         ,THE       ATTBRNEY           GENERAL
                       UBIF~EXAS




Honorable Robert S. Calvert      Opinion No.     M-1269
Comptroller of Public Accounts
State Finance Building           Re:   May an elected official
Austin, Texas 78711                    who is eligible for re-
                                       tirement under the Em-
                                       ployees Retirement System
                                       of Texas cease performing
                                       the functions of his office
                                       prior to qualification of
                                       his successor in office,
                                       in view of Art. XVI, Sec.
Dear Mr. Calvert:                      17, Texas Constitution?

          In your recent opinion request you presented the follow-
ing information and questions:

          "In view of your holdings in your Opinion M-627
     with regard to District Judges, I am asking the
     following questions:

          "1. If a District Attorney or any other elected
     official, each of whom are eligible for service re-
     tirement [under the Texas Employees Retirement System]
     and each of whom makes application to retire on a
     date of his choosing, which date meets the retire-
     ment laws, does this fix the date the office is
     vacated and the date he is eligible to execute re-
     tirement options and the date he is to be removed
     from the payroll to be placed on the following day
     on the retirement payroll, even if no successor has
     qualified?

          "2 . In your Opinion M-760, you have held that
     officers may abandon their offices under certain con-
     ditions.   If a District Attorney or any other elected
     official, including members of the Legislature, sub-
     mits a letter to the Governor reading similar to the
     following:

         "'I, John Doe, duly elected or appointed Dis-
     trict Attorney of the       Judicial District, being

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Hon. Robert S. Calvert, page 2         (M-1269)



        hereby eligible for retirement, do hereby state that
        I am retiring on   (some future date)  and as of that
        date, I am abandoning and relinquishing said office
        and will no longer perform the duties of said of-
        fice after that date.'

             "Would this constitute abandonment of the of-
        fice and enable said officer to be placed upon the
        retirement payroll on the following date, provided
        said date meets the retirement laws?"   (Brackets ours.)

          Our answer to your first question is yes. Article XVI,
Section 17 of the Texas Constitution, provides that "all officers
within this State shall continue to perform the duties of their
offices until their successors shall be duly qualified." A dis-
trict attorney is an officer of the State. State v. Johnson,
12 Tex. 231 (1854); Lackey v. State, 190 S.W.2d 364 (Tex.Crim.
1945). Article XVI, Section 62, subsection (a) of the Texas
Constitution, which was adopted.subsequently to Section 17 of
the same Article, creates the Employees Retirement System of
Texas. Pursuant to this constitutional provision the Legislature
enacted Article 6228a, Vernon's Civil Statutes, which establishes
an administrative board, the qualifications for membership in the
State's retirement system, and the method for applying for service
retirement benefits.

             We have previously held in Attorney General's Opinion
M-627    (1970) that:

             "In view of the express provisions of Section
        l-a of Article V of the Constitution of Texas and
        Subdivision (a) of Section 2 of Article 6228b, it
        is our opinion that a judge who is eligible for
        retirement has the constitutional right to retire.
        Therefore, the provisions of Section 17 of Article
        XVI of the Constitution of Texas should not be
        construed so as to prevent a judge from retiring
        who is eligible for retirement if he desires to
        avail himself of the provisions of Section l-a
        of Article V of the Constitution of Texas and the
        provisions of Article 622833, Vernon's Civil
        Statutes (Judicial Retirement Act).
             ..
                  .   .   .



             II
                  .  A judge eligible for service retire-
                      .   .

        ment who makes application to retire on a date of

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Hon. Robert S. Calvert, page 3      (M-1269)



     his choosing thereby fixes the date the office
     is vacated, the date he is eligible to exercise
     retirement options and the date he is to be
     removed from the judicial payroll to be placed
     on the following day on the retirement payroll."

          Our opinion is that Article XVI, Section 17, Texas
Constitution, must be construed so as not to deny one who has a
right under Article XVI, Section 62, Subsection (a), Texas Consti-
tution, and the statutes enacted pursuant thereto, and who has
met the requirements contained therein, the opportunity to valid-
ly exercise that right. To do so in this instance would be to
allow one other than the retiree to determine the date of the
retiree's retirement, a determination that only the retiree may
make under Article 6228a, Vernon's Civil Statutes.

           You are accordingly advised that under the facts sub-
mitted, the district attorney has the constitutional right to
make application to retire on a date of his choosing, thereby
fixing the date the office is vacated. Article XVI, Section 17,
Constitution of Texas, requiring all officers to perform their
duties of office until their successor shall be duly qualified, is
therefore not applicable in this situation of retirement under
Article XVI, Section 17, Constitution of Texas, and must yield
thereto. Consequently, no one may collect compensation for the
period of time the office became vacant and until the successor
qualifies.   In view of our answer to your first question it is
unnecessary to answer your second question.

                        SUMMARY

          A district attorney eligible for service
     retirement who makes application to retire on
     a date of his choosing thereby fixes the date
     the office is vacated, and the date he is eli-
     gible to execute retirement options and the
     date he is to be removed from the payroll to
     be placed on the following day on the retire-
     ment payroll, even though his successor has
     not qualified.




                                         C. MARTIN
                                     ney General of Texas


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Hon. Robert S. Calvert, page 4        (M-1269)



Prepared by Linda Neeley
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Bill Campbell
Roland Allen
Ben Harrison
Marietta Payne

SAMUEL D. MCDANIEL
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOLA WHITE
First Assistant




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