Untitled Texas Attorney General Opinion

Honorable Gordon Ii.Lloyd Executive Secretary Employees Retlkement System of Texas Austin 11, Texas Oplnlon~No. S-221, Fte~Whethkr a retired judge may. servs.as.Cbunty Judge and re- ~ oelve pay tierefer, and.at the &age time receive benefits under'%he JudtocialRetirement. Dear Mr. Lloyd: .Act.:.~ ,:~ You have request&d an opfnion,whether a person eligible for retirement under the Judicial~IWtWemenb System "can occupy the position of County Jndge~and, ,& the same time, receive a retirement annuity under the prov$sLons of the Judicial Retirement ActD. .'.: Section 7 cifA.r*iole6228b, Verno&s: Ci-vi-l Statutes, (Judicial RetirementsAcb) provMekr "Judges retired &der the provisions of this Act shall be judicial offi&ra of the State, and during the time they are receiving retirement pay shall n& {be allowed to appear rindPlead ai attorney& a6 law 1n:any Co&% of with tiheir record in thi& State, a6d shall~,. own consent, be:,lrubjtit ljd-assignmentby the Chief Justice of Dhe-StipFeme~ Court to.sit In 'any Court of this Stiateb;fthe same dignity, or lesser, as that franiwhich they retired, and If in a District Court, und&r the same rules as provided by the'present Adminlstra- tlve Judloial Act, and wh$le so assigned, shall have all the powers of Judge8 thereof. While assigned to said Court such Judges shall be paid an amount equal to the salary of Judgesnof said Court, In lieu of retirement allowance,. (Emphasis added.) Hon. Gordon Ii.Lloyd, page 2 _ (Opinion S-221) Under the provisions of the above Act, when a District Judge retires from office he continues to draw a monthly salary as a judicial officer of the State of Texas. Therefore, It Is our opinion that a Judge receiving retirement benefits under the provisions of Article 6228b holds-a clvll,offlce of emolument. The office of County Judge is a civil office of emolu- ment, Article V, Sec. ~15; Tex. Con&.; Williams v. Huntress Tex . 272 S.W.2d 87, 89 (1954). Peden v. Valentine, 196 m. 1006 (TexIClv.App. 1917, error ref. I . We agree with the District Judge who contemplates re- tiring under the provisions of Article 6228b that there is no provision In the retirement statutes that would prohibit him from drawing retirement pay while he Is serving as County Judge; however, Section 40 of Article XVI.of the Constitution of Texas provides that no person shall hold or exercise at the same time more than one Oivil~offlce~of e.molument. (Exceptions not appli- cable). Therefore, you are advlsed.that under the provisions of Section 40 of Article XVI of the Constitution of Texas a per- son cannot hold or exercise the offloe of County Judge and at the same time hold or exercise the office of Retired Judge and receive a retirement annuity under the provisions of.Article 6228b. In connection with the foregoing, it should be pointed out that it is not mandatory that a District Judge make appllca- tion for or receive the retirement benefits under the provisions of the Judicial Retirement Act as soon as he vacates his office as District Judge. On the Contrary, in the instant case, the District Judge can occupy the office of County Judge after the expiration of his present term as Dls~trlctJudge so long as he does not make application for orereceive the.retlrement ~beneflts under the provisions of the JudicIalRetIrement Act. Further, after he vacates the office of County.Judge he may then make appli- cation for and receive theeoompensatlon allowed a Retired District Judge under the provisions of the Judicial Retirement Act. ..,-- , Hon. Gordon H. Lloyd, page 3. (Opinion S-221) Section 40 of Article XVI of the Constitu- tion of Texas prohibits a person eligible for retirement under the Judicial Retire- ment System from occupying the office of County Judge and, at the same time, receiv- ing a retirement annulty,under the provisions of Article 6228b, V.C.S. -- Yours very truly, APPROVED: JOHN BEN SHEPPERD Attorney General of Texas J. C. Davis, Jr. County Affairs Division Wary K. Wall Reviewer W. V. Geppert Reviewer C. W. Gray Special Reviewer Davis Grant First Assistant John Ben Shepperd Attorney General .JR:zt