   OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

   JOHN CORNYN




                                            July 26,2002



Ms. Sheila W. Beckett, Executive Director            Opinion No. JC-0533
Employees Retirement System of Texas
1801 Brazos Street                                   Re: Whether sections 834.102(b) and 839.102(b),
Austin, Texas 78711                                  Texas Government Code, apply to visiting judges
                                                     who retired prior to January 1,2002
Mr. Jerry L. Benedict                                (RQ-0505JC)
Administrative Director
Office of Court Administration
205 West 14th Street, Suite 600
Austin, Texas 787 1 l-2066


Dear Ms. Beckett and Mr. Benedict:

        The Seventy-seventh Texas Legislature adopted two provisions increasing the retirement
benefits of certain visiting judges. See Act of May 26,2001,77th Leg., R.S., ch. 1240,s 5 3,6,2001
Tex. Gen. Laws 2923-25 (codified at TEX. GOV’T CODEANN. §§ 834.102(b); 839.102(b) (Vernon
Supp. 2002)). You ask whether these enactments increase benefits for visiting judges who retired
prior to the January 1,2002 effective date of the enactment. We answer in the negative.

         The Texas Constitution provides in article V, section 1-a( 1) and article XVI, section 67(d)
for a judicial retirement system, to be administered by the Board of Trustees of the Employees
Retirement System. See TEX.CONST.art. V, 0 1-a( 1); id. art. XVI. § 67(d). There are two judicial
retirement system plans. Membership in Plan One is limited to persons who became judges, justices,
and commissioners of state courts before Plan Two began operation on September 1,1985. See TEX.
GOV’TCODE ANN. 8 832.001(a) (Vernon 1994). See also Act ofMay 27,1985,69th             Leg., R.S., ch.
602, 6 28, 1985 Tex. Gen. Laws 2249,227l (establishing Plan Two). Membership in Plan Two is
limited to judges who have never been eligible for membership in Judicial Retirement System Plan
One or its predecessor, the Judicial Retirement System of Texas. See TEX. GOV’T CODE ANN. 8
837.001(a) (Vernon 1994). Seealso FISCALNOTE,Tex. S.B. 372,77thLeg., R.S. (2001) (explaining
difference in funding of the two plans). The two sections you inquire about, Texas Government
Code sections 834.102(b) and 839.102(b), apply respectively to Plan One and Plan Two.
Subsections 834.102(a) and (d) establish the base service retirement annuity under Plan One, while
subsection 834.102(b) provides as follows:

                       (b) The retirement system shall increase by 10 percent of the
               amount of the applicable state salary under Subsection (a) or (d) the
               annuity of a member who on the effective date of retirement:
Ms. Sheila W. Beckett and Mr. Jerry L. Benedict - Page 2                         (JC-0533)




                                   (1) has not been out of judicial office for more
                           than one year; or

                                   (2) has served as a visiting judge in this state
                           and the first anniversary of the last day of that service
                           has not occurred.

TEX.GOV’TCODEANN. 8 834.102(b) (Vernon Supp. 2002). Section 839.102(a) similarly establishes
the base service retirement annuity under Plan Two, while subsection (b) provides for a 10 percent
increase in the annuity of a member “who on the effective date of retirement . . . has not been out
ofjudicial office for more than one year,” or “has served as a visiting judge in this state and the first
anniversary of the last day of that service has not occurred.” Id. 9 839.102(b). The question is
whether these provisions apply only to visiting judges who retire after the January 1,2002 effective
date, within one year of their last day of service as a visiting judge, or whether it also applies to
visiting judges who had already retired as of that date, within one year of their last day of service.’

         A statute is presumed to be prospective in its operation unless expressly made retrospective.
See id. 8 3 11.022 (Vernon 1998). A retroactive law is one that is intended to act upon things that
are past. See Aetna Ins. Co. v. Richardelle, 528 S.W.2d 280,284 (Tex. Civ. App.-Corpus Christi
1975, writ ref d n.r.e.). In our opinion, sections 834.102(b)(2) and 839.102(b)(2) are prospective
statutes that apply only to visiting judges who retire after January 1, 2002, before the first
anniversary of the last day of service in that capacity. Both provisions use the present tense,
providing that the first anniversary of a judge’s last day of service “has not occurred” as of the date
of retirement, thus excluding retirements that took place in the past. See TEX.GOV’T CODEANN. $5
834.102(b)(2), 839.102(b)(2). By way of comparison, in Reames v. Police Officers ’Pension Bd.,
928 S.W.2d 628 (Tex. App.-Houston [14th Dist.] 1996, no writ), the court determined that certain
amendments to the Police Officers Retirement Plan facially indicated that they were to apply
retroactively. The amendments read as follows:

                            An employee of the city who has retired under this article,
                   . . . and is or has been transferred by action of the city . . . becomes
                  or became as of the effective date of the transfer an active member of
                  the plan under this article from which the person earlier retired.

Reames, 928 S.W.2d at 632 (citing former articles 6243g-1, 8 16A and 6243g-3, 5 25A of the
Revised Civil Statutes, repealed by Act of May 17, 1999,76th Leg., R.S., ch. 381, 5 2, 1999 Tex.
Gen. Laws 1386,1403). See TEX. REV. CIV. STAT.ANN. arts. 6243g-4,§ 19 (Vernon Supp. 2002)




         ‘SeeLetterfromSheilaW. Beckett, Executive Director, Employees Retirement System of Texas, to Honorable
John Cornyn, Texas Attorney General (Feb. 12,2002); Letter from Jerry L. Benedict, Administrative Director, Office
of Court Administration, to Honorable John Comyn, Texas Attorney General (Feb. 1,2002) (letters on file with Opinion
Committee).
Ms. Sheila W. Beckett and Mr. Jerry L. Benedict     - Page 3           (JC-0533)




(present version of provision cited by Reames). The court noted that the section was written in both
the present and the past tense, and therefore included both current and former transferees.

         We conclude that these two provisions increasing retirement benefits for visiting judges
apply only to such judges who retire after the January 1,2002 effective date of the enactment, if the
first anniversary of the last day of service as a visiting judge has not occurred. See Tex. Att’y Gen.
Op. No. C-135 (1963) ( amendment to Judicial Retirement Act operates prospectively and does not
affect retirement status ofjudge who ceased to serve as a judge and withdrew from retirement system
before passage of amendment). Accordingly, sections 834.102(b) and 839.102(b) ofthe Government
Code do not increase benefits for visiting judges who retired before the January 1,2002 effective
date of those provisions.
Ms. Sheila W. Beckett and Mr. Jerry L. Benedict     - Page 4          (JC-0533)




                                       SUMMARY

                         Sections 834.102(b) and 839.102(b) of the Government Code
               increase retirement benefits for a visiting judge who “has served as
               a visiting judge in this state and the first anniversary of the last day
               of that service has not occurred.”         TEX. Gov. CODE ANN. $9
               834.102(b), 839.102(b) (V emon Supp. 2002). These provisions
               operate prospectively and apply only to visiting judges who retire
               after the January 1, 2002 effective date. They do not provide the
               additional benefits to a visiting judge who retired before the effective
               date of the provisions.




                                              Attorney General of Texas



HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee
