. 1 

Honorable Gordon H. Lloyd 

fji?.h&+ Au-Y 

Opinion NO. M-627 

Executive Secretary 

Employees Retirement System Re: Certain questions' 

Capitol Station relating to judicial 

Austin,' Texas 78711 service retirement 

Dear Mr. Lloyd: 

Your request for an opinion on the above subject 

matter asks the following questions: 

"1. Does a judge eligible for service 

retirement who makes application to re,tire on 

a date of his choosing thereby fix: 

"a. the date the office is vacated 

"b. the date he becomes a retired judge 

eligible to exercise retirement options 

"c. the date he is to be removed from'the' 

judicial payroll to be placed the following day 

on the retirement payroll 

“2. If an eligible judge makes application 

for disability retirement as of a certain date, 

is that the date upon which he is to be removed 

from the active payroll and thereafter placed 

upon the disability retirement payroll, even 

if no successor has qualified? 

" 3 . Does the office of a judge'who ia 

legally removed for cawe become vacant,at'that 

time even if no successor has qualified7 

"4. Does the Constitutional provision for 

automatic vacancy of judicial office at age 75 

(exceptions note81 affeot the eligibility of 

retired judges over 75 year8 of age to continue 

as judicial officers subject to temporary 

assignment?" 

-3ooo- 
, . 

Hon. Gordon H. Lloyd, Page 2 (M-627) 

Section l-a of Article V of the Constitution of 

Texasprovides: 

"The office ~of everysuch~ Justice and 

Judge shall become vacant when the incumbent 

reaches-the'age of seventy-five (75) years or 

such earlier page, not less than seventy (70) 

years,'as the Legisfature may prescribe; but, 

in the Casey of'anincumbent whose term of 

office includesthe,effective date of this 

Amendment, this provision shall not prevent 

him from servings the remainder of said term 

nor be applicable to him before his period 

or periods of judicial service shall have 

reached a total of ten (10) years." 

Subdivision (a) of Section 2 of Article 622Sb, 

Vernon's Civil Statutes, reads as follows: 

"(a) Any judge in this 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 his 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 (121 years, continuously 

or otherwise, regardless of whether be 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: (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 

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Hon. Gordon Ii. Lloyd, Page 3 (M-627) 

eligible by length of service to retirement 

benefits at age 70 but who retire immediately upon 

becoming eligible; and (3) those in office on 

September 1, 1967, who then are or during their 

current term of office will be seventy (70) 

or more years of age and who retire at or before 

the end of their current term of office; 

provided, 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 this Act. -Y Wge 

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." 

Seotion 3 of Article 6228b, Vernon's Civil Statutes, 

reads as follows: 

"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 

this 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 the authority to appoint a 

licensed physician of the State of Texas to make 

any additional medioal investigation they deem 

necessary. Provided, however, that if nuch physical 

disability is caueed or results from the intemperate 

use of alcohol or narcoti,o drugs, such facts shall be 

grounds for denial of such benefits." 

-3002- 
Hon. Gordon Ii. Lloyd, Page 4 (M-627) 

In view of the express provisions of Section l-a 

of Article V~of the Constitution of Texas and Subdivision (a) 

of Section 2 off Article 6228b, it is our opinion that a judge 

who is eligible for retirement has the constitutional right 

to retire. Therefore, the provisions of Section 17 of Article 

XVI of the Constitution of Texas should not be construed so 

as to prevent a judge from retiring who is eligible for 

retirement if he desires to avail himself of the provisions of 

Section l-a of Article V of the Constitution of Texas and the 

provisions of Article 6228b, Vernon's Civil Statutes (Judicial 

Retirement Act). 

Section 17 of Article XVI of the Constitution of 

Texas provides that "all officers of this State shall continue 

to perform the duties of their offices until their successors 

shall be duly qualified." This provision, which has been 

construed by the courts as mandatory, continues an officer 

in office following his resignation until his successor has 

qualified. Jones v. City of Jefferson, 66 Tex. 576, 1 S.W. 

