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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 followingquestions:

"1. Does a judge eligible for service retirementwho 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 retirementoptions

"c. the date he is to be removed from'the' judicialpayroll to be placed the followingday on the retirementpayroll

“2. If an eligible judgemakes application for disability retirementas of a certain date, is that the **date** upon which he is to be removed from the active payroll and thereafterplaced upon the disability retirementpayroll, even if no successorhas qualified?

"3

. Does the **office** of a judge'who ia legally removed for cawe become vacant,at'that time even if no successorhas qualified7
"4. **Does** the Constitutionalprovision for automaticvacancy of judicial office at age 75 (exceptionsnote81 affeot the eligibility of retired judges over 75year8 of age to continue as judicial officers subject to temporary assignment?"

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

Section l-a of ArticleV of the Constitution of Texasprovides:

"The office~ofeverysuch~Justice and Judge shall become vacant when the incumbent reaches-the'ageof seventy-five (75)years or such earlierpage,

### not less than seventy (70) years,'as the Legisfaturemay prescribe; but, in the Casey

of'anincumbent whose term of office includesthe,effective date of this Amendment, thisprovision shall not prevent him from servings the remainder of said term 

### norbe 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 shallbe 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 (121years, 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 retirementpay under this Act. Any person retiring in accordancewith thisAct 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 retirementpayment equal to fiftypercent (50%)of the salarybeing 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 shallbe added to the base retirementpayments to the following judges: (1)those eligible for retirement under any provisions of thisAct as amendedwho retire at or before age seventy (70); (2)thosewho are not

-3001-Hon. Gordon Ii. Lloyd, Page 3 (M-627)

eligible by length of service to retirement benefits at age 70but who retire immediately upon becoming eligible; and (3)those in office on September 1, 1967,who then are or during their current term of officewill 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'notbe 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 retirementbenefits under this Act. -Y Wge drawing retirementat the effective date of this Act-shall receive the same retirementpay as judges of the same classificationwho have retired on the currentpay scale; that said judge shall be entitled to any raisesbased upon increases in current salary." Seotion 3 of Article 6228b,Vernon's Civil Statutes, reads as follows:

"If a judgehas 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 longerperform his regular judicial duties~

as~,such.judge,

he shall be retired from regular active service, irrespectiveof his age, and shall be entitled to retirementpay during the remainder of his lifetimeor during the period of such disability, under the same conditions and limitationsas provided in Section 2 of this Act. "Any judge comingwithin the purview of this Statute who shall apply for retirementby reason of physical incapacity shall filewith the Supreme Court of Texaswritten reportsby two (2)licensedphysicians of the State of Texas fully reporting the claimedphysical incapacity; and the Chief Justice of the Supreme Court of Texas is hereby vested with the authority to appoint a licensedphysician of the State of Texas to make any additionalmedioal 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 expressprovisions 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 retirementhas the constitutionalright 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 retiringwho is eligible for retirement if he desires to avail himself of the provisions of Section l-a of Article V of the Constitutionof Texas and the provisions of Article 6228b,Vernon's Civil Statutes (Judicial RetirementAct).

Section 17 of Article XVI **of** the Constitutionof Texas provides that "allofficers of this State shall continue to perform the duties **of** their offices until their successors shall be duly qualified." This provision,which has been construedby the courts asmandatory, continues an officer in office followinghis resignationuntil his successorhas 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 fficermay divest himself of an office before his successor Eas qualified by himself qualifying for and entering upon the duties of another officewhich he cannot lawfullyhold at the, same time. Peden v. Valentine, 198 S.W. 1006 (Tex.Civ.App. 1917, 

### errorref.); 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-aof Article V of the Constitution of Texas is mandatory and when applicable the office of justiceor 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 retirementwho 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 judicialpayroll to be placed on the followingday on the retirementpayroll.

2. If an eligible judgemakes an application **for** disability retirement as of a certain date, such date is the date upon which he is removed from the judicialpayroll and is

-3003-Hon. Gordon II. Lloyd, Page 5 (M-627)

thereafterplaced upon the disability retirementpayroll, even if no successorhas qualified.

3. If a judge is legally removed 

### fromoffice **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~retiredunder the.,provisions of the Judicial Retirement~Actmay elect to continue as a judicial officer and be ~subject,to assignmentby the Chief Justice of the Supreme Court. ~Thisprovision is authorieed under Section l-a of Article V of the Constitutionwhich has the followinghistory of amendments and limitations:

Section l-awas added to Section 1 in November, 1948, by amendment, in the followingwords:

"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 reassignmentto active duty where andwhen needed." Section l-a of Article V has been~subsequentlyamended in 1965 and now reads, in pertinentpart, as follows:

"(1) Subject to the furtherprovisions of this Section, the legislatureshall 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 Legislaturemay prescribe...." (Emphasisadded.)
The history of Section l-a of Article V, as **amended,** clearly shows that the intent of the amendmentwas to subject the action **of** the Legislature to the mandatory provision of Seation l-awhich 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'theLegislature soms discretion~to set an earlier age, not less~thanseventy (70), forthe~same purpose. (Emphasisadded). The underscored phrase~refersback to the last antecedentpreceding it. This is "and'for their reassignmentto active duty when andwhere needed:" However, from a reading of the constitutionalprovision it is crystal clear that it also refersback to those Justices'andJudges 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 thisprovision refers to all of those aotive:.judges

and to all those retired Judges assigned to active duty aftertheir retirement.

The language of this constitutiQnaIlprovisionmust 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.controllingrule is '. set out in 12 Texas.Jurisprudence2d 369,:ConstitutionalLaw, Section 24, as follows:

"A constitutionalprovision is;toc:be;~construed with a view of understanding the intention of the voters, and their purpose should be ascertainedand followed. Although,the intention of:the:framers .isof some ,inportance,the real ques,taonz'ir what did the-people intend by~adopting a Constitutionframed in language submitted to them? It is:.,presumed that the languagewrittenwas carefully selerrted andmade tb express thewill,Qf the people.'"
**House** Joint ResQlUtiOnNumber 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 constitutionalamendment in its caption,which states, in part, "

...requiringautomatic 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 ConstitutionalAmendment be submitted to the voters in-the following framed language, in part:
"For the ConstitutionalAmendment providing for the automatic retirement of District and Appellate Judges for old age,..." (Emphasisadded.)

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

"Against the ConrtitutionalAmendment providing for the automatic retirement of District and Appellate Judges for old g a e,...I, (Emphasisadded.)
From the above showing, the intent appears clear that judges over seventy-fiveare disqualified to serve. Constitutionalprovisions are regarded as mandatory. 12 Tex. Jur.Zd 361, ConstitutionalLaw, Sec. 13. Furthermore, under these circumstances,we cannot regardArticle 6628b, Section 7, Vernon's Civil Statutes, as having any effect whatever upon judges over seventy-fiveyears of age. That statutemerely provides,that any person who is retired under the provisions **of** the Judicial RetirementAct may elect to continue as a judicial officer and be subject to assignmentby 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, ConstitutionalLaw, Sec. 30.

Any judicial appointmentor assignment aonrrtitutee "holdingoffice" under Section l-a **of** Article V, Constitution of Texasi It follows that retired Justices and Judges, **upon** reaching the age of seventy-fiveyears of age, are not eligible to con&ye to serve as a judiaial officer subject to temporary ae8fgnment.
SUMMARY ------- Judges eligible for retirementpursuant to the provisions of Section l-a of Article V of the Constitution of Texas and the Judicial Retirement Act enacted pursuant theretomay retirewhen eligible on the date they choose and thereby create a vacancy in the office previouslyheld. 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 SamL. 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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