                       MAY18, 1950

Hon. C. Ii.Cavness           opinion HO. ~-1061
State Auditor
Austin, Texas                Re:   Judicial retirement, ln-
                                   cludlng assignment and
                                   compensationof retired
                                   Judges selected for ac-
Dear Mr. Cavnesa:                  tlve trial court duties.
          Your request for an opinion on several ques-
tions relative to the assignment ind compensationof
retired District Judges.selectedfor active 'trialcourt
duties advlsetithat:
            "SeveralDlstrlat Judges, who hive re-
       tired and are now recelvl benefits under
       the provisions of Article. 2 228b, have ex-
       pressed,a wllllngness,If authorizedunder
       the Constitutionand Laws of this State, to
       sit asp J’udgee in any of the District Courts
       of this State. I am informed that in some
       Ju@clal D$strlcts where the do&et la some-
       what crowded that the service of these re-
       tired District Jtidgea 1s needed.’
          Ye shall quote and answer your specific ques-
tions in the order submitted.
            "1. Would a former District Judge,
       retired and recelvlng retirement pay under
       the provlslons of Vernon's Texas Civil,Stat-
       utes, 6228b, consenting thereto and assigned
       to sit as Judge In any Dletrlct Court of
       this State, and while so acting under such
       assignment,have all.the powers of the regu-
       larly elected or appointed, qualified and
       acting Judge of such District Court?"
            Section l-a, Article 5, Constitutionof Texas,
provides:
HOa. C. Ii.Cavaess, page 2     (v-1061)


             "The Legislature shall provide for the
        retirement and co~eneatlon of Judges and
        Coeclesionersof the AppellateCourts and
        Judges of the District and Crlmlnal District
        Courts .onaccount of the length of service,
        age or dlsablllt~,and for their reasslgu-
        ment to active duty where and when needed.*
        (Emphasis added throughoutunless otherwise
        indicated.)
          Pursuant to this constitutionalmandate, the-
51st Legislature enacted House I311133 (Acts slat Leg.,
R-S., 1949, Ch. 99, p..181), which has been codified a8
Article 6228b. V.C.S. Section 7 thereof provides:
             "Judges retired under the provisions
        ot this Act shall be judicial oillcera oi
        the State, and during the tfme they are
        receiving retlreme pay rhall not be al-
        lowed to appear anr ~plead as attorneys at
        law in any Court ol record in this State,




                           la11 be paid an amount
    .   equal to the salary oi Judges of said Co-t,
+       in lieu of retirement allowance.' '
          Under the express provisions ot this section,
any retired Judge assigned to sit as Judge in any Dls-
trlct Court of this State is given the powers oi the regu-
lar Judge of such,District Court while so assigned. Your
first question is accordinglyanswered la the affirmative.
             "2. Ii question '1' is answered 'yes,'
        then, who is authorlzed.toas8lgn each re-
        tired District Judge to'do trial work? Is ;
        such assignment made by the Chief Jkstlce
        of the Supreme Court or by the .lWge oi the
        AdmlnlstratlveJhdlclal Dlstrlct where such
        retired Dlstrlct Judge may reside?"
‘*   .




          Hon. C. H. Cavneas, page 3   (v-1061)


                    In the above quoted provisions of Section 7
          of Article 6228b, we find that the authority to assign
          retired Judges to sit in District Courts of this State
          is vested in the Chief-Justiceoftthe Supreme Court.
          The Provision that such assignment shall be "under the
          same rules as provided by the present Admlnlstratlve
          Judicial Act" (Art. 200a, ,V,.C.S.),
                                             does not divest the
          Chief Justice o'f:theSupremeCourt of authority to make
          the lnltlal assignment or place such authority in the
          Presiding Judge of the AdministrativeJudicial District
          where the retired Judge reside&..
                   "3. Section 7 of'the Act Is one deal-
              in&with the assignmentof retired Judges
              to.actlve duties. The openingwords of that
              section are: 'Judgesretlred~under the pro-
              vlslons of ,thlaAct .***.I A question has
              arisen ln'the minds of some of the JWges
              whetherx'Dlstrict Judge who retired before
              the effeidlve date of.the Act, falls wlthln
              that designation. May I ask you to construe
              this section of the A&?"~,
                    Judges entitled to retire under the provisions
          of Article 6228b are set out in Sections 2, 3 and 4
          thereof,.whlchread as follows:
                   %&.   2.  Any &dge in this State may,
              at hia,option; retire from regular active
              service after attaining the age of slxty-
              five (65) years and after serving on ones
              or more of the Courts of this State at'leaat
         .~   ten (10) yeclrs-continuouslyor otherwise,
              provided that his last service prior to re-
              tirement ehall,be contlnuous,fora period of
              not less.than.one(1) year.    If he retires
              under the provisions of this Act and complies
              with the requirementsof this Act he shall,
              during the remafnder of his lifetime, receive
              retirement pay from the State of Texas .'ln
              monthly installments,~lna sum equal to five
              per cent (5%) of the amount he was recelv-
              ing from the State of Texas,-atthe'tlme-of
              retirement, multiplied by the number of year8
              of aervlce on one or more .ofthe Courts of
              the State: provided, however, that the amount
              of retirement pay shall in no case be more
              than fifty per cent (50$) ~ofthe~total amount
                             ;




