,THE ATTBRNEY GENERAL 

UBIF~EXAS 

Honorable Robert S. Calvert Opinion No. M-1269 

Comptroller of Public Accounts 

State Finance Building Re: May an elected official 

Austin, Texas 78711 who is eligible for retirement under the Employees Retirement System 

of Texas cease performing 

the functions of his office 

prior to qualification of 

his successor in office, 

in view of Art. XVI, Sec. 

Dear Mr. Calvert: 17, Texas Constitution? 

In your recent opinion request you presented the following information and questions: 

"In view of your holdings in your Opinion M-627 

with regard to District Judges, I am asking the 

following questions: 

"1. If a District Attorney or any other elected 

official, each of whom are eligible for service retirement [under the Texas Employees Retirement System] 

and each of whom makes application to retire on a 

date of his choosing, which date meets the retirement laws, does this fix the date the office is 

vacated and the date he is eligible to execute retirement options and the date he is to be removed 

from the payroll to be placed on the following day 

on the retirement payroll, even if no successor has 

qualified? 

"2 . In your Opinion M-760, you have held that 

officers may abandon their offices under certain conditions. If a District Attorney or any other elected 

official, including members of the Legislature, submits a letter to the Governor reading similar to the 

following: 

"'I, John Doe, duly elected or appointed District Attorney of the Judicial District, being 

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Hon. Robert S. Calvert, page 2 (M-1269) 

hereby eligible for retirement, do hereby state that 

I am retiring on (some future date) and as of that 

date, I am abandoning and relinquishing said office 

and will no longer perform the duties of said office after that date.' 

"Would this constitute abandonment of the office and enable said officer to be placed upon the 

retirement payroll on the following date, provided 

said date meets the retirement laws?" (Brackets ours.) 

Our answer to your first question is yes. Article XVI, 

Section 17 of the Texas Constitution, provides that "all officers 

within this State shall continue to perform the duties of their 

offices until their successors shall be duly qualified." A district attorney is an officer of the State. State v. Johnson, 

12 Tex. 231 (1854); Lackey v. State, 190 S.W.2d 364 (Tex.Crim. 

1945). Article XVI, Section 62, subsection (a) of the Texas 

Constitution, which was adopted.subsequently to Section 17 of 

the same Article, creates the Employees Retirement System of 

Texas. Pursuant to this constitutional provision the Legislature 

enacted Article 6228a, Vernon's Civil Statutes, which establishes 

an administrative board, the qualifications for membership in the 

State's retirement system, 

retirement benefits. 

and the method for applying for service 

We have previously held in Attorney General's Opinion 

M-627 (1970) that: 

"In view of the express provisions of Section 

l-a of Article V of the Constitution of Texas and 

Subdivision (a) of Section 2 of Article 6228b, it 

is our opinion that a judge who is eligible for 

retirement has the constitutional right to retire. 

Therefore, the provisions of Section 17 of Article 

XVI of the Constitution of Texas should not be 

construed so as to prevent a judge from retiring 

who is eligible for retirement if he desires to 

avail himself of the provisions of Section l-a 

of Article V of the Constitution of Texas and the 

provisions of Article 622833, Vernon's Civil 

Statutes (Judicial Retirement Act). 

. . 

. . . 

II 

. . . A judge eligible for service retirement who makes application to retire on a date of 

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Hon. Robert S. Calvert, page 3 (M-1269) 

his choosing thereby fixes the date the office 

is vacated, the date he is eligible to exercise 

retirement options and the date he is to be 

removed from the judicial payroll to be placed 

on the following day on the retirement payroll." 

Our opinion is that Article XVI, Section 17, Texas 

Constitution, must be construed so as not to deny one who has a 

right under Article XVI, Section 62, Subsection (a), Texas Constitution, and the statutes enacted pursuant thereto, and who has 

met the requirements contained therein, the opportunity to validly exercise that right. To do so in this instance would be to 

allow one other than the retiree to determine the date of the 

retiree's retirement, a determination that only the retiree may 

make under Article 6228a, Vernon's Civil Statutes. 

You are accordingly advised that under the facts submitted, the district attorney has the constitutional right to 

make application to retire on a date of his choosing, thereby 

fixing the date the office is vacated. Article XVI, Section 17, 

Constitution of Texas, requiring all officers to perform their 

duties of office until their successor shall be duly qualified, is 

therefore not applicable in this situation of retirement under 

Article XVI, Section 17, Constitution of Texas, and must yield 

thereto. Consequently, no one may collect compensation for the 

period of time the office became vacant and until the successor 

qualifies. In view of our answer to your first question it is 

unnecessary to answer your second question. 

SUMMARY 

A district attorney eligible for service 

retirement who makes application to retire on 

a date of his choosing thereby fixes the date 

the office is vacated, and the date he is eligible to execute retirement options and the 

date he is to be removed from the payroll to 

be placed on the following day on the retirement payroll, even though his successor has 

not qualified. 

C. MARTIN 

ney General of Texas 

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Hon. Robert S. Calvert, page 4 

Prepared by Linda Neeley 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

Bill Campbell 

Roland Allen 

Ben Harrison 

Marietta Payne 

SAMUEL D. MCDANIEL 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLA WHITE 

First Assistant 

(M-1269) 

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