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                           The Attorney                General of Texas
                                            March      12,    1980
MARKWHITE
Attorney General

S”premecoun Building   Honorable Mike Atkins                         Opinion No. MW-145
P.O.BOX12548
Aurfi”. TX. 78711      Office of the County Attorney
512,475.2501           Ector County                                  Re: Whether a former district
                       Room 223, Courthouse                          judge may purchase credit under
                       Odessa, Texas ‘79761                          the Judicial Retirement    Act for
                                                                     prior military service even though
                                                                     he is not serving as a judge at the
                                                                     time of the purchase.

                       Dear Mr. Atkins:

                             You have requested our opinion as to whether a former district judge
                       may purchase credit for prior military service even though he is not at that
                       time serving as a district judge.

                             Section 2A of article 6228b, V.T.C.S., provides:

                                  Any contributing member of the Judicial Retirement
                                  System who has completed eight (8) or more years of
                                  service creditable under the Judicial Retirement Act
                                  (article 6228b, Vernon’s Texas Civil Statutes) and who
                                  is not receiving nor eligible to receive a federal
                                  military retirement based upon twenty (20) or more
                                  years of federal military active duty service or the
                                  equivalent thereof may receive creditable service for
                                  not more than forty-eight     (48) months of federal
                                  military active duty service performed during time of
                                  armed conflict by paying to the Judicial Retirement
                                  System for deposit in the General Revenue Fund an
                                  amount equal to 6 percent of his current monthly
                                  salary for each month of such military service
                                  established.

                       Thus, in order to be permitted to obtain creditable service for prior military
                       service, an individual must be a “contributing member of the Judicial
                       Retirement System” at the time of the purchase of such creditable service.
                       In Attorney General Opinion H-1149 (1978), this office said that




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Honorable Mike Atkins    -   Page Two     (NW-145)



           a judge is a ‘contributing member’ if, during a particular month, he
           makes any contribution to the Judicial Retirement System.

       A judge is requireti to make a contribution to the System for any period in which he
receives a salary. V.T.C.S. article 6228b, section 5. By directing the Comptroller to
deduct the appropriate amount, in this case 6 percent, from the judge’s salary, Attorney
General Opinion H-667 (19’75),the statute implies that receipt of a salary is a prerequisite
for making a contribution to the System, and that a judge who receives no salary during a
particular month makes no contribution, and hence is not a “contributing member” during
that month. We conclude that a judge is not permitted to obtain creditable service for
prior military service during any month in which he receives no salary for services
rendered as a judge.

       Article 6821, V.T.C.S., requires, however, that a person receive a salary for any
service rendered as a special judge under section 5 of article 11of the Texas Constitution
or statutes such as V.T.C.S. articles 1885, et seq, From that salary, the Comptroller is
directed to withhold the appropriate amount as a contribution to the Judicial Retirement
System. V.T.C.S. article 6228b, section 5; Attorney General Opinion H-1149 (1978). Thus,
during any month in which a person serving as a special judge is entitled to receive a
salary under article 6821, V.T.C.S., he is a “contributing       member” of the Judicial
Retirement System, and, as such, is entitled to purchase credit for prior military service
pursuant to section 2A of article 6228b, V.T.C.S.

                                       SUMMARY

           A former district judge may not purchase credit for military
           service unless he is at such time serving as a district judge or as a
           special judge.

                                         AX&



                                               MARK     WHITE
                                               Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

TED L. HARTLEY
Executive Assistant Attorney General

Prepared by Rick Gilpin
Assistant Attorney General




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Honorable Mike Atkins   -   Page Three        (NW-145)



APPROVED:
OPINION COMMITTEE

C. Robert Heath, Chairman
Susan Garr$on
Rick Gilpin
Eva Loutzenhiser
Bruce Youngblood




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