903 (1886); Keen v. Featherston, 69 S.W. 983 (Tex.Civ.App. 

1902, error ref.); Plains Common Consol. School Dist. No. 1 

v. Hayhurst, 122 S.W.Zd 322 (Tex.Civ.App. 1938). However, an 

fficer may divest himself of an office before his successor 

Eas qualified by himself qualifying for and entering upon the 

duties of another office which he cannot lawfully hold at the, 

same time. Peden v. Valentine, 198 S.W. 1006 (Tex.Civ.App. 

1917, error ref.); Pruitt v. Glen Rose Independent School 

District No. 1, 126 Tex. 45, 84 S.W.2d 1004 (1935). 

In Attorney General's Opinion M-151 (19671, it was 

held that Section l-a of Article V of the Constitution of Texas 

is mandatory and when applicable the office of justice or judge 

becomes vacant and the justice or judge does not hold over 

until his successor has qualified. 

Your questions are accordingly answered as follows: 

1. A judge eligible for service retirement who 

makes application to retire on a date of his choosing thereby 

fixes the date the office is vacated, the date he is eligible 

to exercise retirement options and the date he is to be removed 

from the judicial payroll to be placed on the following day 

on the retirement payroll. 

2. If an eligible judge makes an application for 

disability retirement as of a certain date, such date is the 

date upon which he is removed from the judicial payroll and is 

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Hon. Gordon II. Lloyd, Page 5 (M-627) 

thereafter placed upon the disability retirement payroll, 

even if no successor has qualified. 

3. If a judge is legally removed from office for 

cause, such office becomes vacant at that time even if no 

successor has qualified. 

4. Section 7 of Article 622813 provides that any 

person.~who is~retired under the.,provisions of the Judicial Retirement~Act may elect to continue as a judicial officer and be 

~subject,to assignment by the Chief Justice of the Supreme Court. 

~This provision is authorieed under Section l-a of Article V of 

the Constitution which has the following history of amendments 

and limitations: 

Section l-a was added to Section 1 in November, 1948, 

by amendment, in the following words: 

"The Legislature shall provide for the 

retirement and compensation of Judges and 

Commissioners of the Appellate Courts end 

Judges of the District and Criminal District 

Courts on account of length of service, age 

or disability, and for their reassignment to 

active duty where and when needed." 

Section l-a of Article V has been~subsequently amended 

in 1965 and now reads, in pertinent part, as follows: 

"(1) Subject to the further provisions of this 

Section, the legislature shall provide f th 

wt and compensation of Justices anyJudte:of 

the Appellate Courts and District and Criminal District Courts on account of length of serviae, age 

and disability, and for their reassignment to active 

duty where and when needed. The office of every 

such Justice and Judge shall become vacant when the 

‘incumbent reaches the age of seventy-five (75) years 

or such earlier age, not less than seventy (70) years, 

as the Legislature may prescribe...." (Emphasis added.) 

The history of Section l-a of Article V, as amended, 

clearly shows that the intent of the amendment was to subject 

the action of the Legislature to the mandatory provision of 

Seation l-a which says I.... The office of every such Justice 

and Judge shall become vacant when the incumbent reaches the age 

-3004- 
Hon. Gordon Ii. Lloyd, Page 6 (M-627) 

of seventy-five ,(75) years....l and to allow'the Legislature 

soms discretion~to set an earlier age, not less~thanseventy 

(70), forthe~same purpose. (Emphasis added). The underscored 

phrase~refers back to the last antecedent preceding it. This 

is "and'for their reassignment to active duty when and where 

needed:" However, from a reading of the constitutional provision it is crystal clear that it also refers back to those 

Justices'and Judges first referred to in the first sentence 

of~sectionl-a. The next provision is the office "shall 

become vacant when the incumbent reaches the age of seventy-five 

(75) years...” and this provision refers to all of those 

aotive:.judges and to all those retired Judges assigned to 

active duty aftertheir retirement. 

