The Attorney General of Texas
May 18, 1983
JIM MATTOX
Attorney General
Mr. Clayton T. Garrison Opinion No. JM-34
Supreme Court Building
Executive Director
P. 0. Box 12546
Austin. TX. 78711. 2546 Employees Retirement System of Texas Entitlement of retired
512/475-2501 P. 0. Box 13207 yzdge to continued retirement
Telex 9101874.1367 Austin, Texas 78711 benefits when he has been
Telecopier 5121475-0266 elected to 8erve a regular
term as district judge
,607 Main Sl.. suite 1400
Dallas. TX. 75201.4709 Dear Mr. Garrison:
214l742.8944
You advise that a retired annuitant of the Judicial Retirement
4624 Alberta Ave., Suite 160
system, see V.T.C.S. title llOB, Subtitle E, has been elected to serve
E, Paso. TX. 79905-2793 as a district judge. His term of office began on January 1, 1983.
9151533.3464 You state that there are no clear statutory guidelines relating to
retirement benefits under those circumstances, and you have therefore
asked the following questions:
,220 Dallas Ave.. Suite 202
Houston. TX. 77002.6986
713/650-0666 1. Will the judge’s annuity be suspended
during his term of office?
606 Broadway, Suite 312
2. If the answer to question no. 1 is 9, are
Lubbock. TX. 79401.3479
we correct in concluding that no contributions
606/747-5238
could be deducted from the judge’s future salary
warrants and that no additional rights would
4309 N. Tenth, Suite 5 accrue? If not, please explain what benefit
McAllen. TX. 78501~1665 entitlements the judge would accrue based upon his
5121662.4547
current period of service and when they would
become payable.
200 Main Plaza. Suite 400
San Antonio. TX. 76205-2797 3. If the answer to question no. 1 was yes,
512/225-4191 will the judge make contributions to the Judicial
Retirement System under section 42.001 and 45.101
An Equal OpportunityI of title IlOB during the upcoming period of
Affirmative Action Employer service?
4. If the answer to the third question is yes,
then, upon retirement or death, would we:
(4 reinstitute the original annuity and
refund any intervening contributions;
,-.
p. 144
Mr. Clayton T. Garrison - Page 2 (JM-34)
(b) recompute the original annuity with the
same option, beneficiaries, and reduction
factors, but with credit for the additional
service included; or
Cc) calculate a new retirement as if the
original retirement had never taken palace?
5. If the answer to question no. 3 is "0, are
we correct in assuming that, upon retirement or
death, we would reinstitute the retirement
benefits at the point they were suspended? If
not, please explain what benefits entitlements the
judge would have and when they would become
payable.
We believe that in enacting article 6228b. V.T.C.S., which has
been repealed and codified as subtitle E, title llOB, V.T.C.S., the
legislature authorized compensation & for persons who no longer are
justices or judges of the named courts although these persons may
elect to be "judicial officers" subject to assignment to those courts.
See 542.101 et seq.; Attorney General Opinion MU-586 (1982). As we
zstrue the subtitle, it does not authorize retirement compensation
for a "retiree" who loses his status as such by being reelected or
reappointed to a judicial office that is included in the Judicial
Retirement System. Were we to conclude otherwise, we would be
constrained to hold that the subtitle violates the Texas Constitution.
The appropriation of the necessary sums of money from the general
revenue fund to pay judicial retirement annuities is permitted by
article V, section l-a, and article XVI, section 67(d), of the Texas
Constitution. Those sections direct the legislature to provide for
the retirement and compensation of justices and judges of the
appellate and district courts and their reassignment to active duty
where and when needed, and to set the contributions and benefits of
the judicial retirement system. When the people adopted article V,
section l-a, they limited the scope of the legislature's power under
that provision to a program that includes both the retirement and the
comnensation of the named individuals and their reassisnment to active
duty while retired and receiving retirement compensation. See Farrar
V. Board of Trustees of Employees Retirement System of Texas, 243
S.W.2d 688 (Tex. 1951); Attorney General Opinion M-95 (1967). Words
in a constitutional amendment must be "given their natural, obvious
and ordinary meanings as they are understood by citizens who adopted
the amendment." State V. Clement*, 319 S.W.2d 450, 452 (Tex. Civ.
