                       The Attorney               General of Texas
                                         April 19,           1979
MARK WHITE
Attorney General


                   Honorable Ben Z. Grant, Chairman                 Opinion No. MN-13
                   House Judiciary Committee
                   P. 0. Box 2910                                   Re: Calculation of compensation
                   Austin, Texas 78769                              for   retired  judges sitting  on
                                                                    assignment.

                   Dear Representative   Grant:

                          You have requested our opinion regarding the proper method of
                   calculating the compensation of a retired judge who is sitting on assignment.
                   Section 5a of article 200a, V.T.C.S., provides that a retired judge who has
                   been assigned

                              shall be paid . . . an amount representing         the
                              difference between all of the retirement benefits of
                              such judge as a retired district judge and the salary
                              and compensation from all sources of the judge of the
                              court wherein he is assigned, and determined pro-rata
                              for the period of time he actually sits as such
                              assigned judge.

                   You indicate   that the Judicial Retirement System has construed “pro-rata”
                   to mean that a   retired judge should be compensated at l/265 of the relevant
                   annual salary for each working day he actually serves. You suggest that,
                   under this method of computation, the compensation of a retired judge is
                   only 71 percent of that of a regular judge, and you ask whether such an
                   interpretation  of section 5a is correct.

                         By letter dated August 30, 1962, the Comptroller of Public Accounts
                   construed section 5a to require that an assigned judge be compensated on
                   the basis of l/365 of the regular judge’s annual salary for each day served on
                   assignment. The Comptroller added, however, that

                               the days involved necessarily spent in traveling as
                               well as Saturdays and Sundays involved, while sitting
                               on the bench under an administrative     order of the
                               presiding judge of the administrative judicial district
                               wherein such assigned judge resides, are properly




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Honorable Ben Z. Grant    -   Page Two     (MW-13)



           included as days of active duty, when such days are included in the
           administrative order.

Thus, a retired judge whose assignment began on March 1 and continued without
interruption through March 28 would be entitled to receive as his totai compensation an
amount equal to ,28/365 of the proper annual salary. See V.T.C.S. ar.. 6228b. §§ 7, 8b.
This office has previously held that, in determining t’neproper      metnod of calculating
compensation, a ruling by the Comptroller “should not be disturbed unless it is clearly
unreasonable.”    Attorney General Opinion H-645 (1975). The method set out in the
Comptroller’s letter avoids the problem of authorizing compensation at only ‘71per cent of
the regular salary. There is little practical difference between the Comptroller’s method
of calculating the judge’s -salary and other potential methods.        In our opinion, the
Comptroller’s 1962 decision is not clearly unreasonable, and accordingly, it represents an
acceptable    method of calculating    the compensation    of a retired judge serving on
assignment.

       You also state .that the Judicial Retirement    System has construed section 5a to
require that an assigned judge receive the difference between the full salary of the
regular judge of the court to which he is assigned and the maximum retirement benefits
payable to a retired judge. The statute makes clear, however, that this latter amount
must be calculated on the basis of “all of the retirement benefits 0:‘ such judge as a
retired district judge.” (Emphasis added). Thus, the proper method of calculation is the
difference between the full salary of the regular judge and the sum of all retirement
benefits actually paid to the assigned judge. If the retirement benefits of an assigned
judge begin or change during a period of assignment, the calculation should be made on a
daily basis, and the judge paid for each day of service an amount equal to the difference
between the regular judge’s salary for a particular day and the pro-rata retirement
benefits assignable to that particular day.

                                     SUMMARY

           A retired judge who is sitting on assignment is entitled to be
           compensated in an amount equal to the difference between the
           salary of the regular judge of the court to which he is assigned and
           the sum of all the retirement benefits actually paid to the assigned
           judge. Compensation may be calculated on the basis of l/365 of the
           relevant   annual amount for each day included withih the
           assignment, including Saturdays and Sundays.

                                            Very truly yours,



                                            MARK     WHITE
                                            Attorney Generai of Texas




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    Honorable Ben Z. Grant    -   Page Three        (PIW-13)



    JOHN W. FAINTER, JR.
    First Assistant Attorney General

    TED L. HARTLEY
    Executive Assistant Attorney General

    Prepared by Rick Gilpin
    Assistant Attorney General

    APPROVED:
    OPINION COMMITTEE

    C. Robert Heath, Chairman
    David B. Brooks
    Walter Davis
    Rick Gilpin
    William G Reid
    Bruce Youngblood’




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