Honorable Richard E. McDaniel 

County Attorney 

Shelby County 

Center, Texas. Opinion No. UW - 26 

Re:~Is the Commissioners' 

Court required to 

furnish a retired 

District Judge an 

office, and, If they 

are not required to 

do so, is it normissible for the 

County to furnish 

him an office or 

rent him an office 

in the County CourtDear Mr. McDaniel: house? 

Your request for an opinion concerns the authority of 

a County Commissioners* Court to furnish office space for a retired District Judge., In this connection, you have presented 

three questions, which are In substance as follows: 

(1) Is the Commissioners' Court required to 

furnish a retired District Judge an office? 

(2) If they are not required to do so, is it 

psrmissible for the county to furnish a 

retired District Judge an office in the 

courthouse? 

(3) Is it p8ImiSSiblO for the county to rent a 

retired District Judge an office in the 

courthouse when this space is not otherwise being used? 

Section 2 of Article 3899b, Vernon's Civil Statutes, 

provides: 

"Suitable offices and stationery and blanks 

necessary in the performance of their duties may 

in the discretion of the Commissioners' Court also 
Hon. Richard E. McDaniel, page 2 - ww-26 

be furnished to resident District Judges,. . . 

and may be paid for on order of the Commissions 

ers t Court 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 a resident District Judge; therefore,since 

the above quoted statute is discretionary in nature, the Commissioners’ Court is not required to furnish an office, for an active 

or retired District Judge. 

Since Section 2 of Article 3899b is not mandatory In 

nature, we must now consider your second question, as to whether 

the Commissioners’ Court would be permitted to furnish a retired 

District Judge office space within the courthouse. 

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

“The Legislature shall provide for the 

retirement and compensation of Judges and Commlsaioners of the Appellate Courts and Judges of the 

District and Criminal Distrfct Courts on account of 

length of service, age, or disability, and for thefir 

reassignment to active duty where and when needed. 

(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 as Article 6228b, V.C.S. 

Section 7 thereof provides: 

“Judges retired under the pro’visions of this 

Act e . ~ shall, wfth their own consent, be subject 

to assignment by the Chief Justfce of the Supreme 

Court to sit in any Court of this State of the same 

dignity, or lesser, as that from whfch they retired, 

and if in a District Court, under the same rules as 

provided by the present adminfstrative judfcial act, 

and while so assigned, shall have all the powers of 

judges thereof . . ** (Emphasis ours). 

It seems clear that a District Judge retired under the 

provisions of Section 7 of Article 6228b, though subject to 

assignment by his consent, will have the powers of the judges of 

the court to which assigned only whi.le so assigned. In the 

light of this fact, it seems that only while serving in this 
Hon. Richard E. McDaniel, page 3 - ww-26 

capacity could the District Judge possibly uallfy as a resident 

~judge as required by Section 2 of Article 3 8 qqb. 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 a resident District Judge within the meaning of Section 2 

of Article 3899b. Consequently, in answer to your second question, 

you are advised that the Commissioners I Court does not have 

authority to furnish office space in the courthouse for a retired 

District Judge. 

In view of the fact that we have answered both of the 

foregoing questions in the negative, it now becomes necessary 

that we pass on your third question as to whether it Is permiss ible for the Commissioners ’ Court to rent office space in the 

courthouse to a retired District Judge when this space is not 

otherwise being used. 

In the case of Dodson v. Marshall, 11.8 S.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 a county 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, and would afford a convenience to those transacting business in the courthouse. 

In Tarrant County v. Rattikin Title Co., 199 5. 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 a special 

room for the use of abstract companies it could not charge rent 

for this office space. The Court I, in this opinion, distinguished the Dodson Case on the grounds that the cold drink stand was 

erected in the courthouse for that specific purpose and was not 

located in that part of the courthouse designated for the use of 

county off Ices. To allow 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 t Court and private enterprise In the relation of 

landlord and tenant, and in a sense would be applying public 

property for private use, which is against the laws of the State. ’ 

It has been concluded above that a District Judge 

retired under the provisions of Section 7 of Article 6228b has 

no active powers as a District Judge until assigned under the 

provisions of that Section. It is further concluded, therefore, 

that, inasmuch as he has no official 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 a county courthouse. Consequently, 

your third question Is answered in the negative. 

SUMMARY 

The Commissioners' Court is not 

required nor permitted to furnish office 

space for a retired District Judge. Heither is the Court authorized to rent office apace in the courthouse to a retired 

judge. 

Yours very truly, 

WILL WIlsOR 

Attorney General 

n 

BY*#~ &'b' 

Wayla Rivers, Jr. 

Assistant Attorney General 

m:zt 

APPROVED: 

By H. Grady Chandler, 

Chairman