# THE AITORNEY GENERAL OF TEXAS
**Ausmx.** TRXAS 78711

November 21, 1973

The Hoaorablt Dolph Briacot Gwtrnor of Texas stott cqBito1 Building Airtin, Tens 78711

Dear Governor Brircoe: Opinion No. H- 155 Re: Whether retired state judges may be appointed toan appellate board to review decisions of an administrative ntture You have requested our opinion concerning the propriety ofyour appointing retired judges toanappellate board ofreview for the Office of Comprehensive Health Planning. Such a review board is called for by newly enacted amendments to the Social Security Act (42 USC 5491,et seq. ). The 92nd Congrtns of the United States amended Title XI ofthe Social **Security** Act by adding §1122[Public Law 92.603, 86Stat. 1329(1972)]. The legislation calls for a state planning agency **(your** Office of Comprehensive Health Planning) to review proposed capital expenditures and determine whether they are “necessary” and would bein conformity with’the standards, criteria, or plans developtd by such agency ” for adequate health care facilities in the State. It requires, in subsection 1122(b)(3), that the state establish and maintain an appellate administrative procedure whereby a person proposing such a capital expenditure may appeal the recommendation ofthe designated agency “and will be granted an opportunity for a fair hearing. ” You indicate that some ofthejudges you contemplate appointing presently are 

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ssibting the **Court** of Criminal Appeals as Commissioners. Others rtrve **se** special **judge*** in certain administrative districts, and one is presently a prt-time professor oflaw 8t a State university, Pursuant to Article 5. 4k, ofthe Constitution, as amended in 1965, the LegisJature in 1971amended Article 6228b. V. T. C.S., the **statute** which govtrnt rht retirement ofjustices, judges and commissioners ofappeUate and district **courta.** Section 7ofthe Article, as amended, now provides in part:

p. 719The Honorable Dolph Briscoe, page 2 (H-155)

“During the time judges who have retired under the provisions of the Act are receiving retirement pay they shall not be allowed to appear and plead as attorneys at law in any **court** in this State. Any person who has retired under the provisions ofthis Judicial Retirement Act may elect in writing address to the Chief Justice of theSupreme **Court.**
. . to continue as ajudicial officer, in which instance they shall. with their **own** consent to each assignment, be subject toassignment.
. . . No person who has heretofore retired under the provisions **of**this Judicial Retirement Act shall be considered to have been ajudicial officer ofthis State after such retirement, **unless** such person has accepted anassignment by the Chief Justice to ait in a court ofthis State.” (emphasis added) A new s7aprovides:

“(a) Any person who has retired under the provisions ofthis Judicial Retirement Act and who within **ninety** (90) days after such retirement accepts an asrignmant by the Chief Justice of the Supreme Court or bya Presiding Judge ofanAdministrative Judicial District shall continue as a judicial officer. in which instance he shall, with his own consent to each assignment, be **subject** to assignment.
.. . .” We construe thtot sections ofArticle 6228b as affording the retired judge an **option** aa towhether he will remain ajudicial officer. See Werlein v. Calvert. 460S.**W.** 2d 398 (Tex. 1970); Buchanan v. State, 471S.W. 2d401 (Tex. Crim. 1971). cert. denied, 405 U.S. 930; Ex parte Hwell, 488 S.**W.** td 123 (Tex. Crim. 1972). Article 2, 51, ofthe Constitution provides for the separation ofgovernmental powers. After dividing the government into the three basic departments, legislative, **executive** andjudicial, it provides:

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p. 720The Honorable Dolph Briscoe, page 3 (H-155)

0,

. and noperson, or collection of persons btiig of one of these departments, shall exercise any power properly attached toeither of the others, except in the instances herein expressly permitted. ” Administrative determinations ofwhether a capital expenditure would be **“ necessary** **”** or in **conformity** with certain criteria established byan executive agency art executive decisions. Administrative appellate positions would be positions in the executive branch ofgovernment. Persons “of ” the judiciary, including retired judges who remain judicial officers, cannot conrtihationaily excrcire such executive functions. See Davis v. City of Lubbock, 326 S. W. 2d 699 (Ttx. 1959); Chemical Bank and Trurt~ Comprnv v. Falkner, **369 S.** W. 2d **427** (Tcx. 1963); **Attmney** General **Opinion H-7(1973).**  We advise you, therefore, that, in **our** opinion, any of the retired judges you have in mind whowish to remain judicial officers under 557and 7A of Article 622gb would be disqualified from accepting appointment toyour appellate administrative board. Article 2, $1, Constitution of Texas. This would apply to retired judges serving as Commissioners onthe Court of Criminal Appeals and to special judges now serving administrative districts. If any of the persons you have in mind have not elected to remain judicial officers, then, in theabsence ofany other impediment, we believe they would be eligible for appointment to the appellate board you envision. ofany of the retired judges you have in mind should, while remaining judicial officers, accept such appointments and qualify for theadministrative positiona, they would ipso facto relinquish their judicial status, we believe. In other words, they could accept. such appointments, butif they did, they would nolonger bejudicial officers. The reason for this is illustrated by the **cast** ofthe retired judge who is a professor at a state **univerdty.** Professors 8t state universities are “of ” the executive branch [see Attorney General Opinion H-6(1973)]. Article 2. 4I, ofthe Constitution prohibits **a** person, being of one department (executive), from exercising any powergroperly attached to a different department (judicial). [See Attorney General Opinion H-7(1973); Attorney General Letter Advisory NO. 65 (1973)].

p. 721The Honorable Dolph Briscoe. page 4 **(H-155)**

When a person holding one governmental position assumes another which the Constitution does not **permit** him tohold in conjunction with the first, the first position is ipso facto surrendered uponassumption of the stcbnd. Compare Pruitt v. Glen Rose Ind. School Dirt. No. I, 84S.W. 2d 1004 (Tex. 1935); **Thornam** v. Abernathy County Line Ind. School Dist., 290S.W. 152(Tex.Comm.App. 1927); City of Houston v. Stewart, ‘87 S.W. 663 (Tex. 1905); see Attorney General Letters,Advisory No. 62 (1973) and No. 63 (1973). Thus, a retired judge who has since become “of ” the executive branch ofState government as a professor has relinquished his status as ajudicial officer, whether or not he originally chose upon retirement to retain that designation. To the extent that Attorney General Opinions M-842 (1971)and M-ll94 (1972)would indicate otherwise, they are disapproved. Since the professor is nolonger ajudicirl officer, ifhe also accepts the post you contemplate, hewould then occupy only two executive positions, a permissible combination under Article 2,, §1, ofthe Constitution. Since both such positions would be “non-elective, ” the exception for non-elective State officers inArticle 16, 540, ofthe Constitution could apply and a prohibited dual office holding would **not** necessarily result. We are of the opinion, therefore, that the persons you contemplate appointing may legally accept such appointments, butby doing so, they will relinquish their status as judicial officers if they have notalready done so. SUMMARY Retired judges may legally be appointed **to** serve as administrative appellate officers, butthose who accept andqualify for such appointments may nolonger retain status as judicial officers. F&.& Attorney General of Texas

DAVID hi. KENDALL, Chairman Opinion Committee. I

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