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### 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 bepaid actual travel expense while serving in the City ofAustin 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 theprovisions of thisArticle tobe put into effect inan orderly manner. "The Questions are: "1. Can aJudge, including a retired Judge, legally bepaid his actual travel expense while in the city ofAustin 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 anyperiod isnot inAustin on that day under

"3. Can aJudge, including a retired Judge, legally bepaid the $25.00 per daywhen said Judge resides inAustin under an appointment? "4. Can aJudge, including a retired Judge, legally receive actual expenses when he resides away from Austin for returning to his residence nightly or onweekends while under an appointment as a commissioner either on a case or cases basis or for aperiod of time? "5. Can an active District Judge bepaid the -6099-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 ormust the District Judge bepaid the amount allowed as a commissioner 'in lieu of' his salary as District Judge?" Subdivision (d)of Section 1ofArticle 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 bepaid out of moneys appropriated from the General Revenue Fund for suchpurpose inan 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 $25per day while he is asiigned ;oand er diem of thePCourt of Criminal Appeals inAustin." (Emphasis added.) Itwas held inAttorney 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 onmembers 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 fromAustin. Such appointee is also entitled to receive aper diem of $25.00per 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 tohis actual travel expenses "to and fromAustin, Texas." Therefore he does not receive any "travel expense" while in the City ofAustin under an appointment.
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Hon. Robert S. Calvert, page 3 (M-1246)

2. A judge, including a retired judge, is entitled to receive aper diem of $25.00 per day "while he isassigned". Therefore such judgemay legally bepaid the $25.00per day for any day he isunder an appointment, whether he is inAustin ornot.

3. The $25.00 per diemprovided for inArticle 1811e, Vernon's Civil Statutes, applies to all appointees whether the appointee resides inAustin or elsewhere. Therefore a judge, including a retired judge, may legally bepaid the $25.00 per day when said judge resides inAustin under an appointment.

4. An appointee is entitled to his actual travel expenses "to and fromAustin." Therefore a judge, including a retired judge, may legally~receive his actual travel expenses when he resides away fromAustin for returning to his residence nightly or onweekends while under an appointment as a commissioner either on a case or cases basis or for aperiod of time.

5. Subdivision (d)of Section 1ofArticle 1811e, Vernon's Civil Statutes, specificallyprovides 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.

Thisprovision is substantially identical with theprovisions of Section 7ofArticle 6~228b,Vernon's Civil Statutes, relating to assignment of retired judges, Section 7provides: "While assigned to said court such judges shall bepaid an amount equal to the salary of judges of said court in lieu of retirement allowance." The Employees Retirement System of Texas has construed theprovisions above quoted ofArticle 6228b to authorize the Retirement System to continue topay retired judges the retirement allowance of said judges during the time of assignment and said retired judges receive thedifference between the amount of such retirement allowance and the amount of salary authorized under Section 7ofArticle 6228b, Vernon's Civil Statutes. Under such construction the Employees Retirement System inbudgeting their request for an appropriation tomeet the obligation of retirement allowances isbased 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 theprovisions of Subdivision (d)of Section 1 ofArticle 1811e, Vernon's Civil Statutes. This construction is consistent

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

with thepattern for thepayment of retired judges assigned to active duty prescribed by the Legislature inArticle ZOOa,Vernon's Civil Statutes.

You are therefore advised that an active judgemay be paid the difference between his salary asdistrict 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 ofArticle 1811e, Vernon's Civil Statutes, ispaid 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 expnses fi toand fromAustin and aper diem of $25. 0per day while he isassigned and serves. 

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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 FirstAssistant
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