judicial officers.

                                                     F&.&


                                      Attorney   General    of Texas




DAVID hi. KENDALL,        Chairman
Opinion Committee.




                                     p. 722
