Honorable Richard E. McDaniel

County Attorney Shelby County Center, Texas. Opinion No. UW- 26
Re:~Is the Commissioners' Court required to furnish aretired District Judge an office, and, If they are not required to doso, is it normissible for the County to furnish himanoffice or rent himanoffice in the County CourtDear Mr. McDaniel: house?

Your request for an opinion concerns the authority of aCounty Commissioners* Court to furnish office space for aretired District Judge., In this connection, you have presented three questions, which are In substance as follows:

(1) Is the Commissioners' Court required to furnish aretired District Judge anoffice? (2) If they are not required to doso, is it psrmissible for the county to furnish a retired District Judge anoffice in the courthouse? (3) Is it p8ImiSSiblO for the county to rent a retired District Judge anoffice in the courthouse whenthis space is not otherwise being used? Section 2of Article 3899b, Vernon's Civil Statutes, provides: "Suitable offices and stationery andblanks

necessary in the performance of their duties may in the discretion of the Commissioners' Court alsoHon. Richard E. McDaniel, page 2 - ww-26

be furnished to resident District Judges,.

. . andmaybe paid for onorder of the Commissions erstCourt out of the County Treasury.” (EmphaSis ours).
The express provisions of this Section clearly establish the discretionary power of the Commissioners’ Court to provide office space for aresident District Judge; therefore,since the above quoted statute is discretionary in nature, the Commissioners’ Court is not required to furnish anoffice, for anactive or retired District Judge.

Since Section 2of Article 3899b is not mandatory In nature, wemust nowconsider your second question, as towhether the Commissioners’ Court would be permitted to furnish aretired District Judge office space within the courthouse.

Section l-a, Article V, Constitution of Texas,provides:

“TheLegislature shall provide for the retirement and compensation of Judges andCommlsaioners of the Appellate Courts andJudges of the District andCriminal Distrfct Courts onaccount of length of service, age, or disability, andfor thefir reassignment to active duty where andwhenneeded. (Emphasis ours.)
Pursuant to this constitutional mandate, the 51st Legislature enacted House Bill 33 (Acts, 51st Leg., R.S., 1949, ch. 99, p* 181), whfch has been codified asArticle 6228b, V.C.S. Section 7thereof provides:

“Judges retired under the pro ’visions of this Act e
. ~shall, wfth their ownconsent, be subject to assignment by the Chief Justfce of the Supreme Court to sit in anyCourt of this State of the same dignity, or lesser, as that from whfch they retired, and if in aDistrict Court, under the samerules as provided by the present adminfstrative judfcial act, andwhile so assigned, shall have all the powers of judges thereof

. . ** (Emphasis ours).
It seems clear that aDistrict Judge retired under the provisions of Section 7of Article 6228b, though subject to assignment byhis consent, will have the powers of the judges of the court towhich assigned only whi.le so assigned. In the light of this fact, it seems that only while serving in thisHon. Richard E. McDaniel, page 3 -ww-26

capacity could the District Judge possibly uallfy as aresident ~judgeas required bySection 2of Article 3qqb. 8 Therefore, inasmuch as the retired District Judge involved In the Inquiry is not, at this time, assigned to sit in any court of this State, he Is not aresident District Judge within the meaning of Section 2 of Article 3899b. Consequently, in answer to your second question, you are advised that the Commissioners ICourt does not have authority to furnish office space in the courthouse for aretired District Judge.

Inview of the fact that wehave answered both of the foregoing questions in the negative, it nowbecomes necessary that wepass onyour third question as to whether it Is permissible for the Commissioners ’ Court to rent office space in the courthouse to aretired District Judge whenthis space is not otherwise being used.

In the case of Dodson v. Marshall, 11.8S.W. 26, 621, (Tex.Clv.App. 1938, error dism.) the court held that the Commissioners’ Court had the discretionary power to lease space in an unused alcove in the rotunda of acounty courthouse. The opinion upheld this rental where the exercise of the privilege would not Interfere with the proper use of the courthouse or cause the county any expense, andwould afford aconvenience to those transacting business in the courthouse.

InTarrant County v. Rattikin Title Co., 1995. W. 2d, 269, (Tex. Civ. App. 1947) the court held that the county had the duty to provide space for the examination of public records and that where the county went to the expense of providing aspecial room for the use of abstract companies it could not charge rent for this office space. The CourtI,in this opinion, distinguished the Dodson Case on the grounds that the cold drink stand was erected in the courthouse for that specific purpose andwas not located in that part of the courthouse designated for the use of county offIces. Toallow the Commissioners’ Court to lease or rent office space to private enterprise which was originally erected for the use of public office, would be placing the Commissioners tCourt and private enterprise In the relation of landlord and tenant, and in asense would be applying public property for private use, which is against the laws of the State. ’

It has been concluded above that aDistrict Judge retired under the provisions of Section 7of Article 6228b has noactive powers as aDistrict Judge until assigned under the provisions of that Section. It is further concluded, therefore, that, inasmuch as hehas noofficial function, unless reassigned, he is to be considered as any other private citizen and, as such,Hon. Richard E. McDaniel, page **4 -** **ww-26**

Is prohibited by the holding in the Rattfkin Title Case from renting office apace in acounty courthouse. Consequently, your third question Is answered in the negative. SUMMARY
TheCommissioners' Court is not required nor permitted to furnish office space for aretired District Judge. Heither is the Court authorized to rent 

### office apace in the courthouse to aretired judge.
Yours very truly,

WILLWIlsOR Attorney General **n**

BY*#~ &'b' Wayla Rivers, Jr. Assistant Attorney General

m:zt APPROVED: By H. Grady Chandler,

Chairman