                        October 25, 1967



Honorable Gordon H. Lloyd             Opinion No. M-153
Executive Secretary
Employees Retirement System           Re:   Retirement of judges under
  of Texas                                  the provisions of Section
Austin, Texas 78711                         la of Article V of the
                                            Constitution of Texas.
Dear Mr. Lloyd:

          your request for an opinion reads as follows:

          "The State Employees Retirement System is
     responsible for the general administration and
     proper operation of the Judicial Retirement
     System.   (Article 6228b-8, Vernon's Civil
     Statutes of Texas.) To meet this responsibi-
     lity, we respectfully request your opinion as
     to the proper interpretation of Article XVI,
     Section 17 and Article V, Section l-a, Sub-
     section (1) Constitution of Texas. Article
     V was amended November 2, 1965, and provided
     for the mandatory retirement of Judges upon
     reaching age 75, with exceptions for those
     lacking sufficient service for retirement.
     In this regard we submit the following ques-
     tions:

          “1. What is the effective date of re-
     tirement for a District or Appellate Judge,
     the date selected by the Judge or the date
     his successor qualifies?

          "2 . Must a District or Appellate Judge,
     over the age of 75, and with the required 10
     or more years of Judicial Service, retire be-
     fore the end of his current term, even though
     the 1965 Constitutional Amendment was adopted
     and became effective during his current elec-
     tive term?

          "3. May a District or Appellate Judge
     over the age of 75 at the time the 1965 Con-

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Honorable Gordon H. Lloyd, page 2 (M-153)



     stitutional Amendment was adopted, but with
     'less than 10 years Judicial Service at this
     *,     continue to serve to the end of the
     term in which he completes (not necessarily
     the current term) the required minimum 10
     years of Judicial Service?

          "4 . May a District or Appellate Judge
     under age 75 at this time, but with the re-
     quired 10 or more years of Judicial Service
     at the time of the adoption of the 1965 Consti-
     tutional Amendment, continue to serve beyond we
     75 in order to complete the term for which he was
     elected?

          "(The following questions relate to an in-
     terpretation of Article 6228b-2, Vernon's Civil
     Statutes of Texas as amended by H.B. 570, Sixtieth
     Legislature, Regular Session, 1967.) ~~

          "5 . If your answer to Question 3 is to per-
     mit the Judge to serve beyond his current term
     so as to complete the required 10 years of Judi-
     cial Service, may he upon retirement be awarded
     the additional 10% to his base annuity as pro-
     vided for by Article 6228b-2, Vernon's Civil
     Statutes of Texas?

          “6.  If your answer to Question 4 is to
     permit the Judge to serve out his term, may he
     upon retirement be awarded the additional 10%
     to his base annuity, if he does not reach age
     75 during the current term?

          "Your opinion is necessary on the foregoing
     six questions in order that we may properly ad-
     vise the Members of the Judiciary with regard to
     the 1965 Constitutional Amendment and the 1967
     Amendment to the Judicial Retirement Act. This
     office has not previously made an interpretation
     of the 1965 Constitutional Amendment, and since
     the passage of H.B. 570 referred to above in-
     volves the payment of an additional lo%, it now
     becomes necessary for us to have proper guidance.
           II. . .II

          Section 17 of Article XVI of then Constitution of Texas
provides that "all officers of this State shall continue to

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Honorable Gordon H. Lloyd, page 3 (M-153)



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 the office
following his resignation until the 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.2d
322 (Tex.Civ.App. 1938). However; an officer may divest him-
self of an office before his successor has qualified by him-
self 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).
     The provisions of Section la of Article V', Constitution
of Texas, applicable to your questions, read as follows:

          "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; but,
     in the case of an incumbent whose term of
     office includes the effective date of this
     Amendment, this provision shall not prevent
     him from serving 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."

          It is stated in Attorney General's Opinion M-151:

           "Under the facts submitted in your request,
     the provisions of Section la of Article V above
     quoted did not become applicable to Justice Werlein
     until 'his period or periods of judicial service
     should have reached a total of ten years. The
     term of office that Justice Werlein was serving
     at the time his period of judicial service
     reached a period,of ten-years, did not include
     the effective date of the adoption of Section
     'la of Article V of the Constitution. Under
     the facts submitted in your request Judge Werlein
     qualified as Judge of the 157th District Court of
     Harris County on the 1st day of September, 1957
     and he has continued to serve continuously either
     as Judge of the 157th District Court or as As-
     sociate Justice of the Court of Civil Appeals.
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Honorable Gordon H..Lloyd, page 4 (M-153)



