                             AUSTIN,TEXAR        78711
CRAWFORD      c. MARTlN


                                   September 27, 1972


       Honorable John F. Onion, Jr.         Opinion No. M-1225
       Presiding Judge
       Court of Criminal Appeals            Re:    Construction of and validity
       Box 12308, Capitol Station                  of Article 1811e, Vernon's
       Austin, Texas 78711                         Civil Statutes.

       Dear Judge Onion:

                     Your request for an opinion reads in part as follows:

                    "In my administrative capacity as Presiding
               Judge of the Court of Criminal Appeals, I would
               like to submit to you the following question and
               request your opinion so that the State Comptroller's
               office will have some guidance in the matter in-
               volved.

                    "1. May an active appellate or district
               judge be designated and appointed under the pro-
               visions of Article 1811e, V.A.C.S., (As amended
               Acts 1971, 62nd Leg. R.S., p. 1646, Ch. 462;
               Acts 1971, 62nd Leg., 1st C.S., p. 14, Ch. 2)
               to sit as a Commissioner of the Court of Criminal
               Appeals for a designated period of time 'or for a
               particular case or cases and be compensated with-
               out violating Article 16, Sets. 12, 33 and 40,
               Texas Constitution or any other constitutional
               or statutory provision of the law?"

                     Senate Bill 529, Acts 62nd Leg., R.S. 1971, Ch. 462,
           p. 1646 (Article 1811e, Vernon's Civil Statutes), provides in
           part:

                    "Section 1. (a) The presiding judge of the
               Court of Criminal Appeals may, with the concurrence
               of a majority of the judges of the Court of Criminal
               Appeals, designate and appoint a retired appellate
               judge or district judge who has consented to be
               subject to appointment, or an active appellate
               judge or district judge, to sit as a commissioner


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Hon. John F. Onion, Jr., page 2   (M-1225)



     of the Court of Criminal Appeals, with the desig-
     nated judge's consent. The presiding judge of
     the Court of Criminal Appeals may designate and
     appoint as many commissioners as he deems necessary
     to aid and assist the court in disposing of the
     business before it."

          It is well settled that the Legislature is authorized
to place added duties on members of the Judiciary without creating
an office in violation of Sections 12, 33 and 40 of Article XVI
of the Constitution of Texas. Eucaline Medicine Co. v. Standard
Inv. Co., 25 s.w.2d 259, 261 (Tex.Civ.App. 1930, error ref.);
Jones v. Alexander, 122 Tex. 328, 59 S.W.2d 1080 (1933); Jordan
v. Crudgington, 149 Tex. 237, 231 S.W.2d 641 (Tex.Sup. 1950);
Attorney General's Opinion M-305 (1968). It was held in Jones v.
Alexander, supra:
            II
             . . . Under a provision of the Constitution
     then existing, substantially identical with that
     provision we now have under consideration, the
     Supreme Court in the case of Powell v. Wilson,
     16 Tex. 59, said:    'But does it follow that the
     SSllE,  or at least some of the same duties may not
     be attached to two offices, to be exercised by
     the incumbents concurrently? or that the duties
     of an office may not be to act as substitute for
     another? We think not. * * * It does not consti-
     tute them incumbents of more offices than one:
     or subject then to the charge of holding or exer-
     cising two or more offices at the same time.' See
     also, Kirk v. Murphy, 16 Tex. 654, 67 Am.Dec. 640;
     Gaal v. Townsend, 77 Tex. 464, 14 S.W. 365.

          "Unless the duties placed upon the district
     judges by virtue of this act create more offices than
     one, or subject them to the rule that they cannot
     hold two or more offices at the same tine, or that
     the additional duties imposed are incompatible with
     their other duties conferred upon them by law, then
     the act cannot be condemned.  The duties assigned
     by this act partake of the same general character-
     istics of other duties imposed by law. The duties
     assigned are made coterminous, in that the district
     judge ceases to sit as a member of the juvenile
     board when his term of office expires."

