, 

THE AYBTORNEY GENERAL 

OF-XAS 

Honorable Robert S. Calvert Opinion No. ~-1246 

Comptroller of Public Accounts 

State Finance Building Re: 

Austin, Texas 78774 

Whether judges, including 

retired judges, may be paid 

actual travel expense while 

serving in the City of Austin 

under appointment, and reDear Mr. Calvert: lated questions. 

Your request for an opinion reads as follows: 

"This department has been requested by the 

Honorable John Onion, Jr., presiding Judge of the 

Court of Criminal Appeals to ask the following 

questions regarding Article 1811e, R.C.S. in 

order for the provisions of this Article to be 

put into effect in an orderly manner. 

"The Questions are: 

"1. Can a Judge, including a retired Judge, 

legally be paid his actual travel expense while 

in the city of Austin under an appointment? 

"2 Can a 

legally-be paid 

of time that he 

an appointment? 

Judge, including a retired Judge, 

the $25.00 per day for any period 

is not in Austin on that day under 

"3. Can a Judge, including a retired Judge, 

legally be paid the $25.00 per day when said 

Judge resides in Austin under an appointment? 

"4. Can a Judge, including a retired Judge, 

legally receive actual expenses when he resides away 

from Austin for returning to his residence nightly 

or on weekends while under an appointment as a 

commissioner either on a case or cases basis or 

for a period of time? 

"5. Can an active District Judge be paid the 

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Hon. Robert S. Calvert, page 2 (M-1246) 

difference between his salary as District Judge and 

the amount allowed as a commissioner for each days 

service as a commissioner or must the District 

Judge be paid the amount allowed as a commissioner 

'in lieu of' his salary as District Judge?" 

Subdivision (d) of Section 1 of Article lElle, Vernon's 

Civil Statutes, as amended by Senate Bill 529, Acts 62nd Leg., 

R.S. 1971, Ch. 462, p. 1646, provides: 

"(d) The compensation of a judge while sitting 

as a commissioner of the court shall be paid out of 

moneys appropriated from the General Revenue Fund 

for such purpose in an amount equal to the salary 

of the judges of the Court of Criminal Appeals, 

in lieu of retirement allowance or in lieu of the 

compensation he receives as an active judge of 

another court. A judge sitting as a commissioner 

of the court also shall receive his actual travel 

expense to and from Austin Texas 

$25 per day while he is asiigned ;o 

and er diem of 

thePCourt of 

Criminal Appeals in Austin." (Emphasis added.) 

It was held in Attorney General's Opinion M-1225 (1972): 

"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 may be compensated." 

An appointee as commissioner is entitled to receive his 

actual travel expenses to and from Austin. Such appointee is also 

entitled to receive a per diem of $25.00 per day "while he is 

assigned." 

Your questions are accordingly answered as follows: 

1. A judge, including a retired judge, appointed as 

commissioner, is legally entitled to his actual travel expenses 

"to and from Austin, Texas." Therefore he does not receive any 

"travel expense" while in the City of Austin under an appointment. 

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I 

Hon. Robert S. Calvert, page 3 (M-1246) 

2. A judge, including a retired judge, is entitled to 

receive a per diem of $25.00 per day "while he is assigned". Therefore such judge may legally be paid the $25.00 per day for any day 

he is under an appointment, whether he is in Austin or not. 

3. The $25.00 per diem provided for in Article 1811e, 

Vernon's Civil Statutes, applies to all appointees whether the 

appointee resides in Austin or elsewhere. Therefore a judge, 

including a retired judge, may legally be paid the $25.00 per 

day when said judge resides in Austin under an appointment. 

4. An appointee is entitled to his actual travel expenses "to and from Austin." Therefore a judge, including a retired judge, may legally~receive his actual travel expenses when 

he resides away from Austin for returning to his residence nightly 

or on weekends while under an appointment as a commissioner either 

on a case or cases basis or for a period of time. 

5. Subdivision (d) of Section 1 of Article 1811e, Vernon's 

Civil Statutes, specifically provides that the compensation of said 

appointee shall be an amount equal to the salary of the judges of 

the Court of Criminal Appeals in lieu of the compensation he receives as an active judge of another court. 

This provision is substantially identical with the provisions of Section 7 of Article 6~228b, Vernon's Civil Statutes, relating to assignment of retired judges, Section 7 provides: "While 

assigned to said court such judges shall be paid an amount equal 

to the salary of judges of said court in lieu of retirement allowance." 

The Employees Retirement System of Texas has construed 

the provisions above quoted of Article 6228b to authorize the Retirement System to continue to pay retired judges the retirement 

allowance of said judges during the time of assignment and said 

retired judges receive the difference between the amount of such 

retirement allowance and the amount of salary authorized under 

Section 7 of Article 6228b, Vernon's Civil Statutes. Under such 

construction the Employees Retirement System in budgeting their 

request for an appropriation to meet the obligation of retirement 

allowances is based on the assumption that all retired judges will 

remain on the retirement payroll and the Legislature has acquiesced 

in this construction. It is therefore our opinion that such construction should be followed and a similar construction should be 

placed on the provisions of Subdivision (d) of Section 1 of Article 

1811e, Vernon's Civil Statutes. This construction is consistent 

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. 

Hon. Robert S. Calvert, page 4 (M-1246) 

with the pattern for the payment of retired judges assigned to 

active duty prescribed by the Legislature in Article ZOOa, Vernon's 

Civil Statutes. 

You are therefore advised that an active judge may be 

paid the difference between his salary as district judge and the 

amount allowed as a commissioner for each day's service as a 

commissioner. 

SUMMARY 

The compensation of an appointee under the 

provisions of Article 1811e, Vernon's Civil 

Statutes, is paid from the General Revenue Fund 

in an amount equal to the salary of the judges 

of the Court of Criminal Appeals. Said appointee 

is also entitled to his travel exp nses 

fi 

to and 

from Austin and a per diem of $25. 0 per day while 

he is assigned and serves. /7 

Prepared by John Reeves 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

Jack Sparks 

Fisher Tyler 

James Hackney 

Scott Garrison 

SAMUEL D. MCDANIEL 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLA WHITE 

First Assistant 

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