Honorable   Richard   E. McDaniel
County Attorney
Shelby County
Center,   Texas.                                     Opinion     No. UW - 26

                                                     Re:~Is    the Commissioners'
                                                          Court required      to
                                                          furnish   a retired
                                                          District   Judge an
                                                          office,   and, If they
                                                          are not required       to
                                                          do so, is it nor-
                                                          missible   for the
                                                          County to furnish
                                                          him an office     or
                                                          rent him an office
                                                          in the County Court-
Dear Mr. McDaniel:                                        house?

            Your request     for an opinion    concerns    the authority   of
a County Commissioners*        Court to furnish    office   space for a re-
tired District   Judge.,       In this connection,      you have presented
three questions,   which     are In substance    as follows:

            (1)   Is the Commissioners'     Court required to
                  furnish a retired   District   Judge an office?

            (2)   If they are not       required  to do so, is it
                  psrmissible     for   the county to furnish   a
                  retired   District     Judge an office   in the
                  courthouse?

            (3)   Is it p8ImiSSiblO     for the county to rent           a
                  retired   District  Judge an office  in the
                  courthouse    when this space is not other-
                  wise being used?

            Section    2 of Article      3899b,   Vernon's     Civil   Statutes,
provides:
                 "Suitable   offices   and stationery    and blanks
            necessary    in the performance    of their   duties may
            in the discretion      of the Commissioners'    Court also
Hon.   Richard   E. McDaniel,           page 2 -   ww-26



             be furnished  to resident District  Judges,. . .
             and may be paid for on order of the Commissions
             ers t Court out of the County Treasury.”
             (EmphaSis ours).

            The express   provisions     of this Section     clearly   estab-
lish the discretionary     power of the Commissioners’          Court to pro-
vide office    space for a resident      District  Judge; therefore,since
the above quoted statute       is discretionary    in nature,      the Commiss-
ioners’   Court is not required      to furnish   an office,    for an active
or retired   District   Judge.

           Since Section    2 of Article   3899b is not mandatory In
nature,  we must now consider     your second question,    as to whether
the Commissioners’     Court would be permitted    to furnish  a retired
District  Judge office    space within   the courthouse.

             Section   l-a,   Article      V, Constitution   of Texas,provides:

                   “The Legislature     shall   provide   for the
             retirement   and compensation        of Judges and Commlsa-
             ioners   of the Appellate      Courts and Judges of the
             District   and Criminal     Distrfct    Courts on account  of
             length of service,      age, or disability,      and for thefir
             reassignment     to active   duty where and when needed.
             (Emphasis ours .)

          Pursuant to this constitutional     mandate, the 51st Legi-
slature enacted House Bill   33 (Acts,   51st Leg., R.S.,  1949, ch.
99, p* 181), whfch has been codified     as Article 6228b, V.C.S.
Section 7 thereof  provides:

                   “Judges retired      under the pro’visions     of this
             Act e . ~ shall,       wfth their   own consent,     be subject
             to assignment     by the Chief Justfce         of the Supreme
             Court to sit in any Court of this State of the same
             dignity,    or lesser,     as that from whfch they retired,
             and if in a District        Court, under the same rules as
             provided    by the present      adminfstrative     judfcial  act,
             and while so assigned,        shall have all the powers of
             judges thereof      . . ** (Emphasis ours).
            It seems clear     that a District    Judge retired    under the
provisions    of Section   7 of Article    6228b, though subject     to
assignment   by his consent,     will   have the powers of the judges of
the court to which assigned        only whi.le so assigned.       In the
light   of this fact,    it seems that only while serving       in this
Hon. Richard    E. McDaniel,      page 3 - ww-26



capacity   could the District        Judge possibly       uallfy  as a resident
~judge as required     by Section     2 of Article    3 8 qqb.   Therefore,   in-
asmuch as the retired       District     Judge involved      In the Inquiry   is
not, at this time, assigned          to sit in any court of this State,          he
Is not a resident      District    Judge within     the meaning of Section       2
of Article    3899b.   Consequently,      in answer to your second question,
you are advised      that the Commissioners I Court does not have
authority   to furnish     office    space in the courthouse       for a retired
District   Judge.

            In view of the fact that we have answered both of the
foregoing   questions   in the negative,   it now becomes necessary
that we pass on your third question       as to whether it Is per-
miss ible for the Commissioners ’ Court to rent office      space in the
courthouse   to a retired   District   Judge when this space is not
otherwise   being used.

              In the case of Dodson v. Marshall,      11.8 S.W. 26, 621,
(Tex.Clv.App.      1938, error dism.)   the court held that the Comm-
issioners’     Court had the discretionary     power to lease space in an
unused alcove      in the rotunda of a county courthouse.         The opinion
upheld this rental      where the exercise   of the privilege     would not
Interfere     with the proper use of the courthouse       or cause the
county any expense,      and would afford   a convenience    to those trans-
acting    business   in the courthouse.

              In Tarrant County v. Rattikin          Title   Co., 199 5. W. 2d,
269, (Tex. Civ. App. 1947) the court held that the county had the
duty to provide      space for the examination          of public    records    and
that where the county went to the expense of providing                   a special
room for the use of abstract         companies      it could not charge rent
for this office      space.      The Court I, in this opinion,        distinguish-
ed the Dodson Case on the grounds              that the cold drink stand was
erected   in the courthouse       for that specific        purpose and was not
located   in that part of the courthouse            designated    for the use of
county off Ices.      To allow the Commissioners’           Court to lease or
rent office     space to private      enterprise      which was originally
erected   for the use of public        office,     would be placing      the
Commissioners t Court and private           enterprise     In the relation      of
landlord    and tenant,     and in a sense would be applying            public
property    for private     use, which is against         the laws of the State. ’

             It has been concluded    above that a District         Judge
retired    under the provisions   of Section    7 of Article       6228b has
no active    powers as a District    Judge until    assigned      under the
provisions    of that Section.      It is further     concluded,      therefore,
that,   inasmuch as he has no official      function,      unless   reassigned,
he is to be considered      as any other private      citizen     and, as such,
Hon.    Richard   E. McDaniel,    page 4 - ww-26



Is prohibited   by the holding  in the Rattfkin  Title   Case from
renting  office  apace in a county courthouse.      Consequently,
your third question   Is answered in the negative.

                                    SUMMARY

                          The Commissioners'     Court is not
                   required   nor permitted    to furnish    office
                   space for a retired     District    Judge. Hei-
                   ther is the Court authorized        to rent off-
                   ice apace in the courthouse        to a retired
                   judge.

                                          Yours   very   truly,



                                          WILL WIlsOR
                                          Attorney  General
                                                                  n


                                        BY*#~                  &'b'
                                           Wayla     Rivers,   Jr.
                                           Assistant   Attorney    General

m:zt

APPROVED:

By     H. Grady Chandler,
            Chairman
