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                                                 fji?.h&+       Au-Y
Honorable Gordon H. Lloyd          Opinion NO. M-627
Executive Secretary
Employees Retirement System        Re:   Certain questions'
Capitol Station                          relating to judicial
Austin,'Texas 78711                      service retirement
Dear Mr. Lloyd:
          Your request for an opinion on the above subject
matter asks the following questions:
           "1. Does a judge eligible for service
      retirement who makes application to re,tire on
      a date of his choosing thereby fix:
           "a. the date the office is vacated
           "b. the date he becomes a retired judge
      eligible to exercise retirement options
           "c. the date he is to be removed from'the'
      judicial payroll to be placed the following day
      on the retirement payroll
           “2.  If an eligible judge makes application
      for disability retirement as of a certain date,
      is that the date upon which he is to be removed
      from the active payroll and thereafter placed
      upon the disability retirement payroll, even
      if no successor has qualified?

           "3 . Does the office of a judge'who ia
      legally removed for cawe become vacant,at'that
      time even if no successor has qualified7
              "4. Does the Constitutional provision for
      automatic vacancy of judicial office at age 75
      (exceptions note81 affeot the eligibility of
      retired    judges over 75 year8 of age to continue
      as judicial officers subject to temporary
      assignment?"




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Hon. Gordon H. Lloyd, Page 2 (M-627)


          Section l-a of Article V of the Constitution of
Texasprovides:
          "The office ~of everysuch~ Justice and
     Judge shall become vacant when the incumbent
     reaches-the'age of seventy-five (75) years or
     such earlier page, not less than seventy (70)
     years,'as the Legisfature may prescribe; but,
     in the Caseyof'anincumbent whose term of
     office includesthe,effective date of this
     Amendment, this provision shall not prevent
     him from servingsthe 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."
          Subdivision (a) of Section 2 of Article 622Sb,
Vernon's Civil Statutes, reads as follows:
           "(a) Any judge in this state may, at his
     option, retire from regular active service
     after attaining the age of sixty-five (65)
     years and after serving on one or more of the courts
     of this state at least ten (10) years continuously
     or otherwise, provided that his last service
     prior to retirement shall be continuous for a
     period of not less than one year. Any person
     who has served on one or more of the courts of
     this state at least twelve (121 years, continuously
     or otherwise, regardless of whether be is serving on
     a court at such time, shall after attaining the age
     of sixty-five (65) years, be qualified for
     retirement pay under this Act. Any person retiring
     in accordance with this Act after the effective
     date of this amendment shall, during the remainder
     of such person's lifetime receive from the State
     of Texas monthly a base retirement payment equal
     to fifty percent (50%) of the salary being received
     by a judge of a court of the same classification last
     served by such person as judge. 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 provisions of this Act as amended who retire
     at or before age seventy (70); (2) those who are not




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Hon. Gordon Ii.Lloyd, Page 3 (M-627)


        eligible 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%) benefit shall'not be paid to any judge
        who has been out of office for a period of longer
        than one (1)~'yearat the time he applies for
        retirement benefits under this Act. -Y Wge
        drawing retirement at the effective date of
        this Act-shall receive  the same retirement pay
        as judges of the same classification who have
        retired on the current pay scale; that said judge shall
        be entitled to any raises based upon increases in
        current salary."
             Seotion 3 of Article 6228b, Vernon's Civil Statutes,
reads    as follows:
              "If a judge has served on one (1) or more
        of the courts of this state at least seven (7)
        years, continuously or otherwise, and because
        of disability can no longer perform his regular
        judicial duties~as~,such.judge,he shall be retired
        from regular active service, irrespective of his
        age, and shall be entitled to retirement pay during
        the remainder of his lifetime or during the period
        of such disability, under the same conditions and
        limitations as provided in Section 2 of this Act.
             "Any judge coming within the purview of
        this   Statute
                     who shall apply for retirement by
        reason of physical incapacity shall file with
        the Supreme Court of Texas written reports by
        two (2) licensed physicians of the State of Texas
        fully reporting the claimed physical incapacity;
        and the Chief Justice of the Supreme Court of Texas
        is hereby vested with the authority to appoint a
        licensed physician of the State of Texas to make
        any additional medioal investigation they deem
        necessary. Provided, however, that if nuch physical
        disability is caueed or results from the intemperate
        use of alcohol or narcoti,odrugs, such facts shall be
        grounds for denial of such benefits."




