AUSTIN,TEXAR 78711

CRAWFORD c.MARTlN
September27,1972

Honorable John F. Onion, Jr. Opinion No. M-1225 Presiding Judge Court of Criminal Appeals Re: Construction of and validity Box 12308, Capitol Station ofArticle 1811e, Vernon's Austin, Texas 78711 Civil Statutes.
Dear Judge Onion:

Your request for an opinion reads inpart as follows:
"Inmy administrative capacity as Presiding Judge of the Court of Criminal Appeals, Iwould like to submit toyou the following question and request your opinion so that the State Comptroller's office will have some guidance in thematter involved. "1. May an active appellate or district judge be designated and appointed under theprovisions ofArticle 1811e,V.A.C.S., (Asamended Acts 1971, 62nd Leg. R.S., p. 1646, Ch. 462; Acts 1971, 62nd Leg., 1st C.S., p. 14, Ch. 2) to sit as aCommissioner of the Court of Criminal Appeals for adesignated period of time 'orfor a particular case or cases andbe compensated without violating Article 16, Sets. 12, 33 and 40, Texas Constitution or any other constitutional or statutory provision of the law?"
Senate Bill 529,Acts 62nd Leg., R.S. 1971, Ch. 462, p. 1646 (Article 1811e,Vernon's Civil Statutes), provides in part: "Section 1. (a)The presiding judge of the Court of Criminal Appeals may, with the concurrence of amajority of the judges of the Court of Criminal Appeals, designate and appoint a retired appellate judge or district judgewho has consented tobe subject to appointment, or an active appellate judge or district judge, to sit as a commissioner

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Hon. John F. Onion, Jr., page 2 (M-1225)

of theCourt of Criminal Appeals, with the designated judge's consent. Thepresiding judge of the Court of Criminal Appeals may designate and appoint asmany commissioners as he deems necessary to aid and assist the court indisposing of the business before it."
It iswell settled that the Legislature isauthorized toplace added duties onmembers of theJudiciary without creating an office inviolation of Sections 12, 33and 40ofArticle XVI of the Constitution of Texas. Eucaline Medicine Co. v. Standard Inv. Co., 25 s.w.2d 259, 261 (Tex.Civ.App. 1930, error ref.); Jones v.Alexander, 122 Tex. 328, 59 S.W.2d 1080 (1933);Jordan v. Crudgington, 149 Tex. 237, 231 S.W.2d 641 (Tex.Sup. 1950); Attorney General's Opinion M-305 (1968). Itwas held inJones v. Alexander, supra:

II

. . . Under aprovision of the Constitution then existing, substantially identical with that provision we now have under consideration, the Supreme Court in the case of Powell v. Wilson, 16 Tex. 59, said: 'Butdoes it follow that the **SSllE,** or at least some of the same duties may not be attached to two offices, tobe exercised by the incumbents concurrently? or that the duties of an office may not be to act as substitute for another? We think not. * * * Itdoes not constitute them incumbents ofmore offices than one: or subject then to the charge of holding or exercising two ormore offices **at** the same time.' See also, Kirk v. Murphy, 16Tex. 654, 67Am.Dec. 640; Gaal v. Townsend, 77Tex. 464, 14 S.W. 365. "Unless the duties placed upon the district judges byvirtue of this act create more offices than one, or subject them to the rule that they cannot hold two or **more** offices at the **same** tine, or that the additional duties imposed are incompatible with their other duties conferred upon them by law, then the act cannot be condemned. The duties assigned by this actpartake of the same general characteristics of other duties imposed by law. The duties assigned aremade coterminous, in that the district judge ceases to sit as amember of the juvenile board when his term of office expires."
InWerlein v. Calvert, 460 S.W.2d 398, 401 (Tex.Sup. 19701, itwas held: -6005-Hon. John F. Onion, Jr.,,page 3 (M-1225)

II

. . . 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 anoffice that could possibly 'becomevacant upon termination of his powers either by death or operation of law. See Pickens v. Johnson, 42Cal.2d 399, 267 P.2d 801." (Emphasisadded.)
In construing theprovisions ofArticle 1811a and Article 1811c, V.C.S., the Court of Criminal Appeals held in Ex Parte Sparks, 277 S.W.2d 916 (Tex.Crin. 1955) that:

"Inno event does the commissioner have a voice in the approval or rejection of his opinion; he acts only in an advisory capacity, as an aid to the court. Heperforms no judicial function in so far as adecision of,the case is concerned. II

. . . "The conclusion is reached that Commissioner Dice, in thepreparation of the opinion in this case, did not perform a judicial function." Since the Commissioner does not performa judicial function, it is our opinion that no incompatibility exists between the constitutional duties of the appointee and.the duties thatnay be imposed upon him pursuant to theprovisions ofArticle 1811e, V.C.S.

In construing theprovisions ofArticle 200a,Vernon's Civil Statutes, itwas held inAttorney General's Opinion M-305, supra: "If the foregoing amendment tomSection 2of Article 200ahas the effect of now creating an 'office' as distinguished from constituting 'supera-duties that the legislature was authorized to require district judges toperform', Section 40ofArticle XVI of the Constitution of Texas would prohibit adistrict judge from holding the additional office. We do not believe the legislature had any such intention. Likewise, Section 30of Article XVIwould limit the term of office to two years only, contrary to the fouryear term provided by the legislature. It is our opinion, however,
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that since the legislature did not change by the anendatory language the duties of thepresiding judge of the administratmstrict, the construction placed on Section 2by the Court in Eucaline Medicine Co. vs. Standard Inv. Co., supra, remains equally applicable to Section 2,as amended. Therefore, no 'office'within themeaning of Sections 30 and 40ofArticle XVI of the Constitution of Texas was created. Eucaline Medicine Co. vs. Standard Inv. Co., supra; cf.Aldine Independent School District vs. Standlev, 154 Tex. 547, 280 S.W.Zd 578 (1955). We therefore are of,the opinion that the legislature merely placed added duties on regularly elected district judges pursuant toprovisions of Section 7ofArticle V, Constitution of Texas, and provided for the 'reassignment to active duty where andwhen needed' ofvoluntarily retired district judges pursuant toprovisions of Section la ofArticle V, Constitution of Texas."
Inview of the foregoing it isour opinion that theprovisions of Senate'Bill 529,Acts 62nd Leg., R.S. 1971, Ch. 462, p. 1646 (Article 1811e,Vernon's Civil Statutes), do not create an additional office, butmerely place additional duties onmembers of the Judiciary when they are assigned under theprovisions ofArticle 1811e,Vernon's Civil Statutes. Therefore, an active appellate or district judgemay be designated and appointed to sit as a commissioner of the Court of Criminal Appeals without violating Sections 12, 33 or 40ofArticle XVI of the Constitution of Texas.
SUMMARY

Senate Bill 529,Acts 62nd Leg., R.S. 1971, Ch. 462,p. 1646 (Article 1811e, Vernon's Civil Statutes), authorizing the designation and appointment 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", butmerely provides additional duties onmembers of the Judiciary and is therefore valid. The appointee nay be compensated.. ,

Hon. John F. Onion, Jr., page 5 (M-1225)

Prepared by John Reeves Assistant Attorney General
APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman W. E.Allen, Co-Chairman Jack Sparks Fisher Tyler John Banks Scott Garrison
SAMUEL D.MCDANIEL Staff Legal Assistant
ALFRED WALKER Executive Assistant
NOLA WHITE First Assistant

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