The Attorney General of Texas 

December 31, 1982 

MARK WHITE 

Attorney General 

Supreme Court Building 

P. 0. BOX 12546 

Austin. TX. 76711. 2546 

512/475-2501 

T&x 9101874.1367 

Telecopier 5121475-0266 

1607 Main St., Suite 1400 

Dallas, TX. 75201.4709 

2141742-6944 

4624 Alberta Ave.. Suite 160 

El Paso, TX. 79905-2793 

9151533.3464 

1220 Dallas Ave., Suite 202 

Houston. TX. 77002-6986 

713/650-0666 

806 Broadway, Suite 312 

Lubbock. TX. 79401.3479 

806/747-5238 

4309 N. Tenth, Suite I3 

McAlle”. TX. 76501-1685 

5121662.4547 

200 Main Plaza. Suite 400 

San Antonio, TX. 76205-2797 

5121225-4191 

An Equal Opportunity/ 

Affirmative Action Employer 

Mr. Maurice S. Pipkin 

Executive Director 

Opinion No. ~~-586 

State Commission on Judicial Conduct Re: Whether former district 

P. 0. Box 12265, Capitol Station judge serving on judicial 

Austin, Texas 78711 assignment may practice law 

between assignments 

Dear Mr. 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 election or appointed by 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's abolishment of 

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 comply with 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 district wherein such 

assigned judge resides.... (Emphasis added). 

In this statute, the legislature has 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 restrictions is the subject of 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6228(b)" in article 200a, was repealed in 1981.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, Public Retirement Systems, V.T.C.S. The 

"prohibitions relating to the practice of law" to which article 200a 

p. 2175 
. - 

Mr. Maurice S. Pipkin - Page 2 (MW-586) 

refers may now be found in sec~tion 44.005 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 former district judges." 

Several arguments concerning the applicability of section 44.005 

to former district judges who 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 former district judge who receives retirement 

benefits from the judicial retirement system is, in our opinion, a 

"retiree" within the meaning of section 44.005. See Title llOB, 

section 41.001 (definition of "retiree"). As a "retiree" 3 said former 

district judge is automatically subject to section 44.005. 

Manifestly, the legislature could not have intended to require former 

district judges to certify their willingness to comply with a 

prohibition to which they are already necessarily subject. Moreover, 

to conclude that section 44.005 applies to former district judges who 

have made the article 200a certification only 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 imposed by section 44.005. 

It has also been suggested that a former district judge who has 

made the article 200~3 certification 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 section 44.005 prohibition remains applicable 

as long as a former district judge's certification is extant. 

Finally, questions have arisen concerning the duration of an 

article 200a certification. Article 200a is silent on the question of 

whether a certification may be withdrawn. It also fails to indicate 

whether, if a former district judge decertifies, he may later 

recertify. We next deal with these issues. 

In our opinion, a former district judge may withdraw a 

certification made under article 200a. The statute itself does not 

suggest otherwise. Moreover, if a former district judge is no longer 

p. 2176 
. . 

Mr. Maurice S. Pipkin - Page 3 (MW-586) 

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 longer bound by the section 44.005 prohibition. 

We also conclude that a former district judge who withdraws an 

article 200~1 certification may 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, limitations upon the duration of a certification or the number 

of times that a former district judge may decertify and recertify. It 

should be emphasized, however, that the chief justice of the supreme 

court and the presiding judges of the court of criminal appeals and 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 

simply because he has certified his willingness 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 prohibition as 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 

certify his willingness to accept the prohibitions 

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 

former district judge may withdraw an article 200a 

certification and later recertify. 

-MARK WHITE 

Attorney General of Texas 

p. 2177 
Mr. Maurice S. Pipkin - Page 4 (MW-586) 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

RICHARD E. GRAY III 

Executive Assistant Attorney General 

Prepared by Jon Bible 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Jon Bible 

Rick Gilpin 

Jim Moellinger 

. . _ 

p. 2178