# TheAttorney GeneralofTexas
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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### A”Equalopportunitvi affirmative Action Employer Honorable Oscar H.Mauzy Chairman Committee onJurisprudence 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 retirementbenefits Dear Senator Mauzy: Youadvise that aperson whowill complete 20continuous years of service asadistrict judge approximately twomonths before the person is 71years of age does not wish to retire prior to becoming 71years old. You have asked whether, in order to be eligible for retirement benefits that include an additional ten percent of the applicable salary, aperson whohas 20years of service credited in thejudicial retirement system mustretire before he is 71years old or my retire at anyage. In our opinion, such aperson 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 dueprocess guarantees. TheTexas Constitution directs the legislature to provide for the retirement and compensation of justices andjudges of the appellate anddistrict courts andto set the benefits of thejudicial retirement system. SeeTex. Const. art. V, §l-a; art. XVI, 967(d). Amemberof 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 ajudge of acourt of the sameclassification as the court onwhich the retiree last served if the member:

(1) is at least 65years old, currently holds ajudicial office, and has at least 10years of service credited in the retirement system, the most recently performed of which was for a continuous period of at least oneyear;

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(2) is at least 65years old andhas 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 20years of service credited in the retirement system, the most recently performed of which was for acontinuous period of at least 10 years, regardless of whether the membercurrently holds ajudicial 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 and44.102, 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 anyprovisions of this Act asamendedwhoretire at or before age seventy (70); (2) those who are not eligible by length of service to retirement benefits at age 70 but whoretire immediately uponbecoming eligible. See Acts 1967, 60th Leg., ch. 415 at 1117. 692 at 1808; Acts 1977, 65th Leg., ch.

Section 44.102(b) nowprovides:

(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 amemberwhoretires: (1) before becoming 71years old; or (2) at any age immediately after becoming eligible to retire under Section 44.101 of this subtitle. This is anon-substantitive recodification.

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"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 70by increasing by ten percent the annuity of a judge who retires before age 71. See Abraham, The Judicial Retirement Amendment, 29Tex. B.J. 1005 (1966). However,: is apparent from the words of the Judicial Retirement Act that the legislature also intends that ajudge whois not eligible for judicial retirement benefits at age 70, mayretire at anyage 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 mayretire 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. Weturn to the question of whether the statutory lawcodified in 544.102(b) violates the equal protection or dueprocess guarantees of the state andfederal constitutions. Article I, section 19, of the Texas Constitution, reads as follo"s: Nocitizen of this State shall be deprived of

life, liberty, property, privileges or immunities, or in anymanner disfranchised, except by the due course of the lawof the land. The 5th and 14th amendments to the United States Constitution read, in part, as follows, respectively:

Noperson shall.

. .bedeprived of life, liberty, or property, without dueprocess of law; nor shall private property be taken for public use, without just compensation. U.S. Const. amend. 5.

NoState shall makeor enforce any lawwhich shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive anyperson of life, liberty, or property, without due process of law; nor deny to anyperson within its jurisdiction the equal protection of the laws.

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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 70is rationally related to the furthering of several legitimate state objectives, does not violate equal protection, anddoes not deprive aperson 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 Malmedv. Thornburgh, 621F.2d 565, (3rd Cir. 1980); Trafelet v. Thompson, 594F.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, 215P.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 andcompensate voluntary retirement of state judges at age 70. Further, webelieve that aperson whovoluntarily chooses to continue serving asajudge past age 70instead of choosing to retire andreceive 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 andis 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 Ajudge whohas 20years 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 thejudge retires prior tobecoming 71years old. Section 44.102(b) does not violate the equal protection anddueprocess guarantees of the state andfederal constitutions.

JIM MATTOX Attorney General of Texas

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TOMGREEN First Assistant Attorney General DAVIDR. RICHARDS Executive Assistant Attorney General Prepared byNancySutton Assistant Attorney General APPROVED: OPINIONCOMMITTEE Rick Gilpin, Acting Chairman David Brooks Colin Carl JimMoellinger Nancy Sutton

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