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Hon. Gordon Ii.Lloyd, Page 4    (M-627)


           In view of the express provisions of Section l-a
of Article V~of the Constitution of Texas and Subdivision (a)
of Section 2 offArticle 6228b, it is our opinion that a judge
who is eligible for retirement has the constitutional right
to retire.   Therefore, the provisions of Section 17 of Article
XVI of the Constitution of Texas should not be construed so
as to prevent a judge from retiring who is eligible for
retirement if he desires to avail himself of the provisions of
Section l-a of Article V of the Constitution of Texas and the
provisions of Article 6228b, Vernon's Civil Statutes (Judicial
Retirement Act).
          Section 17 of Article XVI of the Constitution of
Texas provides that "all officers of this State shall continue
to 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 office following his resignation until his 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.Zd 322 (Tex.Civ.App. 1938). However, an
 fficer may divest himself of an office before his successor
Eas qualified by himself 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).
          In Attorney General's Opinion M-151 (19671, it was
held that Section l-a of Article V of the Constitution of Texas
is mandatory and when applicable the office of justice or judge
becomes vacant and the justice or judge does not hold over
until his successor has qualified.
          Your questions are accordingly answered as follows:
          1. A judge eligible for service retirement who
makes application to retire on a date of his choosing thereby
fixes the date the office is vacated, the date he is eligible
to exercise retirement options and the date he is to be removed
from the judicial payroll to be placed on the following day
on the retirement payroll.
          2. If an eligible judge makes an application for
disability retirement as of a certain date, such date is the
date upon which he is removed from the judicial payroll and is



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Hon. Gordon II.Lloyd, Page 5 (M-627)


thereafter placed upon the disability retirement payroll,
even if no successor has qualified.
          3.  If a judge is legally removed from office for
cause, such office becomes vacant at that time even if no
successor has qualified.
            4.  Section 7 of Article 622813provides that any
person.~whois~retired under the.,provisionsof the Judicial Re-
 tirement~Act may elect to continue as a judicial officer  and be
~subject,to  assignment by the Chief Justice of the Supreme Court.
~This provision is authorieed under Section l-a of Article V of
 the Constitution which has the following history of amendments
 and limitations:
          Section l-a was added to Section 1 in November, 1948,
by amendment, in the following words:
          "The Legislature shall provide for the
     retirement and compensation of Judges and
     Commissioners of the Appellate Courts end
     Judges of the District and Criminal District
     Courts on account of length of service, age
     or disability, and for their reassignment to
     active duty where and when needed."
          Section l-a of Article V has been~subsequently amended
in 1965 and now reads, in pertinent part, as follows:
          "(1) Subject to the further provisions of this
     Section, the legislature shall provide f   th
     wt       and compensation of Justices anyJudte:of
     the Appellate Courts and District and Criminal Dis-
     trict Courts on account of length of serviae, age
     and disability, and for their reassignment to active
     duty where and when needed. The office of every
     such Justice and Judge shall become vacant when the
     ‘incumbentreaches the age of seventy-five (75) years
     or such earlier age, not less than seventy (70) years,
     as the Legislature may prescribe...." (Emphasis added.)
          The history of Section l-a of Article V, as amended,
clearly shows that the intent of the amendment was to subject
the action of the Legislature to the mandatory provision of
Seation l-a which says I....The office of every such Justice
and Judge shall become vacant when the incumbent reaches the age




