The Attorney General of Texas
April 3, 1978
JOHN L. HILL.
Attorney General
Honorable Joseph N. Murphy Opinion ‘No. Ii- 114 9
Executive Director
Employees Retirement System Re: Administration of Judicial
of Texas Retirement.
Box 12357, Capitol Station
Austin, Texas 78711
Dear Mr.’Murphy:
You have asked a number of questions regarding the administration of
the judicial retirement system.
Recent amendments to article 200a, V.T.C.S., provide that a former
district judge who is not yet retired is eligible for assignment as a special
judge so long as he is not more than 70 years of age and has not been defeated
for reelection or removed from office. The amendment declares that such an
individual, during the period of his assignment as a special judge, shall be paid
um aroedmy, sun* 312
L”baock, TX. 76401 the same amount of compensation, salary, and
3aw47-6336
expenses that the regular judge is entitled to receive
from the county and from the state for such services.
4313 N. Tsn,h. sunr P
McAl*n. TX. 73301 Section 5a. In Attorney General Opinion H-1021 (19771, we held that the
6ww2-4347 “compensation” of a former district judge assigned as a special judge includes
the accrual of creditable service toward retirement. When the Legislature
added former district judges to the group available for special assignment,
however, it did not alter the relevant portions of artidle 62284 the judicial
retirement statute, to conform therewith. We are therefore obliged to apply
the requirements of article 6228b to this class of persons without the benefit
of legislative guidance.
You first ask whether a’ erson on assignment may retire from %gular
active service” under section 2i a) of article 62284 and if so, whether such an
individual may be eligible for the additional ten percent benefit payable
thereunder. Section 2(a) provides:
p. 4664
Honorable Joseph N. Murphy - Page 2 (H-1149)
Any judge in thii state may, at his option, retire from
regular active service after attaining the age of sixty-five
(65) years and after serving on one or more of the courts of
this state at least ten (10) years continuously or otherwise,
provided that hi last service prior to retirement shall be
continuous for a period of not less than one year. Any
person who has served on one or more of the courts of this
state at least twelve (12) years, continuously or otherwise,
regardless of whether he is serving on a court at such time,
shall after attaining the age of sixty-five (65) years, be
qualified for retirement pay under this Act. 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
classification 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: (0 those eligible for retirement under any provisions
of thii 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. However, the additional ten percent
(10%) benefit shall not be paid to any judge who has been out
of office for a period of longer than one (1) year at the time
he applies for retirement benefits under thii Act, except
that any provisions in any statute to the contrary notwith-
standing, a judge who on the effective date of this
amendment has retired at or before age seventy (70) and
who is now serving as the presiding judge of an administra-
tive judicial district is entitled to the additional ten percent
(10%) provided in this section. Any judge drawing retirement
at the effective date of this Act shall receive the same
retirement pay as judges of the same classification who have
retired on the current pay scale; that said judge shall be
entitled to any raises based upon increases in current salary.
In our opinion, there is one instance in which a former district judge may
retire while on special assignment under article 2008. Section 2(a) makes eligible
for retirement any person who is 65 years of age and who has 12 years cumulative
service, without regard to “whether he is serving on a court” at the time of his
retirement. However, the statute also provides that a judge may retire from
regular active service at age 65 with 10 years total service, provided that “his last
P. 4665
. L
Honorable Joseph N. Murphy - Page 3 (H-1149)
service prior to retirement Ihas been] continuous for a period of not less than one
year.” Siie a special judge is not on regular active service, he may not retire
under this provision.
Section 2(a) also establishes an additional 10 percent benefit for judges who
retire by the age of 70 or as soon thereafter as they become eligible to do so. The
statute provides that, under most circumstances, the additional benefit is not
available to “any judge who has been out of office for a period of longer than one (1)
year at the time he applies for retirement benefits.” Section 5(a) of article 2008
states that a former district judge, while on assignment “shall have all the powers
of a judge....” It does not, however, provide that a former district judge who
accepts an assignment “shall continue as a judicial officer,” as does a retired judge
under sections 7 and IA of article 6228b. Furthermore, in Werlein v. Calvert, 460
S.W.2d.398 (Tex. 1970), the Supreme Court held that, a retired judge
is authorized to exercise the powers of an office while
serving on assignment. He does not by virtue of the
assignment, however, hold an office . . . .
460 S.W.2d at 40L We do not believe, therefore, that a former district judge
serving on special assignment occupies an “office” for purposes of section 2(a) of
article 6228b. In our opinion, the benefit is available only to judges who retire
from office, not those who retire from special assignment. Thus, any creditable
service he aocrues while on assignment will not affect his eligibility to the
additional ten percent benefit created by section 2(a).
Your next question is whether a person assigned as a special judge may apply
for a disability benefit under section 3, which provides:
If a judge has served on one (1) or more of the courts of
this state at least seven (7) years, continuously or otherwise,
and because of disability can no longer perform his regular
judicial duties as such judge, he shall be retired from regular
active service, irrespective of .his age, and shall be entitled
to retirement pay during the remainder of his lifetime or
during the period of such disability, under the same
conditions and limitations as provided in Section 2 of this
Act.