The language of this constitutiQnaIlprovision must be 

Construed as the voters~ at the time of its adoption reasonably 

understood it. Orndorff v. State, 108 S.W.?d~ 206 (Tex.Civ.App. 

.1937, error ref.) In this connection, the.controlling rule is '. 

set out in 12 Texas.Jurisprudence 2d 369,:Constitutional Law, 

Section 24, as follows: 

"A constitutional provision is;toc:be;~construed 

with a view of understanding the intention of the 

voters, and their purpose should be ascertained and 

followed. Although, the intention of:the:framers 

.is of some ,inportance, the real ques,taonz'ir what did 

the-people intend by~adopting a Constitution framed 

in language submitted to them? It is:.,presumed that 

the language writtenwas carefully selerrted and made 

tb express the will,Qf the people.'" 

House Joint ResQlUtiOn Number 57+-:69eh Legislature, 

RegularSession, 1965, (Vol. 1, Gen; & Spec..Laws of The State 

of Texas, pp. 2227-2229) recites the intent and purpose of the 

constitutional amendment in its caption, which states, in part, 

" . ..requiring automatic retirement of certain District and Appellate 

Judges at age seventy-five (75) or such earliiel; age, not under 

seventy (70), as may be provided by law; ,+&.j:! (underscoring 

added.) Section 2 provided that the Constitutional Amendment 

be submitted to the voters in-the following framed language, 

in part: 

"For the Constitutional Amendment providing for 

the automatic retirement of District and Appellate 

Judges for old age,... " (Emphasis added.) 

-3005- 
. I 

non. Gordon H. Lloyd, Page 7 (M-627.) 

"Against the Conrtitutional Amendment 

providing for the automatic retirement of 

District and Appellate Judges for old a g e,... I, 

(Emphasis added.) 

From the above showing, the intent appears clear 

that judges over seventy-five are disqualified to serve. 

Constitutional provisions are regarded as mandatory. 12 Tex. 

Jur.Zd 361, Constitutional Law, Sec. 13. Furthermore, under 

these circumstances, we cannot regard Article 6628b, Section 7, 

Vernon's Civil Statutes, as having any effect whatever upon 

judges over seventy-five years of age. That statute merely 

provides,that any person who is retired under the provisions 

of the Judicial Retirement Act may elect to continue as a judicial 

officer and be subject to assignment by the Chief Justice of the 

Supreme Court. This statute could not validly refer to judges 

over seventy-five. 

It is settled law that u . ..when the constitution speaks, 

either directly or by necessary implication, its voice must 

be heeded: any law antagonistic thereto cannot stand.'.." 12 Tex. 

Jur.2d 374, Constitutional Law, Sec. 30. 

Any judicial appointment or assignment aonrrtitutee 

"holding office" under Section l-a of Article V, Constitution of 

Texasi It follows that retired Justices and Judges, upon 

reaching the age of seventy-five years of age, are not eligible to 

con&ye to serve as a judiaial officer subject to temporary 

ae8fgnment. 

------- SUMMARY 

Judges eligible for retirement pursuant to 

the provisions of Section l-a of Article V of the 

Constitution of Texas and the Judicial Retirement 

Act enacted pursuant thereto may retire when 

eligible on the date they choose and thereby 

create a vacancy in the office previously held. 

A vacancy is also created in the office of a judge 

at the time he is legally removed for cause. 

Retired Justices and Judges, upon reaching the age 

of seventy-five (75) years of e, are not eligible 

to continue as a judicial o r subject to 

temporary assignment. 

General of Texas. 

-3006- 
Hon. GQrdon H. Lloyd, Page 8 (M-627)' 

Prepared by Sam L. Jones, Jr. 

Assistant Attorney General 

APPRQVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Acting Co-Chairman 

J. C. Davis 

Roger Tyler 

Houghton Brownlee 

Bob Flowers 

MEADE F. GRIFFIN 

Staff Legal Assistant '~' 

ALFRED WALKER 

Exectitive Assistant 

NOLA WHITE 

First Assistant 

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