Hon. C. R. Cavness, page 4       (v-1061)


     being received by him annually from the State
     of Texas
          . -at the
                 .. tiiseof retirement;
                                 _-_    .and such
                                              _   _
     amount or retlrement pay shall not be reQuceQ
     during the llfeflme of the Jiwigecoring under
     the provisions of this Act.
         'Sec. 3. If a Judge has served on one
    (1) or more of the Courts of this State at
    least ten (10) years, continuouslyor other-
    wise, and because of dlsablllty can no long-
    er perform his regular judicial duties as
    such Judge, he~shall be retired from regular
    active I)ervlce,irrespectiveof his age, and
    shall be entitled to retirement pay during
    the remainder of his lifetime or during the
    period of such dlsablllty,under the same con-
    dltlons and llmltatlonaas provided iinSectlon
    2 OS this Act. The period of ,disabilltyas
    provided in this Section shall be determlned
    as provided in Section 9 of this Act.
          *Sec. 4. Any person who was, or but for
    the abolishmentof such Court before the ex-
    plratlon of his term of office would have been,
    serving as a Judge of a Court of this State at
    the time the Retirement Amendment,House 3olnt
    ResolutionHo. 39, was adopted November 2,
    1948, and who had served on one (1) or more
    of the Courts of this State at least ten (10)
    years, continuouslyor otherwise and had at-
    tained the age a? sixty-five (65j years at the
    time of the adoption of the Retirement Amend-
    ment, shall be deemed to come within the pro-
    vlelons gf this lar and be entitled to receive
    retiremen+pay under the same terms and llmlta-
    tlons provrded In~Sectlon 2 of this Act, re-
    gardless ol whetiherhe is now serving on a
    Court of this State. Any person who has served
    on one (1) or more Courts of this State as de-
    fined herein for twenty-five (25) years'or
    more at any time, continuouslyor otherwise,
    provided that his last service prior to the
    date of retirement shall have been continuous
    far a period of not~less than ten (10) years,
    shall likewise be entitled to retirement pay
    under the provisions of this Aat.*
          It is noted that Judges who retired prior to
the effectivedate of the Act may be entitled to retlre-
Bent benefits under the provisions of Section 4. Upon
-_   .




         Hon. C. Ii.Catiess, page 5   (v-1061)


