                                              The Attorney                 General of Texas
                                                                       August   9,     1983

    JIM MATTOX
    Attorney General



    Supreme      Court Building
                                             Honorable   Oscar H. Mauzy                         opinion   No. m-54
    P. 0. Box 12546                          Chairman
    Austin. TX. 76711. 2548                  Committee on Jurisprudence                         Re:     Constr”ction     of section
    5121475~2501                             Texas State Senate                                 44.102(b)   (2)    of   Title      IlOB
    Telex    9101674.1367                    P. 0. Box 12068, Capitol   Station                 relating     to judicial      retire-
    Telecopier      5121475-0266
                                             Austin,   Texas   78711                            ment benefits

    1607 Main St.. Suite 1400                Dear Senator    Mauzy:
    Dallas.  TX. 75201.4709
    2141742a944                                     You advise    that a person who will complete       20 continuous   years of
                                             service    as a district    judge approximately    two months before     the person
    4624 Albetta        Ave.. Suite    160   is 71 years of age does not wish to retire           prior   to becoming 71 years
    E, Paso. TX.        79905.2793           old.     You have asked whether,      in order to be eligible       for retirement
    9151533.3464                             benefits     that   include   an additional     ten percent     of the applicable
-                                            salary,    a person who has 20 years of service         credited   in the judicial
     1220 oallas    Ave., Suite       202
                                             retirement     system must retire   before   he is 71 years old or my retire
     muston,     TX, 77002.6966              at any age.
     7131650-0666
                                                    In our opinion,         such a person   is eligible     for the ten percent
                                             increase     in his annuity       under the judicial    retirement     system only if
     606 Broadway.         Suite 312
                                             he    retires       prior     to   age    71.   YOU also       inquire      about  the
     Lubbock.     TX.     79401-3479
     6061747-5236
                                             constitutionality         of that provision    under the due process         and equal
                                             protection      clauses     of the United States     and Texas Constitutions.       We
                                             believe     that the provision        does not violate     the equal protection     or
     4309 N. Tenth, suite a                  due process      guarantees.
     mA,,en,      TX. 76501-1665
     5121682.4547
                                                    The Texas Constitution         directs   the legislature      to provide    for the
                                             retirement      and compensation       of justices      and judges     of the appellate
     200 Main Plaza. Suite 400               and district      courts   and to set the benefits         of the judicial    retirement
     San Antonio,  TX. 76205-2797            system.      See Tex. Const.     art.    V, §l-a;   art.    XVI, 967(d).     A member of
     5121225-4191
                                             the judicial       retirement    system is eligible          to retire    and receive    a
                                             base    service     retirement    annuity     equal   to 50 percent        of the state
      A” Equal opportunitvi                  salary being paid a judge of a court of the same classification                     as the
      affirmative       Action   Employer    court on which the retiree          last served if the member:

                                                             (1)    is at least        65 years old,  currently     holds
                                                         a judicial      office,      and has at least     10 years     of
                                                         service     credited       in the retirement      system,     the
                                                         most    recently        performed     of which    was    for     a
                                                         continuous     period of at least one year;




                                                                                  p.    224
Honorable     Oscar        H. Mauzy - Page 2               (JM-54)




                   (2) is at least     65 years old and has at least
              12 years     of service,     continuous      or otherwise,
              credited   in the retirement       system,    regardless    of
              whether   the member currently          holds    a judicial
              office;  or

                  (3)    has at least    20 years of service       credited
              in    the    retirement    system,     the    most   recently
              performed     of which was for a continuous         period   of
              at   least     10 years,    regardless     of    whether    the
              member currently      holds a judicial     office.

V.T.C.S.     title     llOB,      §44.101(a).             See   V.T.C.S.        944.102(a).

       Section     2(a) of article   6228b. V.T.C.S.,    which has been codified
in sections       44.101 and 44.102,     title llOB, provided,  in part, that if
a member of          the judicial   retirement    system   has not been   out of
judicial     office     for more than one year at the time he applies          for
retirement     benefits,

              Ialn     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 eligible           by
              length of service        to retirement    benefits    at age 70
              but who retire       immediately     upon becoming eligible.

See Acts 1967,             60th   Leg.,     ch.   692 at         1808;     Acts        1977,   65th   Leg.,   ch.
415 at 1117.

       Section       44.102(b)        now provides:

                  (b)    Except    as provided   by Subsection    (c)   of
              this section,      the retirement   system shall  increase
              by 10 percent        of the amount of the applicable
              state    salary   under Subsection     (a) or (d) of this
              section,     the annuity of a member who retires:

                     (1)     before       becoming        71 years       old;     or

                     (2)    at      any age          immediately   after  becoming
                     eligible       to retire        under Section  44.101 of this
                     subtitle.

This   is   a non-substantitive              recodification.




