The Attorney General of Texas
December 31, 1982
MARK WHITE
Attorney General
Mr. Maurice S. Pipkin Opinion No. ~~-586
Supreme Court Building
P. 0. BOX 12546
Executive Director
Austin. TX. 76711. 2546 State Commission on Judicial Conduct Re: Whether former district
512/475-2501 P. 0. Box 12265, Capitol Station judge serving on judicial
T&x 9101874.1367 Austin, Texas 78711 assignment may practice law
Telecopier 5121475-0266 between assignments
1607 Main St., Suite 1400 Dear Mr. Pipkin:
Dallas, TX. 75201.4709
2141742-6944 Your question concerns the following portion of section 5a of
article 200a, V.T.C.S.:
4624 Alberta Ave.. Suite 160
El Paso, TX. 79905-2793 all former district judges who were elected at a
9151533.3464 general election or appointed by the governor; who
have not been defeated for reelection; who have
not been removed from office by impeachment, the
1220 Dallas Ave., Suite 202
Houston. TX. 77002-6986
Supreme Court, the governor upon address of the
713/650-0666 legislature, the State Judicial Qualifications
Com!sission,or by the legislature's abolishment of
the iudae's court: who are not more than 70 years
806 Broadway, Suite 312
of age;-and who certify to the presiding judge a
Lubbock. TX. 79401.3479
806/747-5238
willingness to serve and to comply with the same
prohibitions relating to the practice of law that
are imposed on a retired judge by Section 7,
4309 N. Tenth, Suite I3 Article 6228(b)... may be assigned under the
McAlle”. TX. 76501-1685 provisions of this Act by the presiding judge of
5121662.4547
the administrative judicial district wherein such
assigned judge resides.... (Emphasis added).
200 Main Plaza. Suite 400
San Antonio, TX. 76205-2797 In this statute, the legislature has said that in order to be eligible
5121225-4191
for the privilege of receiving temporary judicial assignments, former
district judges must agree to subject themselves to certain
An Equal Opportunity/ restrictions. The nature of those restrictions is the subject of your
Affirmative Action Employer opinion request.
Article 6228b, V.T.C.S., which is improperly cited as "Article
6228(b)" in article 200a, was repealed in 1981. Acts 1981, 67th Leg.,
ch. 453, §3(4), at 2063. Its provisions are now contained in section
41.001 et seq. of Title llOB, Public Retirement Systems, V.T.C.S. The
"prohibitions relating to the practice of law" to which article 200a
p. 2175
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Mr. Maurice S. Pipkin - Page 2 (MW-586)
refers may now be found in sec~tion 44.005 of Title 1lOB. Section
44.005 states:
A retiree receiving an annuity from the
retirement system may not appear and plead as an
attorney in any court in this state.
You advise that a question has arisen concerning the
applicability of this prohibition to a particular former district
judge. You inquire as to the "duration of the prohibition against
practicing law on former district judges."
Several arguments concerning the applicability of section 44.005
to former district judges who have made the article 200a certification
have been presented to us. The first is that the section 44.005
prohibition is not applicable to said former district judges unless
they are receiving retirement benefits from the judicial retirement
system. We disagree. A former district judge who receives retirement
benefits from the judicial retirement system is, in our opinion, a
"retiree" within the meaning of section 44.005. See Title llOB,
section 41.001 (definition of "retiree"). As a "retiree"3 said former
district judge is automatically subject to section 44.005.
Manifestly, the legislature could not have intended to require former
district judges to certify their willingness to comply with a
prohibition to which they are already necessarily subject. Moreover,
to conclude that section 44.005 applies to former district judges who
have made the article 200a certification only if they are receiving
retirement benefits from the judicial retirement system would be to
render the certification meaningless from the standpoint of former
district judges who are not receiving these benefits. There are no
"prohibitions relating to the practice of law" within the meaning of
article 200a other than the one imposed by section 44.005.
It has also been suggested that a former district judge who has
made the article 200~3 certification is not subject to the section
44.005 prohibition when he is not actually serving on a judicial
assignment. Again, we disagree. It is quite clear from the language
of article 200a that the section 44.005 prohibition remains applicable
as long as a former district judge's certification is extant.
Finally, questions have arisen concerning the duration of an
article 200a certification. Article 200a is silent on the question of
whether a certification may be withdrawn. It also fails to indicate
whether, if a former district judge decertifies, he may later
recertify. We next deal with these issues.
In our opinion, a former district judge may withdraw a
certification made under article 200a. The statute itself does not
suggest otherwise. Moreover, if a former district judge is no longer
p. 2176
. .
Mr. Maurice S. Pipkin - Page 3 (MW-586)
willing or able to meet the requirements stated therein,
decertification would seem to be mandatory. If he decertifies, a
former district judge who is not otherwise a "retiree" is, in our
opinion, no longer bound by the section 44.005 prohibition.
We also conclude that a former district judge who withdraws an
article 200~1 certification may later recertify. Again, the statute
does not suggest otherwise. Although it might be argued that an
individual could abuse the statutes by certifying, decertifying,
recertifying, etc., in order to be able to accept temporary judicial
assignments and then appear and plead in court in between such
assignments, we find no remedy in the statute. We perceive no basis
for reading into article 200a, which is absolutely silent on this
matter, limitations upon the duration of a certification or the number
of times that a former district judge may decertify and recertify. It
should be emphasized, however, that the chief justice of the supreme
court and the presiding judges of the court of criminal appeals and of
the various administrative judicial districts are responsible for
making temporary judicial assignments. Nothing requires these judges
to tender temporary judicial assignments to a former district judge
simply because he has certified his willingness to accept them.
We therefore conclude that if they have made the article 200a
certification, former district judges are subject to the section
44.005 prohibition. They are also subject to the prohibition as long
as their certification is extant. We finally conclude that there is
no statutory prohibition that would preclude a former district judge
who has withdrawn an article 200a certification from later
recertifying.
SUMMARY
To be eligible for assignment under article
200a, V.T.C.S., a former district judge must
certify his willingness to accept the prohibitions
relating to the practice of law that are imposed
upon retired judges by section 44.005 of Title
1lOB. Public Retirement Systems, V.T.C.S. The
prohibition is applicable as long as a judge's
article 200s~ certification is extant. Finally a
former district judge may withdraw an article 200a
certification and later recertify.
-MARK WHITE
Attorney General of Texas
p. 2177
. . _
Mr. Maurice S. Pipkin - Page 4 (MW-586)
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Jon Bible
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Jim Moellinger
p. 2178