                                               The Attorney          General of Texas
                                                                May 18, 1983
      JIM MATTOX
      Attorney General


                                              Mr. Clayton T. Garrison                Opinion No. JM-34
      Supreme   Court Building
                                              Executive Director
      P. 0. Box 12546
      Austin. TX. 78711. 2546                 Employees Retirement System of Texas         Entitlement of retired
      512/475-2501                            P. 0. Box 13207                        yzdge to continued retirement
      Telex    9101874.1367                   Austin, Texas   78711                  benefits when he has been
      Telecopier      5121475-0266                                                   elected to 8erve a regular
                                                                                     term as district judge
      ,607 Main Sl.. suite 1400
      Dallas.   TX. 75201.4709                Dear Mr. Garrison:
      214l742.8944
                                                   You advise that a retired annuitant of the Judicial Retirement
      4624 Alberta       Ave., Suite    160
                                              system, see V.T.C.S. title llOB, Subtitle E, has been elected to serve
      E, Paso. TX.       79905-2793           as a district judge. His term of office began on January 1, 1983.
      9151533.3464                            You state that there are no clear statutory guidelines relating to
                                              retirement benefits under those circumstances, and you have therefore
                                              asked the following questions:
      ,220 Dallas Ave.. Suite          202
      Houston.   TX. 77002.6986
      713/650-0666                                         1. Will the judge’s annuity      be   suspended
                                                        during his term of office?
      606 Broadway,         Suite 312
                                                          2. If the answer to question no. 1 is 9, are
      Lubbock.     TX.    79401.3479
                                                       we correct in concluding that no contributions
      606/747-5238
                                                       could be deducted from the judge’s future salary
                                                       warrants and that no additional rights would
      4309 N. Tenth, Suite 5                           accrue?   If not, please explain what benefit
      McAllen.     TX. 78501~1665                      entitlements the judge would accrue based upon his
      5121662.4547
                                                       current period of service and when they would
                                                       become payable.
      200 Main Plaza. Suite 400
      San Antonio.  TX. 76205-2797                        3. If the answer to question no. 1 was yes,
      512/225-4191                                     will the judge make contributions to the Judicial
                                                       Retirement System under section 42.001 and 45.101
      An Equal       OpportunityI                      of title IlOB during the upcoming period of
      Affirmative      Action     Employer             service?

                                                           4. If the answer to the third question is yes,
                                                        then, upon retirement or death, would we:

                                                           (4   reinstitute the original annuity      and
                                                           refund any intervening contributions;
,-.



                                                                           p. 144
Mr. Clayton T. Garrison - Page 2   (JM-34)




             (b) recompute the original annuity with the
             same option, beneficiaries, and reduction
             factors, but with credit for the additional
             service included; or

             Cc) calculate a new retirement as if the
             original retirement had never taken palace?

            5. If the answer to question no. 3 is "0, are
         we correct in assuming that, upon retirement or
         death, we would reinstitute the retirement
         benefits at the point they were suspended? If
         not, please explain what benefits entitlements the
         judge would have and when they would become
         payable.

     We believe that in enacting article 6228b. V.T.C.S., which has
been repealed and codified as subtitle E, title llOB, V.T.C.S., the
legislature authorized compensation &    for persons who no longer are
justices or judges of the named courts although these persons may
elect to be "judicial officers" subject to assignment to those courts.
See 542.101 et seq.; Attorney General Opinion MU-586 (1982). As we
zstrue   the subtitle, it does not authorize retirement compensation
for a "retiree" who loses his status as such by being reelected or
reappointed to a judicial office that is included in the Judicial
Retirement System. Were we to conclude otherwise, we would be
constrained to hold that the subtitle violates the Texas Constitution.

     The appropriation of the necessary sums of money from the general
revenue fund to pay judicial retirement annuities is permitted by
article V, section l-a, and article XVI, section 67(d), of the Texas
Constitution. Those sections direct the legislature to provide for
the retirement and compensation of justices and judges of the
appellate and district courts and their reassignment to active duty
where and when needed, and to set the contributions and benefits of
the judicial retirement system. When the people adopted article V,
section l-a, they limited the scope of the legislature's power under
that provision to a program that includes both the retirement and the
comnensation of the named individuals and their reassisnment to active
duty while retired and receiving retirement compensation. See Farrar
V. Board of Trustees of Employees Retirement System of Texas, 243
S.W.2d 688 (Tex. 1951); Attorney General Opinion M-95 (1967). Words
in a constitutional amendment must be "given their natural, obvious
and ordinary meanings as they are understood by citizens who adopted
the amendment." State V. Clement*, 319 S.W.2d 450, 452 (Tex. Civ.
APP. - Texarkana 1958, writ ref'd); Attorney General Opinion M-28
(1967). We believe that in adopting article V, section l-a, the
people contemplated "retirement" to mean to end or cease, rather than
to suspend, interrupt, or temporarily halt. ?ee   Towne V. Towne, 117
Mont. 453, 159 P.2d 352, at 357 (1945);       Webster's     Third New



                              p. 145
,


    Mr. Clayton T. Garrison - Page 3   (JM-34:




    International Dictionary 2359 (1961); Black's Law Dictionary 1183,
    1319 (5th ed. 1979).

