The Attorney General of Texas 

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 

Box 12357, Capitol Station 

Austin, Texas 78711 

Opinion ‘No. Ii- 114 9 

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 so long as he is not more than 70 years of age and has not been defeated 

for reelection or removed from office. The amendment declares that such an 

individual, during the period of his assignment as a special judge, shall be paid 

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” of a former 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. We are therefore obliged to apply 

the requirements of article 6228b to this class of persons without the benefit 

of legislative guidance. 

You first ask whether a’ erson on assignment may retire from %gular 

active service” under section 2 i a) 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: 

p. 4664 
Honorable Joseph N. Murphy - Page 2 (H-1149) 

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 who has 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 a court 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 of Texas 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 who retire at or before age seventy 

(70); and (2) those who are not eligible by length~of service 

to retirement benefits at age 70 but who retire immediately 

upon becoming eligible. However, the additional ten percent 

(10%) benefit shall not be paid to any judge who has been out 

of office for a period 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 is entitled to the additional ten percent 

(10%) provided in this section. Any judge drawing retirement 

at the effective date of this Act shall receive the same 

retirement pay as judges of the same classification who have 

retired on the current pay scale; that said judge shall be 

entitled to any raises based upon increases in current 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 who has 12 years 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 65 with 10 years total service, provided that “his last 

P. 4665 
. L 

Honorable Joseph N. Murphy - Page 3 (H-1149) 

service prior to retirement Ihas been] continuous for a period of not 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 10 percent benefit for judges who 

retire by the age of 70 or as soon thereafter as they become eligible to do so. The 

statute provides that, under most circumstances, the additional benefit is not 

available to “any judge who has been out of office for a period of longer 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 an assignment “shall continue as a judicial officer,” as does a retired judge 

under sections 7 and IA of article 6228b. Furthermore, in Werlein v. Calvert, 460 

S.W.2d.398 (Tex. 1970), the Supreme Court held that, a retired judge 

is authorized to exercise the powers of an office while 

serving on assignment. He does not by virtue of the 

assignment, however, hold an office . . . . 

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 by section 2(a). 

Your next question is whether a person 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 such judge, 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. 

Any judge 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 of the Supreme Court of Texas is hereby vested with 

p. 4666 
Honorable Joseph N. Murphy - Page 4 (H-1149) 

the authority to appoint a licensed 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 such benefits. 

Thii provision is applicable when a judge 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 3 does not apply. 

You also ask whether a judge on assignment may qualify for retirement 

benefits under that portion of section 4 which states: 

Any person who has served on one (l) or more Courts of this 

State as defined 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 a period 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 10 years. 

However, he must remain on assignment for a continuous 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 a judge who accepts a special assignment should pay in 

retirement contributions an amount equal to six percent of the monthly judicial 

salary, or six percent of the 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 of his 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), we construed 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 

8A of article 62288 to require that the 6 percent contribution of state employees 

should be applied only to that portion of their salary actually paid. In our 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, 

p. 4667. 
. 

Honorable Joseph N. Murphy - Page 5 (H-1149) 

therefore, that such an individual should contribute an amount equal to 6 percent of 

the salary he is actually paid. 

Your final question is whether a former district judge with more than 10 but 

leas than 12 years creditable service is eligiile for the death benefit plan under 

section 2(a-1) of article 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 and designate a nominee to receive a reduced 

monthly annuity either for life, or for a ten (10) year guaranteed 

period, to become effective and payable, in lieu 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 of Trustees. The reduced benefits shall be computed 

in the same manner as for a member’s service retirement as 

provided elsewhere in this 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. The plan 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 a reduced annuity in the same manner as that provided for 

members retiring on a service 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, S 5. In our opinion, a judge is a “contributing member” 

if, during a particular 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, we believe that the death benefit plan is available to R judge who has 

served on special assignment during the month of his 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. 

p. 4668 
Honorable Joseph N. Murphy - Page 6 (H-1149) 

A judge on special assignment does not qualify for a 

disability benefit under article 6228b, section 3 if the 

disability occurs while he is serving on special assignment. 

A judge 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 a judge who serves on special assignment during 

the month of his death and who otherwise qualifies 

APPROVED: 

Opinion Committee 

jst 

p. 4669