AUSTIN,TEXAR 78711 CRAWFORD c. MARTlN 

September 27, 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 of Article 1811e, Vernon's 

Austin, Texas 78711 Civil Statutes. 

Dear Judge Onion: 

Your request for an opinion reads in part as follows: 

"In my administrative capacity as Presiding 

Judge of the Court of Criminal Appeals, I would 

like to submit to you the following question and 

request your opinion so that the State Comptroller's 

office will have some guidance in the matter involved. 

"1. May an active appellate or district 

judge be designated and appointed under the provisions of Article 1811e, V.A.C.S., (As amended 

Acts 1971, 62nd Leg. R.S., p. 1646, Ch. 462; 

Acts 1971, 62nd Leg., 1st C.S., p. 14, Ch. 2) 

to sit as a Commissioner of the Court of Criminal 

Appeals for a designated period of time 'or for a 

particular case or cases and be 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 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 

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. . 

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

of the Court of Criminal Appeals, with the designated 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." 

It is well settled that the Legislature is authorized 

to place added duties on members of the Judiciary without creating 

an office in violation of Sections 12, 33 and 40 of Article 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). It was held in Jones v. 

Alexander, supra: 

II . . . Under a provision 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: 'But does it follow that the 

SSllE, or at least some of the same duties may not 

be attached to two offices, to be exercised by 

the incumbents concurrently? or that the duties 

of an office may not be to act as substitute for 

another? We think not. * * * It does not constitute them incumbents of more offices than one: 

or subject then to the charge of holding or exercising two or more offices at the same time.' See 

also, Kirk v. Murphy, 16 Tex. 654, 67 Am.Dec. 640; 

Gaal v. Townsend, 77 Tex. 464, 14 S.W. 365. 

"Unless the duties placed upon the district 

judges by virtue 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 act partake of the same general characteristics of other duties imposed by law. The duties 

assigned are made coterminous, in that the district 

judge ceases to sit as a member of the juvenile 

board when his term of office expires." 

In Werlein v. Calvert, 460 S.W.2d 398, 401 (Tex.Sup. 

19701, it was held: 

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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 'become vacant 

upon termination of his powers either by death 

or operation of law. See Pickens v. Johnson, 

42 Cal.2d 399, 267 P.2d 801." (Emphasis added.) 

In construing the provisions of Article 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: 

"In no 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. He performs no judicial function 

in so far as a decision of,the case is concerned. 

II . . . 

"The conclusion is reached that Commissioner 

Dice, in the preparation 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 that nay be imposed upon him pursuant to the provisions 

of Article 1811e, V.C.S. 

In construing the provisions of Article 200a, Vernon's 

Civil Statutes, it was held in Attorney General's Opinion M-305, 

supra: 

"If the foregoing amendment tom Section 2 of 

Article 200a has the effect of now creating an 

'office' as distinguished from constituting 'supera-duties that the legislature was authorized 

to require district judges to perform', Section 

40 of Article XVI of the Constitution of Texas would 

prohibit a district judge from holding the additional office. We do not believe the legislature 

had any such intention. Likewise, Section 30 of 

Article XVI would limit the term of office to two 

years only, contrary to the four year term provided 

by the legislature. It is our opinion, however, 

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Hon. John F. Onion,, page 4 (M-1225) 

that since the legislature did not change by the 

anendatory language the duties of the presiding 

judge of the administratmstrict, the construction placed on Section 2 by the Court in 

Eucaline Medicine Co. vs. Standard Inv. Co., supra, 

remains equally applicable to Section 2, as amended. 

Therefore, no 'office' within the meaning of 

Sections 30 and 40 of Article 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 to provisions of Section 7 of Article V, Constitution of 

Texas, and provided for the 'reassignment to active 

duty where and when needed' of voluntarily retired 

district judges pursuant to provisions of Section 

la of Article V, Constitution of Texas." 

In view of the foregoing it is our opinion that the provisions 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, but merely place additional duties on members of the Judiciary when they are assigned under the provisions 

of Article 1811e, Vernon's Civil Statutes. Therefore, an active 

appellate or district judge may be designated and appointed to sit 

as a commissioner of the Court of Criminal Appeals without violating Sections 12, 33 or 40 of Article 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", but merely provides 

additional duties on members 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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