The Attorney General of Texas
April 19, 1979
MARK WHITE
Attorney General
Honorable Ben Z. Grant, Chairman Opinion No. MN-13
House Judiciary Committee
P. 0. Box 2910 Re: Calculation of compensation
Austin, Texas 78769 for retired judges sitting on
assignment.
Dear Representative Grant:
You have requested our opinion regarding the proper method of
calculating the compensation of a retired judge who is sitting on assignment.
Section 5a of article 200a, V.T.C.S., provides that a retired judge who has
been assigned
shall be paid . . . an amount representing the
difference between all of the retirement benefits of
such judge as a retired district judge and the salary
and compensation from all sources of the judge of the
court wherein he is assigned, and determined pro-rata
for the period of time he actually sits as such
assigned judge.
You indicate that the Judicial Retirement System has construed “pro-rata”
to mean that a retired judge should be compensated at l/265 of the relevant
annual salary for each working day he actually serves. You suggest that,
under this method of computation, the compensation of a retired judge is
only 71 percent of that of a regular judge, and you ask whether such an
interpretation of section 5a is correct.
By letter dated August 30, 1962, the Comptroller of Public Accounts
construed section 5a to require that an assigned judge be compensated on
the basis of l/365 of the regular judge’s annual salary for each day served on
assignment. The Comptroller added, however, that
the days involved necessarily spent in traveling as
well as Saturdays and Sundays involved, while sitting
on the bench under an administrative order of the
presiding judge of the administrative judicial district
wherein such assigned judge resides, are properly
p. 37.
Honorable Ben Z. Grant - Page Two (MW-13)
included as days of active duty, when such days are included in the
administrative order.
Thus, a retired judge whose assignment began on March 1 and continued without
interruption through March 28 would be entitled to receive as his totai compensation an
amount equal to ,28/365 of the proper annual salary. See V.T.C.S. ar.. 6228b. §§ 7, 8b.
This office has previously held that, in determining t’neproper metnod of calculating
compensation, a ruling by the Comptroller “should not be disturbed unless it is clearly
unreasonable.” Attorney General Opinion H-645 (1975). The method set out in the
Comptroller’s letter avoids the problem of authorizing compensation at only ‘71per cent of
the regular salary. There is little practical difference between the Comptroller’s method
of calculating the judge’s -salary and other potential methods. In our opinion, the
Comptroller’s 1962 decision is not clearly unreasonable, and accordingly, it represents an
acceptable method of calculating the compensation of a retired judge serving on
assignment.
You also state .that the Judicial Retirement System has construed section 5a to
require that an assigned judge receive the difference between the full salary of the
regular judge of the court to which he is assigned and the maximum retirement benefits
payable to a retired judge. The statute makes clear, however, that this latter amount
must be calculated on the basis of “all of the retirement benefits 0:‘ such judge as a
retired district judge.” (Emphasis added). Thus, the proper method of calculation is the
difference between the full salary of the regular judge and the sum of all retirement
benefits actually paid to the assigned judge. If the retirement benefits of an assigned
judge begin or change during a period of assignment, the calculation should be made on a
daily basis, and the judge paid for each day of service an amount equal to the difference
between the regular judge’s salary for a particular day and the pro-rata retirement
benefits assignable to that particular day.
SUMMARY
A retired judge who is sitting on assignment is entitled to be
compensated in an amount equal to the difference between the
salary of the regular judge of the court to which he is assigned and
the sum of all the retirement benefits actually paid to the assigned
judge. Compensation may be calculated on the basis of l/365 of the
relevant annual amount for each day included withih the
assignment, including Saturdays and Sundays.
Very truly yours,
MARK WHITE
Attorney Generai of Texas
P.38
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Honorable Ben Z. Grant - Page Three (PIW-13)
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairman
David B. Brooks
Walter Davis
Rick Gilpin
William G Reid
Bruce Youngblood’
p. 39