APP. - Texarkana 1958, writ ref'd); Attorney General Opinion M-28
(1967). We believe that in adopting article V, section l-a, the
people contemplated "retirement" to mean to end or cease, rather than
to suspend, interrupt, or temporarily halt. ?ee Towne V. Towne, 117
Mont. 453, 159 P.2d 352, at 357 (1945); Webster's Third New
p. 145
,
Mr. Clayton T. Garrison - Page 3 (JM-34:
International Dictionary 2359 (1961); Black's Law Dictionary 1183,
1319 (5th ed. 1979).
Therefore, we conclude that the constitution empowers the
legislature to provide judicial retirement compensation only to
persons who no longer serve as justices or judges except for service
as assigned judges.
Because we answer your first question in the affirmative, we need
not address your second question. Your third question inquires
whether a formerly retired justice or judge who received retirement
annuities but later resumed the office of justice or judge of an
appellate or district court must make contributions to the Judicial
Retirement System while he holds the office. We believe that the
annual membership fee required by section 42.002 and the contributions
deducted monthly from the state compensation of members under section
45.101 are mandatory for a person holding such a judicial office.
Section 42.001 of title llOB, V.T.C.S., expressly limits
membership in the Judicial Retirement System to judges, justices, and
commissioners of the named courts. This section further mandates that
persons holding those offices be members of the system beginning on
the first day that they hold such judicial offices. The codification
of article 6228b as subtitle E. title llOB, reiterates the same
membership limitation in section 42.103, which states that a retiree
who makes an election to be a judicial officer subject to assignment
to certain courts may not rejoin the retirement system or receive
credit in the retirement system for service performed under
assignment. During the time that a person is a "retiree," even though
he may be a "judicial officer" subject to assignment, he does not hold
the office of justice or judge of the court in question and% not
eligible for membership in the retirement system as provided by
section 42.001. A person terminates his membership in the system when
he ceases to be a justice, judge, or commissioner and either withdraws
his contributions to the system or receives a retirement annuity or
retirement allowance. Sets. 42.003 and 42.004. Sections 42.001 and
42.103 require a person be a member of the Judicial Retirement System
while holding the office of justice or judge of an appellate or
district court and prohibit membership to persons not holding such an
office.
Because we answer your third question in the affirmative, we need
not address your fifth question. In answer to your fourth question,
we believe that your third suggested answer is correct. In our
opinion, YO" should calculate a new retirement on the member's
retirement or death as if the original retirement had never taken
place. A former retiree had a vested right to the retirement benefits
for which he was eligible under the constitution and subtitle E, title
P llOB, V.T.C.S., for as long as he continued the status that made him
eligible. A person who voluntarily changes his status in a manner
p. 146
Mr. Clayton T. Garrison - Page 4 (~~-34)
that renders him no longer eligible for the retirement benefits
authorized by the constitution and statutes is not deprived of a
property right without due process of law. We believe that a former
retiree who resumes membership in the Judicial Retirement System
reacquires all the rights and obligations of that membership and is
entitled to retire again with his retirement benefits and options
unaffected by his previous retirement. The legislature manifested its
intention to encourage retirement under the Judicial Retirement System
not earlier than age 65 by actuarily reducing the retirement annuity
of certain members who retire before that age and to encourage
retirement not later than age 70 by increasing the annuity of a member
who retires before aee 71 by 10 oercent of the amount of the
applicable state salary. Sections 44.101 and 44.102, title IlOB,
V.T.C.S. See Abraham, The Judicial Retirement Amendment, 29 Tex. B.J.
1005 (1966). We believe that to reinstate the original annuity would
not comply with those intentions of the legislature.
SUMMARY
A retired annuitant of the Judicial Retirement
System who is elected or appointed to a court
included in that system is entitled to the
emoluments of the office to which he is elected or
appointed but is not entitled to also receive a
retirement annuity during the time that he holds
the office. On resuming membership in the
Judicial Retirement System while holding the
office of a justice or judge included in the
system, a person who formerly was a retired
annuitant acquires again all the rights and
obligations of that membership and is entitled to
retire again with his retirement benefits and
options unaffected by his previous retirement.
, :-jz$&&
MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Nancy Sutton
Assistant Attorney General
p. 147
Mr. Clayton T. Garrison - Page 5 (JM-34)
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
David Brooks
Rick Gilpin
Jim Moellinger
Nancy Sutton
p. 148