    Therefore, the period of judicial service reached
    a total of ten years on midnight, August 31, 1967.
    As of that date, the provisions of Section la of
    Article V, in our opinion, became applicable to
    Justice Werlein under the facts submitted by you.
    Section la of Article V specifically provides
    under such circumstances 'the office. . . shall
    become vacant. . . .' The provisions of Section
    la of Article V have not been construed by the
    courts of this State. However, we believe that
    the above quoted provisions are mandatory and
    the office of Associate Justice of the Court of
    Civil Appeals previously held by Justice Werlein
    has become vacant and that Justice Werlein does _'
    .not hold over until his successor has qualified.
    We are supported in this view by the fact that
    it has been administratively determined by the
    Chief Justice of the Supreme Court that Justice
    Werlein was eligible for assignment by the Chief
    Justice of the Supreme Court to sit as Judge in
    the 80th District Court of Harris County."

          The facts under consideration in Attorney General's
Opinion M-151 were that Justice Werlein was 75 years of age
when the provisions of Article V, Section-'la of the Constitution
of Texas was adopted; had served the term for which he was elected
at the time Section la of Article V was adopted in November,
1965, and was serving another term to which he was elected after
the adoption of Section la of Article V; and had qualified as
Judge of the 157th District Court on the 1st day of September,
1957, and continued to serve continuously either as Judge of
the 157th District Court or as an Associate Justice of the Court
of Civil Appeals.

          In view of the foregoing your questions are,answered
as follows:

           (1) This question is fully answered in Attorney Gen-
eral's Opinion,M-151 quoted in part hereinabove.       :'
                                            \
           (2) A District or Appellate Judge over the age of
75 and with the required ten or more years of judicial serv-
ice is not required to retire before the end of the elective      I
term in existence at the time Section la of Article V became
effective.

          (3) A District or Appellate Judge over the age of
75 at the time Section la of Article V was adopted, but with
less than ten years of judicial service, may continue to serve
                            -712-
Honorable Gordon~ H.,LlOydi page 5 (M-153)



until he has reached the required minimum of ten years judi-,
cial service, but he may not continue in office past the tenth
anniversary of his judicial service if the term of office in
which he reached such anniversary commenced after Section la
of Article V became effective.

           (4) If such term of office includes the effective
date of Section la of Article V, then a District or Appellate
Judge under the age of 75, but with the required ten years or
more of judicial service at the time of adoption of Section
la of Article V, may continue to serve beyond the age of 75
in order to complete the term for which he was elected.

        ~.,,(5)
              Section 2 of Article 622833, Vernon's Civil Stat-
utes, as amended by House Bill 570,~ Acts of the 60th Legislature,
Regular Session, 1967, Chapter 692, p. 1808, reads,, in part,
as follows:

           "6 . . 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 pro-
     v&ions of this Act as amended who retire at or
     be~fore age seventy (70); (2) those who are not
     ieligible~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%) bene-
      fit 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."
                P
           In, answer to your question No. 5, under the facts
submitted in question No:. 3, the Judge or Justice was not eli-
gible for retirement benefits at age 75. Under the situation
posed in your present question, it is necessary for the Judge
to serve all or part of an additional term in order to complete
his ten years of service. ~Upon completion of such ten years,
he is retired by operation of law. He would then become enti-
tled to receive the additional 10% authorized by Subdivision
a (21, Section 2, Article 6228b, provided he is retired on or
after Sept. 1, 1967, under the provisions of Subdivision b oft
Section '2 of said Article.

          (6) In answer to question No. 6, the facts involved
                             -713-
Honorable Gordon H. Lloyd; page 6 (M-153)



are that the Judge is under age 75 but has completed ten years
of service. He continues to serves out his term which began
before the effective date of Section la of Article V. At the
end thereof, he may or may not have reached age 75. If the
Judge retires at or before age 70, he receives the extra 10%
under Subdivision (1). If he was serving on September 1, 1967,
if he will be 70 or more during the current term, and if he
retires at or before the end of such term, he would receive
the 10% under Subdivision (3).

                               SUMMARY
                               -------
           Section la of Article V of the Constitution
     of Texas is mandatory and the effective date of      "
     retirement of a Justice or Judge under its ,pro-
     visions is the date on which the provisions of
     Section la of Article V of the Constitution
     of Texas apply to the particular Justice or
     Judge, and the office becomes vacant at that
     time.


                                              2g#z=-
                                              . MARTIN
                                              eneral of Texas

Prepared bye John Reeves
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Hawthorne Phillips, Chairman
Kerns Taylor, Co-Chairman
W. V. Geppert
Malcolm Quick
Charles Rose
Arthur Sandlin

A. J. CARUBBI, JR.
Staff -Legal Assistant




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