                                        The Attorney           General of Texas
                                                          December 31, 1982
MARK WHITE
Attorney General


                                       Mr. Maurice S. Pipkin                  Opinion No. ~~-586
Supreme      Court Building
P. 0. BOX 12546
                                       Executive Director
Austin.    TX. 76711. 2546             State Commission on Judicial Conduct   Re: Whether former district
512/475-2501                           P. 0. Box 12265, Capitol Station       judge serving on judicial
T&x      9101874.1367                  Austin, Texas   78711                  assignment may practice law
Telecopier     5121475-0266                                                   between assignments

1607 Main St., Suite 1400              Dear Mr. Pipkin:
Dallas, TX. 75201.4709
2141742-6944                                Your question concerns the following portion of section 5a of
                                       article 200a, V.T.C.S.:
4624 Alberta       Ave.. Suite   160
El Paso, TX.       79905-2793                   all former district judges who were elected at a
9151533.3464                                    general election or appointed by the governor; who
                                                have not been defeated for reelection; who have
                                                not been removed from office by impeachment, the
1220 Dallas Ave., Suite 202
Houston.     TX. 77002-6986
                                                Supreme Court, the governor upon address of the
713/650-0666                                    legislature, the State Judicial Qualifications
                                                Com!sission,or by the legislature's abolishment of
                                                the iudae's court: who are not more than 70 years
806 Broadway,        Suite 312
                                                of age;-and who certify to the presiding judge a
Lubbock.     TX.    79401.3479
806/747-5238
                                                willingness to serve and to comply with the same
                                                prohibitions relating to the practice of law that
                                                are imposed on a retired judge by Section 7,
4309 N. Tenth, Suite I3                         Article 6228(b)... may be assigned under the
McAlle”.     TX. 76501-1685                     provisions of this Act by the presiding judge of
5121662.4547
                                                the administrative judicial district wherein such
                                                assigned judge resides.... (Emphasis added).
200 Main Plaza. Suite 400
San Antonio,  TX. 76205-2797           In this statute, the legislature has said that in order to be eligible
5121225-4191
                                       for the privilege of receiving temporary judicial assignments, former
                                       district judges must agree to subject themselves to certain
An Equal      Opportunity/             restrictions. The nature of those restrictions is the subject of your
Affirmative     Action     Employer    opinion request.

                                            Article 6228b, V.T.C.S., which is improperly cited as "Article
                                       6228(b)" in article 200a, was repealed in 1981. Acts 1981, 67th Leg.,
                                       ch. 453, §3(4), at 2063. Its provisions are now contained in section
                                       41.001 et seq. of Title llOB, Public Retirement Systems, V.T.C.S. The
                                       "prohibitions relating to the practice of law" to which article 200a




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Mr. Maurice S. Pipkin - Page 2    (MW-586)




refers may now be found in sec~tion 44.005 of Title 1lOB.     Section
44.005 states:

             A retiree receiving an annuity from the
          retirement system may not appear and plead as an
          attorney in any court in this state.

     You  advise that a question has       arisen concerning the
applicability of this prohibition to a particular former district
judge. You inquire as to the "duration of the prohibition against
practicing law on former district judges."

     Several arguments concerning the applicability of section 44.005
to former district judges who have made the article 200a certification
have been presented to us. The first is that the section 44.005
prohibition is not applicable to said former district judges unless
they are receiving retirement benefits from the judicial retirement
system. We disagree. A former district judge who receives retirement
benefits from the judicial retirement system is, in our opinion, a
"retiree" within the meaning of section 44.005. See Title llOB,
section 41.001 (definition of "retiree"). As a "retiree"3 said former
district judge    is automatically subject to        section 44.005.
Manifestly, the legislature could not have intended to require former
district judges to certify their willingness to comply with a
prohibition to which they are already necessarily subject. Moreover,
to conclude that section 44.005 applies to former district judges who
have made the article 200a certification only if they are receiving
retirement benefits from the judicial retirement system would be to
render the certification meaningless from the standpoint of former
district judges who are not receiving these benefits. There are no
"prohibitions relating to the practice of law" within the meaning of
article 200a other than the one imposed by section 44.005.

     It has also been suggested that a former district judge who has
made the article 200~3 certification is not subject to the section
44.005 prohibition when he is not actually serving on a judicial
assignment. Again, we disagree. It is quite clear from the language
of article 200a that the section 44.005 prohibition remains applicable
as long as a former district judge's certification is extant.

     Finally, questions have arisen concerning the duration of an
article 200a certification. Article 200a is silent on the question of
whether a certification may be withdrawn. It also fails to indicate
whether, if a former district judge decertifies, he may later
recertify. We next deal with these issues.

     In our opinion, a former district judge may withdraw a
certification made under article 200a. The statute itself does not
suggest otherwise. Moreover, if a former district judge is no longer




                                 p. 2176
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      Mr. Maurice S. Pipkin - Page 3     (MW-586)




      willing   or  able   to meet the      requirements stated   therein,
      decertification would seem to be mandatory. If he decertifies, a
      former district judge who is not otherwise a "retiree" is, in our
      opinion, no longer bound by the section 44.005 prohibition.

           We also conclude that a former district judge who withdraws an
      article 200~1 certification may later recertify. Again, the statute
      does not suggest otherwise. Although it might be argued that an
      individual could abuse the statutes by certifying, decertifying,
      recertifying, etc., in order to be able to accept temporary judicial
      assignments and then appear and plead in court in between such
      assignments, we find no remedy in the statute. We perceive no basis
      for reading into article 200a, which is absolutely silent on this
      matter, limitations upon the duration of a certification or the number
      of times that a former district judge may decertify and recertify. It
      should be emphasized, however, that the chief justice of the supreme
      court and the presiding judges of the court of criminal appeals and of
      the various administrative judicial districts are responsible for
      making temporary judicial assignments. Nothing requires these judges
      to tender temporary judicial assignments to a former district judge
      simply because he has certified his willingness to accept them.

           We therefore conclude that if they have made the article 200a
      certification, former district judges are subject to the section
      44.005 prohibition. They are also subject to the prohibition as long
      as their certification is extant. We finally conclude that there is
      no statutory prohibition that would preclude a former district judge
      who has withdrawn an article 200a certification from later
      recertifying.

                                  SUMMARY

                  To be eligible for assignment under article
               200a, V.T.C.S., a former district judge must
               certify his willingness to accept the prohibitions
               relating to the practice of law that are imposed
               upon retired judges by section 44.005 of Title
               1lOB. Public Retirement Systems, V.T.C.S. The
               prohibition is applicable as long as a judge's
               article 200s~ certification is extant. Finally a
               former district judge may withdraw an article 200a
               certification and later recertify.




                                            -MARK      WHITE
                                             Attorney General of Texas




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Mr.   Maurice S. Pipkin - Page 4   (MW-586)




JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by Jon Bible
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Jim Moellinger




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