The Attorney General of Texas
December 15, 1978
JOHN L. HILL
Attorney General
Honorable Joseph N. Murphy, Jr. Opinion No. H- 12 8 5
Executive Director
Employees Retirement System of Texas Re: Whether a judge who
P. 0. Box 12337, Capitol Station retires before he is 65 is eligible
Austin, Texas 78711 for the additional 10% benefit
authorized by article 6228b,
S 2(a) for those who retire before
age 70.
Dear Mr. Murphy:
You have requested our opinion regarding a provision of article 6228b.
V.T.C.S., the Judicial Retirement Act. Section 2(a) authorizes the retirement
of judges who have attained the age of 65. It further states, in pertinent
part:
Any person retiring in accordance with this Act after
the effective date of this amendment shall, during the
remainder of such person’s lifetime receive from the
State of Texas monthly a base retirement payment
equal to fifty percent (50%) of the salary being
received by a judge of a court of the same classifica-
tion last served by such person as judge. An additional
ten percent (10%) of the applicable salary shall be
added to the base retirement payments to the
following judges: (1) those eligible for retirement
under any provisions of this Act as amended who retire
at or before age seventy (70); and (2) those who are not
eligible by length of service to retirement benefits at
age 70 but who retire immediately upon becoming
eligible.
(Emphasis added). Section 2(d) provides for the retirement of any judge who
ls at least 60, but less than 65 years of age. The benefits accruing to such a
person are
reduced from age sixty-five (65) years and his monthly
base retirement payments shall be the following
p. 5073
Honorable Joseph N. Murphy, Jr. - Page 2 (H-1285)
percent of the salary being received by a judge of a court of
the same classification last served by such person as a judge,
based upon his retirement age. . . .
An individual who retires at age 60 is eligible for a 40 percent benefit, and the
percentage increases for each year to age 64, when it is 47.7 percent of full salary.
You ask whether a retiree under section 2(d) is eligible for the additional 10 percent
benefit provided by section 2(a).
In our opinion, the additional 10 percent benefit is available to a judge who
retires under section 2(d). The benefit “shall be added to the base retirement
payment” of any judge “eligible for retirement under s provision” of the Act,
provided he retires “at or before age seventy (701.” Section 2(d), describing
“monthly base retirement payments” for certain retirees, is indisputably such a
provision. In addition, while section 2(d) was added in 1971, section 2(a) was last
amended in 1977. Since the legislature must be presumed to have chosen its
language carefully, and since section 2(a) represents the latest expression of
legislative intent, it is our opinion that a judge who retires prior to age 65 under
the provisions of section 2(d) of article 6228b is eligible for the additional 10
percent provided by section 2(a).
SUMMARY
A judge who retires prior to age 65 under the provisions of
section 2(d) of article 6228b, V.T.C.S., is eligible for the
additional 10 percent benefit provided by section 2(a) of that
statute.
Opinion Committee
P. 5074