# The Attorney General of Texas

December 31, 1982 MARK WHITE Attorney General

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An Equal Opportunity/ Affirmative Action Employer Mr. Maurice S. Pipkin ExecutiveDirector OpinionNo. ~~-586
StateCommissionon JudicialConduct Re: Whether former district P. 0. Box 12265,Capitol Station judge serving on judicial Austin,Texas 78711 assignment may practice law between assignments
DearMr. Pipkin:
Your question concerns the following portion of section 5a of article 200a,V.T.C.S.:

all former district judges who were elected at a general electionor appointedby the governor;who have not been defeated for reelection; who have not been removed from office by impeachment, the Supreme Court, the governor upon address of the legislature, the State Judicial Qualifications Com!sission,

or by the legislature'sabolishmentof the iudae's court:who are not more than 70 years of age;-and who certify to the presiding judge a willingness to serve and to complywith the same prohibitions relating to the practice of law that are imposed on a retired judge by Section 7, Article 6228(b)... may be assigned under the provisions of this Act by the presiding judge of the administrative judicial districtwherein such assigned judge resides.... (Emphasisadded).
In this statute, the legislaturehas said that in order to be eligible for the privilege of receiving temporary judicial assignments, former district judges must agree to subject themselves to certain restrictions. The nature of those restrictionsis the subjectof your opinion request. Article 6228b, V.T.C.S., which is improperly cited as "Article 6228(b)" in article 200a,was repealed in 1981. Acts 1981, 67th Leg., ch. 453, §3(4),at 2063. Its provisions are now contained in section 41.001 et seq. of Title llOB,PublicRetirementSystems,V.T.C.S. The "prohibitionsrelating to the practice of law" to which article 200a

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refers may now be found in sec~tion44.005 of Title 1lOB. Section 44.005 states:

A retiree receiving an annuity from the retirement system may not appear and plead as an attorney in any court in this state.
You advise that a question has arisen concerning the applicability of this prohibition to a particular former district judge. You inquire as to the "duration of the prohibition against practicing law on formerdistrict judges." Several arguments concerning the applicabilityof section 44.005 to formerdistrict judgeswho have made the article 200a certification have been presented to us. The first is that the section 44.005 prohibition is not applicable to said former district judges unless they are receiving retirement benefits from the judicial retirement system. We disagree. A formerdistrict judgewho receivesretirement benefits from the judicial retirement system is, in our opinion, a "retiree" within the meaning of section 44.005. See Title llOB, section41.001 (definitionof "retiree"). As a "retiree" 3 said former district judge is automatically subject to section 44.005. Manifestly, the legislaturecould not have intended to require former district judges to certify their willingness to comply with a prohibitionto which they are already necessarily subject. Moreover, to conclude that section 44.005 applies to former district judgeswho have made the article 200a certificationonly if they are receiving retirement benefits from the judicial retirement system would be to render the certification meaningless from the standpoint of former district judges who are not receiving these benefits. There are no "prohibitions relating to the practice of law" within the meaning of article 200a other than the one imposedby section44.005.
It has also been suggested that a former district judge who has made the article 200~3certification is not subject to the section 44.005 prohibition when he is not actually serving on a judicial assignment. Again, we disagree. It is quite clear from the language of article 200a that the section44.005prohibitionremainsapplicable as longas a formerdistrict judge's certificationis extant. Finally, questions have arisen concerning the duration of an article 200a certification. Article 200a is silenton the questionof whether a certificationmay be withdrawn. It also fails to indicate whether, if a former district judge decertifies, he may later recertify. We next dealwith these issues.
In our opinion, a former district judge may withdraw a certificationmade under article 200a. The statute itself does not suggest otherwise. Moreover, if a former district judge is no longer

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willing or able to meet the requirements stated therein, decertification would seem to be mandatory. If he decertifies, a former district judge who is not otherwise a "retiree" is, in our opinion,no longerbound by the section44.005prohibition.
We also conclude that a former district judge who withdraws an article 200~1certificationmay later recertify. Again, the statute does not suggest otherwise. Although it might be argued that an individual could abuse the statutes by certifying, decertifying, recertifying, etc., in order to be able to accept temporary judicial assignments and then appear and plead in court in between such assignments,we find no remedy in the statute. We perceive no basis for reading into article 200a, which is absolutely silent on this matter, limitationsupon the durationof a certificationor thenumber of times thata formerdistrict judgemay decertifyand recertify. It should be emphasized,however, that the chief justice of the supreme court and thepresiding judges of the court of criminalappealsand of the various administrative judicial districts are responsible for making temporary judicial assignments. Nothing requires these judges to tender temporary judicial assignments to a former district judge simplybecausehe has certifiedhiswillingness to accept them.
We therefore conclude that if they have made the article 200a certification, former district judges are subject to the section 44.005 prohibition. They are also subject to the prohibitionas long as their certification is extant. We finally conclude that there is no statutory prohibition that would preclude a former district judge who has withdrawn an article 200a certification from later recertifying.
SUMMARY

To be eligible for assignment under article 200a, V.T.C.S., a former district judge must certifyhis willingness to accept theprohibitions relating to the practice of law that are imposed upon retired judges by section 44.005 of Title 1lOB. Public Retirement Systems, V.T.C.S. The prohibition is applicable as long as a judge's article 200s~certification is extant. Finally a formerdistrict judgemaywithdraw an article 200a certificationand later recertify.

-MARK WHITE AttorneyGeneralof Texas

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JOHNW. FAINTER,JR. FirstAssistantAttorneyGeneral
RICHARD E. GRAY III ExecutiveAssistantAttorneyGeneral Preparedby Jon Bible AssistantAttorneyGeneral
APPROVED: OPINION COMMITTEE
SusanL. Garrison,Chairman Jon Bible Rick Gilpin JimMoellinger . . _

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