(dissenting).
Section 1-a, Article V of the Texas Constitution, in my opinion clearly states that the office of a judge becomes vacant when the judge reaches seventy-five.1 Without *403an office, he is stripped of judicial powers to perform the functions of a judge. The section contains thirteen separate paragraphs, but only the first concerns reassignment after judicial retirement. That paragraph contains two sentences and each sentence addresses itself to distinct and different problems. The first is a general authorization to the Legislature to provide for the retirement, compensation, and assignment of judges in retirement. That section commences with the limiting phrase, “Subject to the further provisions of this Section." It is the second sentence that states the limitations upon the Legislature. That sentence states that the office of every judge “shall become vacant when the incumbent reaches the age of seventy-five.” The phrasing of Section 7, Article 6228b, V.T.C.S.,2 which provides for the continued use of retired judges, is also significant. It states that a retired judge may “continue as a judicial officer.” Reassignment is authorized in the case of a retired judge who thus continues as “a judicial officer.”
The statute in authorizing reassignment of a “judicial officer”, and the Constitution in declaring that an “office shall become vacant”, were using understandable terms which go to the heart of eligibility for service in this case.
The majority has construed the term “office” as used in Article V to mean only that office to which the judge was originally elected and from which he initially retired. The term, in my opinion, must also include the position filled by a “judicial officer” serving under the provisions of Article 6228b. To be a “judicial officer” one must have an office. “ ‘Officer’ is inseparably connected with ‘office’; there can be no officer without an office.” 67 C.J.S., Officers, Sec. lb. That the duties of the judicial officer under the statute are less regular than those of the duly elected judges and justices, and arise only with the consent of the officer, should not make the position he occupies any less an “office” under the Constitutional provision. Nor is it material that the Legislature has not fixed the term of a judicial officer at a prescribed number of years. I would point out that while the terms of several judicial officers may vary in length, the term of each judicial officer is of fixed duration. As I construe the Constitutional and statutory provisions involved in this case, the duration of a particular individual’s term as a judicial officer can readily be determined by anyone knowing the officer’s seventy-fifth birthday, the day on which the judicial officer must vacate his office.
As I apply the Constitutional language “shall become vacant” to the facts of this case, the office occupied by District Judge Werlein under the provisions of Article 6228b, automatically became vacant when Judge Werlein reached the age of seventy-five. But according to the majority’s holding, the words "shall become vacant” in Article V now mean “shall not necessarily become vacant, but shall remain occupied for some purposes.” A vacant public office is one which lacks a public official who *404can perform its functions. The term “vacant” has been defined as “empty; unoccupied; as ‘vacant office.’ Schaffner v. Shaw, 191 Iowa 1047, 180 N.W. 853, 854.” Black’s Law Dictionary, p. 1717 (DeLuxe, 4th ed. 1951). The same authority defines “vacancy” as “an unoccupied or unfilled post, position, or office. Alcorn ex rel. Hendrick v. Keating, 120 Conn. 427, 181 A. 340. An existing office, etc., without an incumbent. State ex rel. Hopper v. Board of Election Com’rs of City of Tipton, 196 Ind. 472, 149 N.E. 69, 71. The state of being destitute of an incumbent, or a proper or legally qualified officer. Ashcroft v. Goodman, 139 Tenn. 625, 202 S.W. 939.”
The legislative history of the judicial retirement act shows an intent to provide retirement for judges who have served the state, an intent to encourage and induce judges to retire as soon as eligible, and an intent to use for a time those judges in retirement on assignment. However, this use is limited by the new and presumably purposeful language added to the Constitutional provision in 1965. In my opinion, the clear purpose of that language was to make mandatory the abrupt, involuntary termination of judicial service by judges who reach age seventy-five. The Legislature has provided an incentive for retirement by making available during retirement one-half the judicial salary. Moreover, the Legislature has encouraged the earliest possible retirement by providing a ten per cent increase in retirement pay for those who retire before the age of seventy or as soon thereafter as they are eligible. Section 2, Article 6228b, V.T.C.S. Ideally, under this Legislative scheme, a judge would retire from the office to which he was elected when first eligible for retirement benefits, and then by his own choice would become a judicial officer available for assignment under Article 6228b. He would continue to serve in this latter position or office until he reached the mandatory retirement age of seventy-five established by Article V of the Constitution.
To me, the philosophy of the judicial retirement acts has been that of making judicial offices available to a younger generation of judges as early as possible. I therefore disagree with the thought expressed in the majority opinion that a facet of the judicial retirement provisions allows certain qualified judges to continue in service for an unlimited period of time.
I would hold that at age seventy-five, a judge is no longer a “judicial officer” under Article 6228b because his office has “become vacant” under Section 1-a, Article 5 of the Texas Constitution.
HAMILTON, J., joins in this dissent.
. Subject to the further provisions of this Section, the Legislature shall provide for the retirement and compensation of Justices and Judges of the Appellate Courts and District and Criminal District Courts on account of length of service, age and disability, and for their reassignment to active duty where and when needed. The office of every such Justice and Judge shall become vacant when the incumbent reaches the age of seventy-five (75) years or such earlier age, not less than seventy (70) years, as the Legislature may prescribe; * * *. (Emphasis added)
. See. 7 * * * Any person who has retired under the provisions of this Judicial Retirement Act may elect in writing addressed to the Chief Justice of the Supreme Court within ninety (90) days after such retirement or within ninety (90) days after the effective date of this amended section, whichever is the later date, to continue as a judicial officer, in which instance they shall, with their own consent to each assignment, be subject to assignment by the Chief Justice of the Supreme Court to sit in any court of this state of the same dignity, or lesser, as that from which they retired, and if in a District Court, under the same rules as provided by the present Administrative Judicial Act (Art. 200a), and while so assigned, shall have all the powers of judges thereof. While assigned to said court, such judges shall be paid an amount equal to the salary of judges of said court, in lieu of retirement allowance. No person who has heretofore retired under the provisions of this Judicial Retirement Act shall he considered to have heen a judicial officer of this state after such retirement, unless such person has accepted an assignment by the Chief Justice to sit in a court of this state. (Emphasis added)