         Therefore, we conclude that the constitution empowers the
    legislature to provide judicial retirement compensation only to
    persons who no longer serve as justices or judges except for service
    as assigned judges.

         Because we answer your first question in the affirmative, we need
    not address your second question. Your third question inquires
    whether a formerly retired justice or judge who received retirement
    annuities but later resumed the office of justice or judge of an
    appellate or district court must make contributions to the Judicial
    Retirement System while he holds the office. We believe that the
    annual membership fee required by section 42.002 and the contributions
    deducted monthly from the state compensation of members under section
    45.101 are mandatory for a person holding such a judicial office.

         Section 42.001 of title llOB, V.T.C.S., expressly limits
    membership in the Judicial Retirement System to judges, justices, and
    commissioners of the named courts. This section further mandates that
    persons holding those offices be members of the system beginning on
    the first day that they hold such judicial offices. The codification
    of article 6228b as subtitle E. title llOB, reiterates the same
    membership limitation in section 42.103, which states that a retiree
    who makes an election to be a judicial officer subject to assignment
    to certain courts may not rejoin the retirement system or receive
    credit in the retirement system for service performed under
    assignment. During the time that a person is a "retiree," even though
    he may be a "judicial officer" subject to assignment, he does not hold
    the office of justice or judge of the court in question and%       not
    eligible for membership in the retirement system as provided by
    section 42.001. A person terminates his membership in the system when
    he ceases to be a justice, judge, or commissioner and either withdraws
    his contributions to the system or receives a retirement annuity or
    retirement allowance. Sets. 42.003 and 42.004. Sections 42.001 and
    42.103 require a person be a member of the Judicial Retirement System
    while holding the office of justice or judge of an appellate or
    district court and prohibit membership to persons not holding such an
    office.

         Because we answer your third question in the affirmative, we need
    not address your fifth question. In answer to your fourth question,
    we believe that your third suggested answer is correct. In our
    opinion, YO" should calculate a new retirement on the member's
    retirement or death as if the original retirement had never taken
    place. A former retiree had a vested right to the retirement benefits
    for which he was eligible under the constitution and subtitle E, title
P   llOB, V.T.C.S., for as long as he continued the status that made him
    eligible. A person who voluntarily changes his status in a manner




                                   p. 146
Mr. Clayton T. Garrison - Page 4    (~~-34)




that renders him no longer eligible for the retirement benefits
authorized by the constitution and statutes is not deprived of a
property right without due process of law. We believe that a former
retiree who resumes membership in the Judicial Retirement System
reacquires all the rights and obligations of that membership and is
entitled to retire again with his retirement benefits and options
unaffected by his previous retirement. The legislature manifested its
intention to encourage retirement under the Judicial Retirement System
not earlier than age 65 by actuarily reducing the retirement annuity
of certain members who retire before that age and to encourage
retirement not later than age 70 by increasing the annuity of a member
who retires before aee 71 by 10 oercent of the amount of the
applicable state salary. Sections 44.101 and 44.102, title IlOB,
V.T.C.S. See Abraham, The Judicial Retirement Amendment, 29 Tex. B.J.
1005 (1966). We believe that to reinstate the original annuity would
not comply with those intentions of the legislature.

                             SUMMARY

             A retired annuitant of the Judicial Retirement
          System who is elected or appointed to a court
          included in that system is entitled to the
          emoluments of the office to which he is elected or
          appointed but is not entitled to also receive a
          retirement annuity during the time that he holds
          the office.     On resuming membership in the
          Judicial Retirement System while holding the
          office of a justice or judge included in the
          system, a person who formerly was a retired
          annuitant acquires again all the rights and
          obligations of that membership and is entitled to
          retire again with his retirement benefits and
          options unaffected by his previous retirement.

                                     ,      :-jz$&&



                                                    MATTOX
                                            Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared by Nancy Sutton
Assistant Attorney General




                                   p. 147
Mr. Clayton T. Garrison - Page 5   (JM-34)




APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
David Brooks
Rick Gilpin
Jim Moellinger
Nancy Sutton




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