The Attorney General of Texas 

August 9, 1983 

JIM MATTOX 

Attorney General 

Supreme Court Building 

P. 0. Box 12546 

Austin. TX. 76711. 2548 

5121475~2501 

Telex 9101674.1367 

Telecopier 5121475-0266 

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Dallas. TX. 75201.4709 

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E, Paso. TX. 79905.2793 

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muston, TX, 77002.6966 

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Lubbock. TX. 79401-3479 

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mA,,en, TX. 76501-1665 

5121682.4547 

200 Main Plaza. Suite 400 

San Antonio, TX. 76205-2797 

5121225-4191 

A” Equal opportunitvi 

affirmative Action Employer 

Honorable Oscar H. Mauzy 

Chairman 

Committee on Jurisprudence 

Texas State Senate 

P. 0. Box 12068, Capitol Station 

Austin, Texas 78711 

opinion No. m-54 

Re: Constr”ction of section 

44.102(b) (2) of Title IlOB 

relating to judicial retirement benefits 

Dear Senator Mauzy: 

You advise that a person who will complete 20 continuous years of 

service as a district judge approximately two months before the person 

is 71 years of age does not wish to retire prior to becoming 71 years 

old. You have asked whether, in order to be eligible for retirement 

benefits that include an additional ten percent of the applicable 

salary, a person who has 20 years of service credited in the judicial 

retirement system must retire before he is 71 years old or my retire 

at any age. 

In our opinion, such a person is eligible for the ten percent 

increase in his annuity under the judicial retirement system only if 

he retires prior to age 71. YOU also inquire about the 

constitutionality of that provision under the due process and equal 

protection clauses of the United States and Texas Constitutions. We 

believe that the provision does not violate the equal protection or 

due process guarantees. 

The Texas Constitution directs the legislature to provide for the 

retirement and compensation of justices and judges of the appellate 

and district courts and to set the benefits of the judicial retirement 

system. See Tex. Const. art. V, §l-a; art. XVI, 967(d). A member of 

the judicial retirement system is eligible to retire and receive a 

base service retirement annuity equal to 50 percent of the state 

salary being paid a judge of a court of the same classification as the 

court on which the retiree last served if the member: 

(1) is at least 65 years old, currently holds 

a judicial office, and has at least 10 years of 

service credited in the retirement system, the 

most recently performed of which was for a 

continuous period of at least one year; 

p. 224 
Honorable Oscar H. Mauzy - Page 2 (JM-54) 

(2) is at least 65 years old and has at least 

12 years of service, continuous or otherwise, 

credited in the retirement system, regardless of 

whether the member currently holds a judicial 

office; or 

(3) has at least 20 years of service credited 

in the retirement system, the most recently 

performed of which was for a continuous period of 

at least 10 years, regardless of whether the 

member currently holds a judicial office. 

V.T.C.S. title llOB, §44.101(a). See V.T.C.S. 944.102(a). 

Section 2(a) of article 6228b. V.T.C.S., which has been codified 

in sections 44.101 and 44.102, title llOB, provided, in part, that if 

a member of the judicial retirement system has not been out of 

judicial office for more than one year at the time he applies for 

retirement benefits, 

Ialn additional ten percent (10%) of the 

applicable salary shall be added to the base 

retirement payments to the following judges: (1) 

those eligible for retirement under any provisions 

of this Act as amended who retire at or before age 

seventy (70); (2) those who are not eligible by 

length of service to retirement benefits at age 70 

but who retire immediately upon becoming eligible. 

See Acts 1967, 60th Leg., ch. 

415 at 1117. 

692 at 1808; Acts 1977, 65th Leg., ch. 

Section 44.102(b) now provides: 

(b) Except as provided by Subsection (c) of 

this section, the retirement system shall increase 

by 10 percent of the amount of the applicable 

state salary under Subsection (a) or (d) of this 

section, the annuity of a member who retires: 

(1) before becoming 71 years old; or 

(2) at any age immediately after becoming 

eligible to retire under Section 44.101 of this 

subtitle. 

