# The Attorney General ofTexas
April 3, 1978

JOHN L. HILL. Attorney General

um aroedmy, sun* 312 L”baock,TX.76401 3aw47-6336

4313 N.Tsn,h. sunr P McAl*n. TX.73301 6ww2-4347 Honorable Joseph N.Murphy Executive Director Employees Retirement System of Texas Box12357,Capitol Station Austin, Texas 78711 Opinion ‘No.Ii- 1149

Re: Administration of Judicial Retirement.

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 solong ashe isnot more than 70years ofage and has not been defeated for reelection orremoved from office. The amendment declares that such an individual, during the period ofhis assignment asaspecial judge, shall bepaid

the same amount of compensation, salary, and expenses that the regular judge is entitled to receive from the county and from the state for such services.

Section 5a. In Attorney General Opinion H-1021(19771,we held that the

“compensation” ofaformer 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. Weare therefore obliged to apply the requirements of article 6228b to this class ofpersons without the benefit oflegislative guidance.

You first ask whether a’ erson on assignment may retire from %gular active service” under section 2ia)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:

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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 whohas 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 acourt 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 ofTexas 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 whoretire at orbefore age seventy (70); and (2) those who are not eligible by length~of service to retirement benefits at age 70but whoretire immediately uponbecoming eligible. However, the additional ten percent (10%)benefit shall not bepaid to anyjudge whohasbeen out ofoffice for aperiod 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 notwithstanding, 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 administrative judicial district isentitled to the additional ten percent (10%)provided in this section. Anyjudge drawing retirement at the effective date of this Act shall receive the same retirement pay asjudges ofthe same classification whohave retired on the current pay scale; that said judge shall be entitled to any raises based upon increases incurrent 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 whohas 12years 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 65with 10years total service, provided that “his last

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service prior to retirement Ihas been] continuous for aperiod ofnot 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 10percent benefit for judges who retire by the age of70or as soon thereafter as they become eligible to do so. The statute provides that, under most circumstances, the additional benefit is not available to “anyjudge whohasbeen out ofoffice for aperiod oflonger 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 anassignment “shall continue as ajudicial officer,” as does aretired judge under sections 7and IA of article 6228b. Furthermore, in Werlein v. Calvert, 460 S.W.2d.398 (Tex. 1970),the Supreme Court held that, aretired judge

is authorized to exercise the powers of an office while serving on assignment. He does not by virtue of the assignment, however, hold anoffice

. .. . 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 bysection 2(a).

Your next question iswhether aperson 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 suchjudge, 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. Anyjudge 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 ofthe Supreme Court ofTexas ishereby vested with

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the authority to appoint alicensed 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 suchbenefits.

Thii provision is applicable when ajudge 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 3does not apply.

You also ask whether a judge on assignment may qualify for retirement benefits under that portion ofsection 4which states:

Any person whohas served on one (l)or more Courts of this State asdefined 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 aperiod 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 10years. However, he must remain on assignment for acontinuous 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 ajudge whoaccepts a special assignment should pay in retirement contributions an amount equal to six percent of the monthly judicial salary, or sixpercent ofthe 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 ofhis 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),weconstrued 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 8Aof article 62288 to require that the 6percent contribution of state employees should be applied only to that portion of their salary actually paid. Inour 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,

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therefore, that such anindividual should contribute an amount equal to 6percent of the salary he is actually paid.

Your final question is whether a former district judge with more than 10but leas than 12years creditable service is eligiile for the death benefit plan under section 2(a-1)ofarticle 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 anddesignate anominee to receive a reduced monthly annuity either for life, or for a ten (10)year guaranteed period, to become effective and payable, inlieu 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, contributions shaR be refunded to the designated beneficiary. Application for such plan shall be on forms prescribed by the State Board ofTrustees. Thereduced benefits shall be computed in the same manner as for a member’s service retirement as provided elsewhere inthis 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. Theplan selected shall become null and void upon the effective date of the member’s retirement, 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 areduced annuity inthe same manner as that provided for members retiring onaservice 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, S5. Inour opinion, ajudge is a “contributing member” if, during aparticular 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, webelieve that the death benefit plan is available to Rjudge whohas served on special assignment during the month ofhis 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.

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A judge on special assignment does not qualify for a disability benefit under article 6228b, section 3 if the disability occurs while heis serving on special assignment.

Ajudge 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 ajudge whoserves on special assignment during the month ofhis death and whootherwise qualifies

APPROVED:

Opinion Committee jst

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