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Hon. Gordon   Ii.Lloyd, Page 6 (M-627)


of seventy-five ,(75) years....l and to allow'the Legislature
soms discretion~to set an earlier age, not less~thanseventy
(70), forthe~same purpose. (Emphasis added). The underscored
phrase~refers back to the last antecedent preceding it. This
is "and'for their reassignment to active duty when and where
needed:" However, from a reading of the constitutional provi-
sion it is crystal clear that it also refers back to those
Justices'and Judges first referred to in the first sentence
of~sectionl-a.   The next provision is the office "shall
become vacant when the incumbent reaches the age of seventy-five
(75) years...” and this provision refers to all of those
aotive:.judgesand to all those retired Judges assigned to
active duty aftertheir retirement.
           The language of this constitutiQnaIlprovision must be
Construed as the voters~at the time of its adoption reasonably
understood it. Orndorff v. State, 108 S.W.?d~206 (Tex.Civ.App.
.1937, error ref.) In this connection, the.controlling rule is '.
 set out in 12 Texas.Jurisprudence 2d 369,:Constitutional Law,
 Section 24, as follows:
           "A constitutional provision is;toc:be;~construed
     with a view of understanding the intention of the
     voters, and their purpose should be ascertained and
      followed. Although,the intention of:the:framers
     .is of some ,inportance,the real ques,taonz'ir
                                                  what did
      the-people intend by~adopting a Constitution framed
      in language submitted to them? It is:.,presumed that
      the language writtenwas carefully selerrtedand made
      tb express the will,Qf the people.'"
          House Joint ResQlUtiOn Number 57+-:69ehLegislature,
RegularSession, 1965, (Vol. 1, Gen; & Spec..Laws of The State
of Texas, pp. 2227-2229) recites the intent and purpose of the
constitutional amendment in its caption, which states, in part,
"...requiring automatic retirement of certain District and Appellate
Judges at age seventy-five (75) or such earliiel;   age, not under
seventy (70), as may be provided by law; ,+&.j:!  (underscoring
added.) Section 2 provided that the Constitutional Amendment
be submitted to the voters in-the following framed language,
in part:
          "For the Constitutional Amendment providing for
     the automatic retirement of District and Appellate
     Judges for old age,..." (Emphasis added.)




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non. Gordon H. Lloyd, Page 7   (M-627.)




          "Against the Conrtitutional Amendment
     providing for the automatic retirement of
     District and Appellate Judges for old age,...I,
     (Emphasis added.)
          From the above showing, the intent appears clear
that judges over seventy-five are disqualified to serve.
Constitutional provisions are regarded as mandatory. 12 Tex.
Jur.Zd 361, Constitutional Law, Sec. 13. Furthermore, under
these circumstances, we cannot regard Article 6628b, Section 7,
Vernon's Civil Statutes, as having any effect whatever upon
judges over seventy-five years of age. That statute merely
provides,that any person who is retired under the provisions
of the Judicial Retirement Act may elect to continue as a judicial
officer and be subject to assignment by the Chief Justice of the
Supreme Court. This statute could not validly refer to judges
over seventy-five.
          It is settled law that u...when the constitution speaks,
either directly or by necessary implication, its voice must
be heeded: any law antagonistic thereto cannot stand.'.."12 Tex.
Jur.2d 374, Constitutional Law, Sec. 30.
          Any judicial appointment or assignment aonrrtitutee
"holding office" under Section l-a of Article V, Constitution of
Texasi It follows that retired Justices and Judges, upon
reaching the age of seventy-five years of age, are not eligible to
con&ye   to serve as a judiaial officer subject to temporary
ae8fgnment.
                        SUMMARY
                        -------
          Judges eligible for retirement pursuant to
     the provisions of Section l-a of Article V of the
     Constitution of Texas and the Judicial Retirement
     Act enacted pursuant thereto may retire when
     eligible on the date they choose and thereby
     create a vacancy in the office previously held.
     A vacancy is also created in the office of a judge
     at the time he is legally removed for cause.
     Retired Justices and Judges, upon reaching the age
     of seventy-five (75) years of   e, are not eligible
     to continue as a judicial o     r subject to
     temporary assignment.



                                          General of Texas.


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Hon. GQrdon H. Lloyd, Page 8 (M-627)'


Prepared by Sam L. Jones, Jr.
Assistant Attorney General
APPRQVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Acting Co-Chairman
J. C. Davis
Roger Tyler
Houghton Brownlee
Bob Flowers
MEADE F. GRIFFIN
Staff Legal Assistant '~'
ALFRED WALKER
ExectitiveAssistant
NOLA WHITE
First Assistant




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