This is a non-substantitive recodification. 

p. 225 
Honorable Oscar H. Mauzy - Page 3 (JM-54) 

"A fundamental rule in the construction of statutes is to 

ascertain and give effect to the intent of the Legislature." Jesse* 

Associates, Inc. v. Bullock, 531 S.W.2d 593, 599 (Tex. 1975). We 

believe the legislature clearly intends to encourage judicial 

retirement at not later than age 70 by increasing by ten percent the 

annuity of a judge who retires before age 71. See Abraham, The 

Judicial Retirement Amendment, 29 Tex. B.J. 1005 (1966). However,: 

is apparent from the words of the Judicial Retirement Act that the 

legislature also intends that a judge who is not eligible for judicial 

retirement benefits at age 70, may retire at any age and receive the 

ten percent increased annuity, if he retires immediately after 

becoming eligible. See Attorney General Opinion H-537 (1975). Since 

the person in question may retire before age 71 and receive a base 

service retirement annuity under each category of eligibility 

specified in section 44.101(a), title 1lOB. we believe the plain 

language of the statutory law codified as section 44.102(b), title 

1lOB. requires that person to retire before becoming 71 years old in 

order to qualify for the additional annuity authorized by the latter 

section. 

We turn to the question of whether the statutory law codified in 

544.102(b) violates the equal protection or due process guarantees of 

the state and federal constitutions. 

Article I, section 19, of the Texas Constitution, reads as 

follo"s: 

No citizen of this State shall be deprived of 

life, liberty, property, privileges or immunities, 

or in any manner disfranchised, except by the due 

course of the law of the land. 

The 5th and 14th amendments to the United States Constitution 

read, in part, as follows, respectively: 

No person shall. . . be deprived of life, liberty, 

or property, without due process of law; nor shall 

private property be taken for public use, without 

just compensation. 

U.S. Const. amend. 5. 

No State shall make or enforce any law which shall 

abridge the privileges or immunities of citizens 

of the United States; nor shall any State deprive 

any person of life, liberty, or property, without 

due process of law; nor deny to any person within 

its jurisdiction the equal protection of the laws. 

p. 226 
Honorable Oscar H. Mauzy - Page 4 (JM-54) 

U.S. Const. amend. 14, §l. 

The facts before us do not raise a question of the 

constitutionality of mandatory retirement. However, several federal 

courts and state courts in other jurisdictions have held that 

mandatory retirement of state judges at age 70 is rationally related 

to the furthering of several legitimate state objectives, does not 

violate equal protection, and does not deprive a person of "liberty," 

"property," or any due process rights. Age is not a suspect 

classification for equal protection purposes and does not require 

strict judicial scrutiny. The interest of officials in public 

employment is not a fundamental interest. See Malmed v. Thornburgh, 

621 F.2d 565, (3rd Cir. 1980); Trafelet v. Thompson, 594 F.2d 623 (7th 

Cir. 1979); Rubino v. Ghezzi, 512 F.2d 431 (2nd Cir. 1975); O'Neil v. 

Balm, 568 S.W.2d 761 (MO. 1978); Aronstam v. Cashman, 325 A.2d 361 

wt. 1974); Nelson v. Miller, 480 P.2d 467 (Utah 1971); Boughton v. 

Price, 215 P.2d 286 (Idaho 1950). 

By analogy, we conclude that the principles which uphold the 

constitutionality of provisions that mandate involuntary retirement of 

state judges at age 70 also would support the constitutionality of 

provisions that encoutage and compensate voluntary retirement of state 

judges at age 70. Further, we believe that a person who voluntarily 

chooses to continue serving as a judge past age 70 instead of choosing 

to retire and receive the added annuity as compensation for retiring 

at age 70 does not earn or acquire the right to receive the ten 

percent additional retirement annuity and is not thereby deprived of a 

right without due process of law. Under section 44.102(b), judges 

similarly situated are given the same treatment. Accordingly, we 

believe that section 44.102(b) is not unconstitutional. 

SUMMARY 

A judge who has 20 years of service credited in 

the judicial retirement system before he is 71 

years of age is eligible for the ten percent 

additional retirement annuity authorized by 

section 44.102(b), title llOB, V.T.C.S., only if 

the judge retires prior to becoming 71 years old. 

Section 44.102(b) does not violate the equal 

protection and due process guarantees of the state 

and federal constitutions. 

JIM MATTOX 

Attorney General of Texas 

p. 227 
Honorable Oscar H. Mauzy - Page 5 (JM-54) 

TOM GREEN 

First Assistant Attorney General 

DAVID R. RICHARDS 

Executive Assistant Attorney General 

Prepared by Nancy Sutton 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Rick Gilpin, Acting Chairman 

David Brooks 

Colin Carl 

Jim Moellinger 

Nancy Sutton 

p. 228