Any judge coming within the purview of thii Statute who
shall apply for retirement by reason of physical incapacity
shall file with the Supreme Court of Texas written reports
by two (2) licensed physicians of the State of Texas fully
reporting the claimed physical incapacity; and the Chief
Justice of the Supreme Court of Texas is hereby vested with
p. 4666
Honorable Joseph N. Murphy - Page 4 (H-1149)
the authority to appoint a licensed physician of the State of
Texas to make any additional medical investigation they
deem necessary. Provided, however, that if such physical
disability is caused or results from the intemperate use of
alcohol or narcotic drugs, such facts shall be grounds for
denial of such benefits.
Thii provision is applicable when a judge is no longer able to perform his “regular
judicial duties.” Since a person assigned as a special judge does not have regular
judicial duties, section 3 does not apply.
You also ask whether a judge on assignment may qualify for retirement
benefits under that portion of section 4 which states:
Any person who has served on one (l) or more Courts of this
State as defined herein for twenty (20) years or more at any
time,’ continuously or otherwise, provided that his last
service prior to the date of retirement shall have been
continuous for a period of not less than ten (10) years, shall
likewise be entitled to retirement pay under the provisions
of thii Act.
Section 4 permits a judge with 20 years cumulative service to retire if his last
period of service prior to retirement has been continuous for at least 10 years.
However, he must remain on assignment for a continuous period of ten years. Just
as with a regular judge, ncontfnuous service” is not, of course, tantamount to a
daily courtroom appearance, and we believe that the special judge and the
appointing authority may agree to an arrangement which accomplishes the intent of
the ‘%ontinuous service” requirement.
Next, you ask whether a judge who accepts a special assignment should pay in
retirement contributions an amount equal to six percent of the monthly judicial
salary, or six percent of the salary he is actually paid. While on special assignment,
a former district judge is entitled to receive “the same amount of compensation,
salary and expenses” as a regular judge. Section 5 of article 6228b directs that
every judge “shall contribute the same percentage of his annual salary paid to him
by the State which is contributed by each member of the Employees Retirement
System.” In Attorney General Opinion H-667 (1975), we construed this provision to
mean that judges ere to “contribute six percent (6%) of their annual compensation
paid by the State to the Judicial Retirement System,” the “same rate as other
employees in general.” The Employees Retirement System has interpreted section
8A of article 62288 to require that the 6 percent contribution of state employees
should be applied only to that portion of their salary actually paid. In our opinion,
such a construction is equally applicable to the retirement contributions of a
former district judge who accepts a special assignment. We are of the opinion,
p. 4667.
.
Honorable Joseph N. Murphy - Page 5 (H-1149)
therefore, that such an individual should contribute an amount equal to 6 percent of
the salary he is actually paid.
Your final question is whether a former district judge with more than 10 but
leas than 12 years creditable service is eligiile for the death benefit plan under
section 2(a-1) of article 6226b, which provides:
Prior to retirement any contributing member with ten (10) or
more years creditable service, and any noncontributing member
with twelve (12) or more years creditable service, may select a
Death Benefit Plan and designate a nominee to receive a reduced
monthly annuity either for life, or for a ten (10) year guaranteed
period, to become effective and payable, in lieu of the refund of
the member’s contributions, to such nominee beginning the day
following the death of such member. If the qualified member
dies without having made such Death Benefit Plan Selection, the
surviving spouse may choose the plan in the same manner as if
the member had completed the’selection; otherwise, contribu-
tions shaR be refunded to the designated beneficiary.
Application for such plan shall be on forms prescribed by the
State Board of Trustees. The reduced benefits shall be computed
in the same manner as for a member’s service retirement as
provided elsewhere in this Act. The ages of the member and the
nominee at the date of the member’s death shall be used in
determining the reduced annuity. The plan selected shall become
null and void upon the effective date of the member’s retire-
ment, provided, however, that any member with seven (7) or
more years of creditable service who is required to retire on
disability, as provided elsewhere in this Act, shall be eligible to
select a reduced annuity in the same manner as that provided for
members retiring on a service retirement.
Section 2(8-D applies to any ‘contributing member with ten (10) or more years
creditable service.” Contributions to the retirement system are made on a monthly
basis. V.T.C.S. art. 6228b, S 5. In our opinion, a judge is a “contributing member”
if, during a particular month, he makes any contribution to the Judicial Retirement
System. So long as a judge accepts a special assignment during any part of a
month, he receives compensation and thus makes a contribution for that month.
Accordingly, we believe that the death benefit plan is available to R judge who has
served on special assignment during the month of his death.
SUMMARY
A former district judge who is not yet retired is eligible
for assignment as a special judge under the circumstances
stated in article 2008, V.T.C.S.
p. 4668
Honorable Joseph N. Murphy - Page 6 (H-1149)
A judge on special assignment does not qualify for a
disability benefit under article 6228b, section 3 if the
disability occurs while he is serving on special assignment.
A judge on special assignment should pay in retirement
contributions an amount equal to six percent of the salary
actually paid him.
The death benefit plan in article 62284 section 2(8-l) is
available to a judge who serves on special assignment during
the month of his death and who otherwise qualifies
APPROVED:
Opinion Committee
jst
p. 4669