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 

to an appellate board to 

review decisions of an 

administrative ntture 

You have requested our opinion concerning the propriety of your 

appointing retired judges to an appellate board of review 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 5 491, et seq. ). 

The 92nd Congrtns of the United States amended Title XI of the Social 

Security Act by adding § 1122 [Public Law 92.603, 86 Stat. 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 be in 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 of the designated agency “and will be granted an opportunity for a fair hearing. ” 

You indicate that some of the judges you contemplate appointing presently are l 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 of law 8t a State university, 

Pursuant to Article 5. 4 k, of the Constitution, as amended in 1965, the 

LegisJature in 1971 amended Article 6228b. V. T. C. S., the statute which 

govtrnt rht retirement of justices, judges and commissioners of appeUate and 

district courta. Section 7 of the Article, as amended, now provides in part: 

p. 719 
The 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 of this Judicial Retirement 

Act may elect in writing address to the Chief Justice of 

the Supreme Court. . . to continue as a judicial officer, 

in which instance they shall. with their own consent to 

each assignment, be subject to assignment. . . . No 

person who has heretofore retired under the provisions 

of this Judicial Retirement Act shall be considered to 

have been a judicial officer of this State after such retirement, unless such person has accepted an assignment by 

the Chief Justice to ait in a court of this State.” (emphasis 

added) 

A new s 7a provides: 

“(a) Any person who has retired under the provisions 

of this Judicial Retirement Act and who within ninety (90) 

days after such retirement accepts an asrignmant by the 

Chief Justice of the Supreme Court or by a Presiding Judge 

of an Administrative 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 of Article 6228b as affording the retired judge 

an option aa to whether he will remain a judicial officer. See Werlein v. Calvert. 460 S. W. 2d 398 (Tex. 1970); Buchanan v. State, 471 S. W. 2d 401 (Tex. 

Crim. 1971). cert. denied, 405 U.S. 930; Ex parte Hwell, 488 S. W. td 123 

(Tex. Crim. 1972). 

Article 2, 5 1, of the Constitution provides for the separation of governmental powers. After dividing the government into the three basic departments, 

legislative, executive and judicial, it provides: 

. 

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

0, 

. and no person, or collection of persons 

btiig of one of these departments, shall exercise 

any power properly attached to either of the others, 

except in the instances herein expressly permitted. ” 

Administrative determinations of whether a capital expenditure would 

be “necessary” or in conformity with certain criteria established by an 

executive agency art executive decisions. Administrative appellate positions 

would be positions in the executive branch of government. 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 who wish to remain judicial officers under 5 5 7 and 7A of 

Article 622gb would be disqualified from accepting appointment to your appellate 

administrative board. Article 2, $1, Constitution of Texas. This would apply 

to retired judges serving as Commissioners on the 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 the absence of any other impediment, we believe they would 

be eligible for appointment to the appellate board you envision. 

of any of the retired judges you have in mind should, while remaining 

judicial officers, accept such appointments and qualify for the administrative 

positiona, they would ipso facto relinquish their judicial status, we believe. 

In other words, they could accept. such appointments, but if they did, they 

would no longer be judicial officers. The reason for this is illustrated by the 

cast of the 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. 4 I, of the 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. 721 
The Honorable Dolph Briscoe. page 4 (H-155) 

When a person holding one governmental position assumes another which 

the Constitution does not permit him to hold in conjunction with the first, 

the first position is ipso facto surrendered upon assumption of the stcbnd. 

Compare Pruitt v. Glen Rose Ind. School Dirt. No. I, 84 S. W. 2d 1004 

(Tex. 1935); Thornam v. Abernathy County Line Ind. School Dist., 290 S. 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 

of State government as a professor has relinquished his status as a judicial 

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 no longer a judicirl officer, if he also accepts the post you contemplate, he would then occupy only two executive positions, a permissible 

combination under Article 2,, § 1, of the Constitution. Since both such positions would be “non-elective, ” the exception for non-elective State officers 

in Article 16, 5 40, of the 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, but by doing so, they will 

relinquish their status as judicial officers if they have not already done so. 

SUMMARY 

Retired judges may legally be appointed to serve 

as administrative appellate officers, but those who accept 

and qualify for such appointments may no longer retain 

status as judicial officers. 

F&.& 

Attorney General of Texas 

DAVID hi. KENDALL, Chairman 

Opinion Committee. 

I 

. 

p. 722