                THE         ATIXBRNEY                     GENERAL.
                                   OFTEXAS



                                   October    25,   1972


Honorable    Everett     L. Anschutz                opinion       NO.    M-1247
Executive    Secretary
Employees    Retirement      System                 Re:     Construction        of Article
    of Texas                                                1811e,    V.C.S.,     relating
P. 0. Box 12337,       Cap it01   Station                   to appointment        of a re-
Austin,   Texas      78711                                  tired   judge     to serve     as
                                                            a commissioner        of the
Dear   Mr.   Anschutz:                                      Court of Criminal         Appeals.

              Your    request     for   an opinion         asks    the    following   questions:

               "1      Does a retired      judge    who has previously
       filed     with the Chief      Justice     of the Supreme Court
       his election        to continue     as a judicial     officer
       subject       to assignment     meet the requirement         of
       having      'consented     to be subject      to appointment'
       under Article         1811e?    If not,     how does   such
       judge     so qualify?

               "2 .    Taking     into    account     the parallel        pro-
       visions      of both Article           6228b and 1811e providing
       for payment         of an amount 'in, lieu            of retirement
       allowance',         would a procedure          for making retire-
       ment and supplemental              salary    payments      similar      to
       the procedure         outlined       in Article       200a be suitable
       for making payments             to retired       judges    designated
       and appointed         as commissioners           to the Court of
       Criminal      Appeals     under Article          1811e?      (We note
       that all       retirement       and supplemental          salary     pay-
       ments are to be made from the General                      Revenue
       Fund and that         appropriations         for such expenditures
       have been made in part               to the Employees         Retire-
       ment System of Texas and in part                    to the Court of
       Criminal      Appeals.        The amount appropriated              to the
       Employees       Retirement        System is based upon the as-
       sumption       that   all   retired      judges     will   remain on
       the retirement          payroll.)

              "3.     Would the designation      and appointment
       of a retired      judge  under Article     1811e have any
       effect     upon his retirement     status   with respect  to

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Hon.   Everett     L.       Anschutz,   page   2     (M-1247)



       his annuity,       time certain    options,   survivorship
       benefits,      group insurance,     or any other     allow-
       able   benefit     or expense   provided    by law?”

               Subdivisions        (a) and (d) of Section          1 of   Article   1811e,
Vernon’s      Civil    Statutes,      as amended by Senate         Bill   529, Acts    62nd
Leg.,    R.S.    1971,    Ch.   462,   p. 1646, provide:

               “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
       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.
              0.   .    .

              “(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 per diem of
       $25 per day while         he is assigned          to the Court of
       Criminal     Appeals     in Austin.”

               Section    7 of Article      6228b,    Vernon’s      Civil    Statutes,      pro-
vides    for assignment       of retired      judges    “to    sit  in any court       of
this    State   of the same dignity,          or lesser        as that    from which
they retired.”          The appointment       under Article        1811e     however,     is
to serve      as commissioner       on the Court of Criminal            Aipeals.       There -
fore,    in answer      to your first     question,       it is our opinion         that    the
filing    with the Chief       Justice    of the Supreme Court of a judge’s
consent     to assignment      pursuant     to Section        7 of Article      6228b is
not sufficient        to constitute      his consent        to appointment       by the
Presiding      Judge of the Court of Criminal               Appeals    as a commissioner.

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Hon.    Everett      L.   Anschutz,      page      3        (M-1247)



You are therefore      advised    that a retired     judge   should file    his
consent    to appointment     with the Presiding       Judge of the Court of
Criminal    Appeals   prior   to appointment     pursuant    to the provisions
of Article    1811e.

                  In Attorney      General’s           Opinion   M-1225   (1972),        it    was
held:

               “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. ”

                  In Attorney     ~General’s           Opinion   M-1246   (1972),it           was
held:

               “5.     Subdivision     (d) of Section        1 of Article
        1811e,     Vernon’s     Civil  Statutes,     specifically     pro-
        vides    that the compensation          of said    appointee    shall
        be an amount equal          to the salary     of the judges       of
        the Co-             Criminal   Appeals    in lieu     of the compensa-
        tion   he receives       as an active     judge    of another     court.

                “This     provision      is substantially           identical
        with the provisions            of Section        7 of Article         6228b,
        Vernon’s       Civil    Statutes,       relating     to assignment          of
        retired      judges.       Section      7 provides:          ‘While    as-
        signed     to said      court    such judges        shall     be paid      an
        amount equal         to the salary         of judges      of said      court
        in lieu      of retirement         allowance.’

                “The Employees        Retirement      System of Texas has
        construed      the provisions         above quoted     of Article
        6228b to authorize           the Retirement       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,     Venron’s     Civil    Statutes”       Under such con-
        struction      the Employees        Retirement     System in

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Hon.   Everett     L.   Anschutz,     page   4        (M-1247)



       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 construction
       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         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.”

             You are accordingly    advised   in answer to your second
question   that the appointee    continues    to receive    his retirement
allowance    from the Retirement    System during     the time of his ap-
pointment    and is to be paid   in addition    thereto   the difference
between   his salary  as commissioner      and his retirement     allowance.

              In answer to your third     question,     it was held    in Attorney
General’s     Opinion   M-1225 (1972)  that Article       1811e merely   provides
additional     duties   on members of the Judiciary,        citing  Werlein    v.
Calvert,     460 S.W.Zd   398, 401 (Tex.Sup.     1970),    wherein  it was held:
              ,I         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
       an office    that     could    possibly     ‘become    vacant’
       upon termination         of his powers        either   by death
       or operation      of law.       See Pickens       v. Johnson,
       42 Cal.td    399,     267 P.2d 801.”

              Therefore     you are advised         that  the designation    and ap-
pointment     of a retired      judge    under Article       1811e will   not have any
effect    upon his retirement         status    with respect      to his annuity,   time
certain    options,     survivorship      benefits,      group insurance,    or any
other   allowable     benefit     or expense     provided     by law.




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Hon.   Everett    L.   Anschutz,     page   5     (M-1247)



                                   SUMMARY

              A retired      judge   may be appointed      as com-
       missioner     to the Court of Criminal          Appeals    pro-
       vided   he files      his consent     to appointment.       Said
       appointee     is to receive        the compensation     provided
       in Article      1811e,    Vernon's    Civil  Statutes;     his
       retirement      status    is not affected.




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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