            THE     A~TV~RNEY            GENERAL
                        OF   TEXAS
                     AUS.X.XN.
                             I'exal~78711

                       November 27, 1967


Hon. Robert S. Calvert             Opinion No. N-161
Comptroller of Public Accounts
State Capitol                      Re:   Whether there is pre-
Austin, Texas                            existing law for the pay-
                                         ment of submitted claims
                                         for per diem, by a retired
                                         Justice of the Court of
                                         Civil Appeals, on an assign-
                                         ment for holding court in
                                         a District Court not cover-
                                         ing the county of his resi-
Dear Mr. Calvert:                        dence.

          By recent letter to this office you have requested
an opinion in regard to the abwe stated matter. We quote,
in part, from your letter as follows:

         "This department has received two claims
    for $25.00 per day under the prwisions of
    Senate Bill 349, Acts of the 57th Legislature,
    Codified as Article 200a, R.C.S., Section 2a.
    Subsection (41, for a retired Justice of a
    Court of Civil Appeals, on an assignment by
    the Chief Justice of the Supreme Court under
    Senate Bill 397, Acts of the 60th Legislature
    ,&o a District Court other t&an one including
    the county of his residenced

          "This question has arisen in this ae-
     partment; Is there a pre-existing law for the
     payment of these claims as the Judge is not a
     retired District Judge?"

          Article 2OOa, Vernon's Civil Statutes, also known
as the Administrative Judicial Act, among other things, auth-
orizes per diem expenditures for judges who are assigned to



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Hon. Robert S, Calvert, page 2 (M-161)



sit in other districts or counties. Subsection (4) of Section
2a of Article 2OOa, is quoted, in part, as follavs:
           " . . . judges who are required to hold
      court outside their own districts ana out
      of their awn counties under the provisions
      of this Act, shall receive a per diem of
      Twenty-five ($25.00) Dollars for each day,
      or fraction thereof, which they spend out-
      side their said districts and countiee in
      the performance of their duties; . . . .'I

          Article 2OOa, standing alone applies only to District
Judges, and the Judge is a recent retired Court of Civil Ap- -
peals Judge, Lsee Attorney General's Opinion No. M-151 (1967)/,
having retired on September 1, 1967,~under the provisions of
Article 622813,Vernon's Civil Statutes, as amended by Senate Bill
397, Acts 60th Legislature, Regulal:8eBsion;,1967, chapter 346,
page 820. The amendment was effective June 8, 1967.

            Section 7 of Senate Bill 397 is quoted. in part,
as   follows:
            ”
                .  Anv oerson who has retired under
                    .   .


      the Drwisions of this Judicial Retirement
      Act &t.    6228b. V.C.S./ mav elect in writing
      addressed to the Chief Justice of the Supreme
      Court within ninety (90) days after such re-
      tirement, or within ninety (90) claysafter the
      effective date of this amended Section, wbich-
      ever is the later date, to continue as a iudi-
      cial officer, in which instance thev shall,
      with their own consent to each assignment, be
      subject to assisnment bv the Chief Justice of
      the Surxeme Court to sit in anv court of this
      state of the same disnitv. or lesser, as that
      from which thev retired, and if in a District
      Court, under the same rules as provided bv
      the present Administrative Judicial Act, &t.
      ZOOa, V.C.SJ and while so assigned, shall
      have all the powers of judges thereof. . . .'I
       (Emphasis added.)


                                -155.
-      ,




    Hon. Robert S. Calvert, page 3 (M-161)



              The underlined portion of Section 7 clearly au-
    thorizes retired judges of the appellate courts, such as the
    judge in question, to sit as a district judge under the pro-
    visions of Article 200a, V.C.S.

              Construing Articles 200a and 6228b. as amended, to-
    gether, we are of the opinion that there is pre-existing stat-
    utory authority to pay the per diem claims as set out in your
    opinion request.

                               SUMMARY

                Article 6228b, V.C.S., as amended, which
           authorizes retired appellate judges to serve
           as district judges, under the authority of
           Article ZOOa, V.C.S., authorizes payment of
           tiieper diem claims of a retired appellate judge
           under the facts as submitted.

                                             truly yours,

                                                z-w=
                                                 C. MARTIN
                                                ',Generalof ,Texas

    Prepared by James C. McCoy
    Assistant Attorney General

    APPRCVRD:
    OPINION COMMITTEE

    Hawthorne Phillips, Chairman
    Kerns Taylor, Co-Chairman
    W. V. Geppert
    Arthur Sandlin
    Malcolm Quick
    Charles Rose

    A. J. CARUBBI, JR.
    Staff Legal Assistant




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