          In Werlein v. Calvert, 460 S.W.2d 398, 401 (Tex.Sup.
19701, it was held:
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Hon. John F. Onion, Jr.,, page 3      (M-1225)


          II
               . A retired judge assigned to active
                   .   .

     duty is authorized to exercise the powers of
     an office while serving on assignment.   He does
     not by virtue of the assignment, however, hold
     anoffice  that could possibly 'become vacant
     upon termination of his powers either by death
     or operation of law. See Pickens v. Johnson,
     42 Cal.2d 399, 267 P.2d 801."   (Emphasis added.)

          In construing the provisions of Article 1811a and
Article 1811c, V.C.S., the Court of Criminal Appeals held in
Ex Parte Sparks, 277 S.W.2d 916 (Tex.Crin. 1955) that:

          "In no event does the commissioner have a
     voice in the approval or rejection of his opinion;
     he acts only in an advisory capacity, as an aid
     to the court. He performs no judicial function
     in so far as a decision of,the case is concerned.
          II
           . . .

          "The conclusion is reached that Commissioner
     Dice, in the preparation of the opinion in this
     case, did not perform a judicial function."

          Since the Commissioner does not performa  judicial
function, it is our opinion that no incompatibility exists
between the constitutional duties of the appointee and.the
duties that nay be imposed upon him pursuant to the provisions
of Article 1811e, V.C.S.

          In construing the provisions of Article 200a, Vernon's
Civil Statutes, it was held in Attorney General's Opinion M-305,
supra:

          "If the foregoing amendment tom Section 2 of
     Article 200a has the effect of now creating an
     'office' as distinguished from constituting 'super-
     a-duties     that the legislature was authorized
     to require district judges to perform', Section
     40 of Article XVI of the Constitution of Texas would
     prohibit a district judge from holding the ad-
     ditional office. We do not believe the legislature
     had any such intention. Likewise, Section 30 of
     Article XVI would limit the term of office to two
     years only, contrary to the four year term provided
     by the legislature.   It is our opinion, however,

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Hon. John F. Onion,, page 4   (M-1225)



     that since the legislature did not change by the
     anendatory language the duties of the presiding
     judge of the administratmstrict,      the con-
     struction placed on Section 2 by the Court in
     Eucaline Medicine Co. vs. Standard Inv. Co., supra,
     remains equally applicable to Section 2, as amended.
     Therefore, no 'office' within the meaning of
     Sections 30 and 40 of Article XVI of the Consti-
     tution of Texas was created. Eucaline Medicine Co.
     vs. Standard Inv. Co., supra; cf. Aldine Independent
     School District vs. Standlev, 154 Tex. 547, 280
     S.W.Zd 578 (1955). We therefore are of,the opinion
     that the legislature merely placed added duties on
     regularly elected district judges pursuant to pro-
     visions of Section 7 of Article V, Constitution of
     Texas, and provided for the 'reassignment to active
     duty where and when needed' of voluntarily retired
     district judges pursuant to provisions of Section
     la of Article V, Constitution of Texas."

          In view of the foregoing it is our opinion that the pro-
visions of Senate' Bill 529, Acts 62nd Leg., R.S. 1971, Ch. 462,
p. 1646 (Article 1811e, Vernon's Civil Statutes), do not create
an additional office, but merely place additional duties on mem-
bers of the Judiciary when they are assigned under the provisions
of Article 1811e, Vernon's Civil Statutes. Therefore, an active
appellate or district judge may be designated and appointed to sit
as a commissioner of the Court of Criminal Appeals without vio-
lating Sections 12, 33 or 40 of Article XVI of the Constitution
of Texas.

                        SUMMARY

          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 nay be compen-
     sated.
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Hon. John F. Onion, Jr., page 5       (M-1225)



Prepared by John Reeves
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Jack Sparks
Fisher Tyler
John Banks
Scott Garrison

SAMUEL D. MCDANIEL
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOLA WHITE
First Assistant




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