         complying with the requirementsof the Act they would be
         "retired under the.provlslonso? this Act" even though
         theyretired 'asSudges prior to its effective date.
                   A Judge may be entitled:to.retlrement benefits
         yet not desire to avail himself of those benefita. Until
         he does, he would not be "retired under:the provisions
         of this Act." Ye therefore,construe the term "Judges re-
         tired under the provisions or this,Act" to ,meanall Judges
         who are entitled to, apply for, and actually.recelve,re-
         tlrement pay under the provisions of Article 6228b.
                  "4.~ Is 'thesalary of a retired Judge
             while on active duty by assignment,to be paid
             out of.the funds.set,aslde~by the Retirement
             Act, or from,the approprlatlonmade by the Leg-
             islature for carrying on the.Judlclary,.separ-
             ate from the appro@rlatlonsmade Sor retired
             judgea?"
                  Section 7 of Article 62281,provides in part
         that: '.           .,
V                 I.*. While assigned to said court a&h
             judges shall,b,epaid an amount equal to the
             ,salaryof judges~of said court, in lleu.of re-
             tlrement'at1owance.Y ~
                    Section 5 of sat.<Artlcle~.provldes:.
                C ~"From‘tidaft& *he effective date.of.~:
             thl& Act ever3 Judge.of.',thlti
                                          State shall.'coti-
             tribute five per cent,(5$) of h,lsannual.~sal-
             ary paid by the State to assist in carrying
             out the provisions of this Act. One-twelfth
             (l/12) of such amountshall be deducted by the
             State Comptrollereach month,from the salary
             of such,Judge andthe balance only paid him
             by the ComptrolSer:.The amount deducted
             shall remain 1n'the"StateQeneral Fund,and,
             be subject to app$?opr$atloti
                                         by the Stkte.Qg-
             lalature as other moneys'in said Fund. The
             Legislature shall .approprlat&such aums.of
             money as may be necessary tomcarry.out this
             At"
             c-
                   In accordancewith the Last sentence of the
         above provisions, the.51st Legislature,in the Qeaeral
         Auurovrlatlonto the Judiciary of the State. made the
         fbiloiflnga roprlatlon (Acts-slatLeg., R.S., 1949, Ch.
         585, p. 1160
                    "p:
Hon. C. B. Cavness, page 6           (v-1061)


                                              "For,the Years Ending
                                             Au@&   31,     Au@=;   31,

     "16. Apportionment to
          JudiciaryRetirement
          System as per H.B.
          33, Acts, 51st Legis-
          lature, Regular Ses-
          sion, 1949 . . . . . . . . . . .     75,ooo.oo   75,ooo.oo”

          Tn.()p+lonHo. V                    dated September 6, 1949,
this office nela:
         "The appropriationto 'the system' is.
    broad in scope. We interpret the approprla-
    tlon as having been made to carry out the
    provisions of the Constitutionand that por-
    tion of H.B. 33 which authorizesan appro-
    priation 'to carry out this Act.'"
          The provisions of Section 7 of the Judicial
Retirement Act, relative to the assignment of retired
Judges to.slt in District Courts of thla,State and their
compensationwhile so sitting, is as Quch a part of this
Act as those provisionsrelative to payments of retlre-
ment allowances to retl.redJudges while inactive. The
money apportionedby the 51st Legislatureto the *dudi-
clary Retirement System as per HiB. 33, Acts,,51st Legls-
lature," must have been apportionedfor the pay of re-
tired Judges colaingunder the proylslons of the Jkdlclal
Retirement Act, whether they a?e in complete retirement
or are reassigned to active duty by the Chief Jnstlce of
the Supreme Court.
          If inactive, the dodge receives an all;;an;e
computed under the formula @et out in the Act.
signed to active duty, his allowance is to be an amount
equal to the salary of the JWge of the Cowt to which
he is assigned. You are therefore advlaed that the com-
pensation of retired Judges while on active duty ks to be
paid out of the funds apportionedby the LeglSlat!Xre to
the Judiciary Retirement System.
                             SUMRARY
           Retired Jkdges receiving retirement pay
    under   the provisionsof Article 6228b. V.C.S.,
     assigned to sit as Judges in Dlstrlct CQuFts
.    .   -



             Hon. c. H. Cavness, page 7   (v-1061)


                   of this State have all the powers'of the regu-
                   lar JMges of said District Courts while so
                   sitting.
                        The Chief Justice of the Supreme Court
                   has the sole authority under Article 6228b
                   to assign retired Judges to sit as Judges in
                   District Courts of this State.
                        The term "Judges retired under the pro-
                   visions of this Act%aa used in Section 7 of
                   Article 6228b means all Judges who are en-.
                   titled to, apply for, and actually receive,
                   retirement pay under the provisions of said
                   Article.
                        The compeasatlonof retired Judges while
                   on aktlve duty is to be paid out OS the funds
                   apportioned by the Legislature to the Judi-
                   ciary Retirement System.


r/
             APPROVED:                     Yours very truly,
             Charles E. Crenshaw             PRICE DANIRL
             Ml and Gas Dlvlslon           Attorney General
             Joe Greenhill
             First Assistant
             Price Daniel
             Attorney General
                                           -i#iiidd& (Assistant
             .,

             DMG:db




                                      .
