,




               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

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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.

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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


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                                                                      .




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

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