THE AITORNEY GENERAL
OF TEXAS
Ausmx. TRXAS 78711
November 21, 1973
The Hoaorablt Dolph Briacot Opinion No. H- 155
Gwtrnor of Texas
stott cqBito1 Building Re: Whether retired state
Airtin, Tens 78711 judges may be appointed
to an appellate board to
review decisions of an
Dear Governor Brircoe: administrative ntture
You have requested our opinion concerning the propriety of your
appointing retired judges to an appellate board of review for the Office
of Comprehensive Health Planning. Such a review board is called for by
newly enacted amendments to the Social Security Act (42 USC 5 491, et seq. ).
The 92nd Congrtns of the United States amended Title XI of the Social
Security Act by adding § 1122 [Public Law 92.603, 86 Stat. 1329 (1972)]. The
legislation calls for a state planning agency (your Office of Comprehensive
Health Planning) to review proposed capital expenditures and determine
whether they are “necessary” and would be in conformity with’the standards,
criteria, or plans developtd by such agency ” for adequate health care facili-
ties in the State. It requires, in subsection 1122(b)(3), that the state establish
and maintain an appellate administrative procedure whereby a person propo-
sing such a capital expenditure may appeal the recommendation of the desig-
nated agency “and will be granted an opportunity for a fair hearing. ”
You indicate that some of the judges you contemplate appointing pres-
ently are lssibting the Court of Criminal Appeals as Commissioners. Others
rtrve se special judge* in certain administrative districts, and one is pres-
ently a prt-time professor of law 8t a State university,
Pursuant to Article 5. 4 k, of the Constitution, as amended in 1965, the
LegisJature in 1971 amended Article 6228b. V. T. C. S., the statute which
govtrnt rht retirement of justices, judges and commissioners of appeUate and
district courta. Section 7 of the Article, as amended, now provides in part:
p. 719
The Honorable Dolph Briscoe, page 2 (H-155)
“During the time judges who have retired under
the provisions of the Act are receiving retirement pay
they shall not be allowed to appear and plead as attorneys
at law in any court in this State. Any person who has
retired under the provisions of this Judicial Retirement
Act may elect in writing address to the Chief Justice of
the Supreme Court. . . to continue as a judicial officer,
in which instance they shall. with their own consent to
each assignment, be subject to assignment. . . . No
person who has heretofore retired under the provisions
of this Judicial Retirement Act shall be considered to
have been a judicial officer of this State after such retire-
ment, unless such person has accepted an assignment by
the Chief Justice to ait in a court of this State.” (emphasis
added)
A new s 7a provides:
“(a) Any person who has retired under the provisions
of this Judicial Retirement Act and who within ninety (90)
days after such retirement accepts an asrignmant by the
Chief Justice of the Supreme Court or by a Presiding Judge
of an Administrative Judicial District shall continue as a
judicial officer. in which instance he shall, with his own
consent to each assignment, be subject to assignment. . . . . ”
We construe thtot sections of Article 6228b as affording the retired judge
an option aa to whether he will remain a judicial officer. See Werlein v. Cal-
vert. 460 S. W. 2d 398 (Tex. 1970); Buchanan v. State, 471 S. W. 2d 401 (Tex.
Crim. 1971). cert. denied, 405 U.S. 930; Ex parte Hwell, 488 S. W. td 123
(Tex. Crim. 1972).
Article 2, 5 1, of the Constitution provides for the separation of govern-
mental powers. After dividing the government into the three basic departments,
legislative, executive and judicial, it provides:
.
p. 720
The Honorable Dolph Briscoe, page 3 (H-155)
0,
and no person, or collection of persons
.
btiig of one of these departments, shall exercise
any power properly attached to either of the others,
except in the instances herein expressly permitted. ”
Administrative determinations of whether a capital expenditure would
be “necessary” or in conformity with certain criteria established by an
executive agency art executive decisions. Administrative appellate positions
would be positions in the executive branch of government. Persons “of” the
judiciary, including retired judges who remain judicial officers, cannot con-
rtihationaily excrcire such executive functions. See Davis v. City of Lubbock,
326 S. W. 2d 699 (Ttx. 1959); Chemical Bank and Trurt~ Comprnv v. Falkner,
369 S. W. 2d 427 (Tcx. 1963); Attmney General Opinion H-7(1973).
We advise you, therefore, that, in our opinion, any of the retired judges
you have in mind who wish to remain judicial officers under 5 5 7 and 7A of
Article 622gb would be disqualified from accepting appointment to your appellate
administrative board. Article 2, $1, Constitution of Texas. This would apply
to retired judges serving as Commissioners on the Court of Criminal Appeals
and to special judges now serving administrative districts.
If any of the persons you have in mind have not elected to remain judicial
officers, then, in the absence of any other impediment, we believe they would
be eligible for appointment to the appellate board you envision.
of any of the retired judges you have in mind should, while remaining
judicial officers, accept such appointments and qualify for the administrative
positiona, they would ipso facto relinquish their judicial status, we believe.
In other words, they could accept. such appointments, but if they did, they
would no longer be judicial officers. The reason for this is illustrated by the
cast of the retired judge who is a professor at a state univerdty.
Professors 8t state universities are “of” the executive branch [see
Attorney General Opinion H-6(1973)]. Article 2. 4 I, of the Constitution pro-
hibits a person, being of one department (executive), from exercising any
powergroperly attached to a different department (judicial). [See Attorney
General Opinion H-7(1973); Attorney General Letter Advisory NO. 65 (1973)].
p. 721
I
.
The Honorable Dolph Briscoe. page 4 (H-155)
When a person holding one governmental position assumes another which
the Constitution does not permit him to hold in conjunction with the first,
the first position is ipso facto surrendered upon assumption of the stcbnd.
Compare Pruitt v. Glen Rose Ind. School Dirt. No. I, 84 S. W. 2d 1004
(Tex. 1935); Thornam v. Abernathy County Line Ind. School Dist., 290 S. W.
152 (Tex.Comm.App. 1927); City of Houston v. Stewart, ‘87 S. W. 663 (Tex.
1905); see Attorney General Letters,Advisory No. 62 (1973) and No. 63 (1973).
Thus, a retired judge who has since become “of” the executive branch
of State government as a professor has relinquished his status as a judicial
officer, whether or not he originally chose upon retirement to retain that
designation. To the extent that Attorney General Opinions M-842 (1971) and
M-ll94 (1972) would indicate otherwise, they are disapproved. Since the
professor is no longer a judicirl officer, if he also accepts the post you con-
template, he would then occupy only two executive positions, a permissible
combination under Article 2,, § 1, of the Constitution. Since both such posi-
tions would be “non-elective, ” the exception for non-elective State officers
in Article 16, 5 40, of the Constitution could apply and a prohibited dual
office holding would not necessarily result.
We are of the opinion, therefore, that the persons you contemplate
appointing may legally accept such appointments, but by doing so, they will
relinquish their status as judicial officers if they have not already done so.
SUMMARY
Retired judges may legally be appointed to serve
as administrative appellate officers, but those who accept
and qualify for such appointments may no longer retain
status as judicial officers.
F&.&
Attorney General of Texas
DAVID hi. KENDALL, Chairman
Opinion Committee.
p. 722