                                                     p.    225
Honorable        Oscar     H. Mauzy - Page 3        (JM-54)




       "A fundamental           rule    in    the     construction        of    statutes        is     to
ascertain     and give effect          to the intent         of the Legislature."               Jesse*
Associates,       Inc.     v. Bullock,       531 S.W.2d 593,            599 (Tex.        1975).        We
believe      the      legislature       clearly        intends       to    encourage        judicial
retirement      at not later        than age 70 by increasing               by ten percent           the
annuity     of a judge          who retires       before       age 71.        See Abraham, The
Judicial     Retirement       Amendment, 29 Tex. B.J. 1005 (1966).                     However,:
is apparent        from the words of the Judicial                   Retirement       Act that the
legislature      also intends        that a judge who is not eligible                 for judicial
retirement      benefits      at age 70, may retire             at any age and receive               the
ten    percent       increased       annuity,      if     he retires         immediately          after
becoming eligible.            See Attorney       General Opinion H-537 (1975).                    Since
the person       in question       may retire       before      age 71 and receive             a base
service      retirement         annuity      under       each     category       of     eligibility
specified      in section         44.101(a),      title      1lOB. we believe             the plain
language     of the statutory            law codified         as section       44.102(b),         title
1lOB. requires         that person to retire            before     becoming 71 years old in
order to qualify           for the additional          annuity     authorized       by the latter
section.

      We turn to the question     of whether                 the statutory   law codified            in
544.102(b)   violates the equal protection                    or due process   guarantees            of
the state and federal   constitutions.

        Article       I,    section    19,    of    the    Texas     Constitution,         reads     as
follo"s:

                        No citizen  of this State shall       be deprived    of
                  life,    liberty,  property, privileges      or immunities,
                  or in any manner disfranchised,         except by the due
                  course of the law of the land.

        The 5th and 14th amendments to                    the   United     States     Constitution
read,    in part, as follows, respectively:

                  No person shall.    . . be deprived of life,   liberty,
                  or property,   without due process  of law; nor shall
                  private  property   be taken for public   use, without
                  just compensation.

U.S.    Const.      amend. 5.

                 No State shall make or enforce        any law which shall
                 abridge   the privileges      or immunities    of citizens
                 of the United States;       nor shall   any State deprive
                 any person of life,      liberty,   or property,   without
                 due process     of law; nor deny to any person within
                 its jurisdiction     the equal protection     of the laws.




                                               p.   226
Honorable       Oscar   H. Mauzy - Page 4          (JM-54)




U.S.   Const.     amend.    14,   §l.

        The    facts      before    us      do    not      raise     a     question       of     the
constitutionality         of mandatory       retirement.         However,      several     federal
courts      and state        courts    in    other     jurisdictions          have    held     that
mandatory retirement           of state    judges     at age 70 is rationally              related
to the furthering           of several      legitimate       state    objectives,        does not
violate     equal protection,       and does not deprive            a person of "liberty,"
"property,"        or   any due process            rights.        Age is        not   a suspect
classification        for     equal  protection        purposes      and does not require
strict      judicial      scrutiny.       The interest           of   officials        in public
employment is not a fundamental                interest.        See Malmed v. Thornburgh,
621 F.2d 565, (3rd Cir. 1980);              Trafelet     v. Thompson, 594 F.2d 623 (7th
Cir.    1979);    Rubino v. Ghezzi,       512 F.2d 431 (2nd Cir. 1975); O'Neil v.
Balm,      568 S.W.2d 761 (MO. 1978);             Aronstam v. Cashman, 325 A.2d 361
wt.     1974);    Nelson v. Miller,         480 P.2d 467 (Utah 1971);               Boughton v.
Price,    215 P.2d 286 (Idaho 1950).

       By analogy,      we conclude        that   the principles      which uphold        the
constitutionality       of provisions       that mandate involuntary        retirement     of
state    judges    at age 70 also would support             the constitutionality          of
provisions     that encoutage      and compensate voluntary         retirement     of state
judges    at age 70.       Further,      we believe    that a person who voluntarily
chooses    to continue     serving     as a judge past age 70 instead          of choosing
to retire     and receive       the added annuity       as compensation      for retiring
at age 70 does not earn or acquire                   the right     to receive       the ten
percent    additional     retirement      annuity and is not thereby deprived            of a
right    without     due process       of law.      Under section     44.102(b),      judges
similarly      situated     are given       the same treatment.          Accordingly,      we
believe    that section      44.102(b)     is not unconstitutional.

                                          SUMMARY

                    A judge who has 20 years of service                 credited    in
                the judicial        retirement        system before        he is 71
                years    of    age is      eligible       for     the ten percent
                additional        retirement         annuity        authorized      by
                section     44.102(b),      title     llOB, V.T.C.S.,         only if
                the judge retires         prior     to becoming 71 years old.
                Section      44.102(b)       does     not     violate     the    equal
                protection      and due process         guarantees     of the state
                and federal      constitutions.




                                                        JIM      MATTOX
                                                        Attorney  General       of   Texas




                                                  p.   227
Honorable    Oscar   H. Mauzy - Page 5           (JM-54)




TOM GREEN
First Assistant      Attorney   General

DAVID R. RICHARDS
Executive Assistant      Attorney   General

Prepared    by Nancy Sutton
Assistant    Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin,   Acting    Chairman
David Brooks
Colin Carl
Jim Moellinger
Nancy Sutton




                                          p.   228
