### ,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 inoffice, inview ofArt. XVI, Sec. Dear Mr. Calvert: 17, Texas Constitution?

Inyour recent opinion request you presented the following information and questions:

"Inview ofyour holdings inyour Opinion M-627 with regard to District Judges, Iam asking the following questions: "1. Ifa District Attorney or any other elected official, each ofwhom are eligible for service retirement [underthe Texas Employees Retirement System] and each ofwhom makes application to retire on a date of his choosing, which date meets the retirement laws, does this fix thedate the office is vacated and thedate he is eligible to execute retirement options and the date he is to be removed from thepayroll tobe placed on the following day on the retirement payroll, even ifno successor has qualified?
"2. Inyour 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 DistrictAttorney 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 Iam retiring on (somefuture date) and as of that date, Iam abandoning and relinquishing said office andwill no longer perform the duties of said office after that date.' "Would this constitute abandonment of the office and enable said officer tobeplaced upon the retirement payroll on the following date, provided said date meets the retirement laws?" (Bracketsours.) Our answer toyour first question isyes. Article XVI, Section 17of the Texas Constitution, provides that "allofficers within this State shall continue toperform the duties of their offices until their successors shall be duly qualified." A district attorney is an officer of the State. State v. Johnson, 12Tex. 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 17of the sameArticle, 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 formembership in the State's retirement system, retirement benefits. and themethod for applying for service

We have previously held inAttorney General's Opinion M-627 (1970)that:

"Inview of the express provisions of Section l-a ofArticle V of the Constitution of Texas and Subdivision (a)of Section 2ofArticle 6228b, it is our opinion that a judge who is eligible for retirement has the constitutional right to retire. Therefore, theprovisions of Section 17 ofArticle XVI of the Constitution of Texas should not be construed soas toprevent a judge from retiring who is eligible for retirement ifhe desires to avail himself of the provisions of Section l-a ofArticle V of the Constitution of Texas and the provisions ofArticle 622833,Vernon's Civil Statutes (JudicialRetirement Act).

..

. . .

II

. . . A judge eligible for service retirement who makes application to retire on adate of
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his choosing thereby fixes the date the office isvacated, the date he is eligible to exercise retirement options and thedate he is tobe removed from the judicial payroll tobe placed on the following day on the retirement payroll."
Our opinion is thatArticle XVI, Section 17, Texas Constitution, must be construed so asnot todeny onewho has a right under Article XVI, Section 62, Subsection (a),Texas Constitution, and the statutes enacted pursuant thereto, andwho has met the requirements contained therein, the opportunity tovalidly 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, adetermination 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 adate of his choosing, thereby fixing the date the office isvacated. Article XVI, Section 17, Constitution of Texas, requiring all officers toperform 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, andmust yield thereto. Consequently, no onemay collect compensation for the period of time the office became vacant and until the successor qualifies. Inview of our answer toyour first question it is unnecessary to answer your second question. SUMMARY
A district attorney eligible for service retirement who makes application to retire on adate of his choosing thereby fixes the date the office isvacated, and the date he is eligible to execute retirement options and the date he is tobe removed from thepayroll to beplaced 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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