                            The Attorney General of Texas
                                                April    3,    1978

JOHN L. HILL.
Attorney General


                        Honorable Joseph N. Murphy                    Opinion ‘No. Ii- 114 9
                        Executive Director
                        Employees Retirement System                   Re: Administration       of Judicial
                          of Texas                                    Retirement.
                        Box 12357, Capitol Station
                        Austin, Texas 78711

                        Dear Mr.’Murphy:

                              You have asked a number of questions regarding the administration          of
                        the judicial retirement system.

                                Recent amendments to article 200a, V.T.C.S., provide that a former
                        district judge who is not yet retired is eligible for assignment as a special
                        judge so long as he is not more than 70 years of age and has not been defeated
                        for reelection or removed from office. The amendment declares that such an
                        individual, during the period of his assignment as a special judge, shall be paid
um aroedmy, sun* 312
L”baock, TX. 76401                  the same amount of compensation,           salary, and
3aw47-6336
                                    expenses that the regular judge is entitled to receive
                                    from the county and from the state for such services.
4313 N. Tsn,h. sunr P
McAl*n. TX. 73301       Section 5a. In Attorney General Opinion H-1021 (19771, we held that the
6ww2-4347               “compensation” of a former district judge assigned as a special judge includes
                        the accrual of creditable service toward retirement.     When the Legislature
                        added former district judges to the group available for special assignment,
                        however, it did not alter the relevant portions of artidle 62284 the judicial
                        retirement statute, to conform therewith.    We are therefore obliged to apply
                        the requirements of article 6228b to this class of persons without the benefit
                        of legislative guidance.

                               You first ask whether a’ erson on assignment may retire from %gular
                        active service” under section 2i a) of article 62284 and if so, whether such an
                        individual may be eligible for the additional ten percent benefit payable
                        thereunder. Section 2(a) provides:




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Honorable Joseph N. Murphy      -   Page 2     (H-1149)



            Any judge in thii 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 hi 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 (12) years, continuously or otherwise,
            regardless of whether he 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: (0 those eligible for retirement under any provisions
           of thii Act as amended who retire at or before age seventy
            (70); and (2) those who are not eligible by length~of service
            to retirement benefits at age 70 but who retire immediately
           upon becoming eligible. 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) year at the time
            he applies for retirement benefits under thii Act, except
            that any provisions in any statute to the contrary notwith-
           standing, a judge who on the effective               date of this
            amendment has retired at or before age seventy (70) and
            who is now serving as the presiding judge of an administra-
            tive judicial district is entitled to the additional ten percent
           (10%) provided in this section. Any judge 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.

        In our opinion, there is one instance in which a former district judge may
 retire while on special assignment under article 2008. Section 2(a) makes eligible
 for retirement any person who is 65 years of age and who has 12 years cumulative
 service, without regard to “whether he is serving on a court” at the time of his
 retirement.    However, the statute also provides that a judge may retire from
regular active service at age 65 with 10 years total service, provided that “his last




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 .      L




Honorable Joseph N. Murphy      -   Page 3     (H-1149)



service prior to retirement Ihas been] continuous for a period of not less than one
year.” Siie a special judge is not on regular active service, he may not retire
under this provision.

       Section 2(a) also establishes an additional 10 percent benefit for judges who
retire by the age of 70 or as soon thereafter as they become eligible to do so. The
statute provides that, under most circumstances,       the additional benefit is not
available to “any judge who has been out of office for a period of longer than one (1)
year at the time he applies for retirement benefits.” Section 5(a) of article 2008
states that a former district judge, while on assignment “shall have all the powers
of a judge....”     It does not, however, provide that a former district judge who
accepts an assignment “shall continue as a judicial officer,” as does a retired judge
under sections 7 and IA of article 6228b. Furthermore, in Werlein v. Calvert, 460
S.W.2d.398 (Tex. 1970), the Supreme Court held that, a retired judge

            is authorized to exercise the powers of an office while
            serving on assignment.    He does not by virtue of the
            assignment, however, hold an office . . . .

460 S.W.2d at 40L We do not believe, therefore, that a former district judge
serving on special assignment occupies an “office” for purposes of section 2(a) of
article 6228b. In our opinion, the benefit is available only to judges who retire
from office, not those who retire from special assignment.    Thus, any creditable
service he aocrues while on assignment will not affect his eligibility to the
additional ten percent benefit created by section 2(a).

      Your next question is whether a person assigned as a special judge may apply
for a disability benefit under section 3, which provides:

               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 thii 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




                                       p.    4666
Honorable Joseph N. Murphy     -   Page 4     (H-1149)



           the authority to appoint a licensed physician of the State of
           Texas to make any additional medical investigation        they
           deem necessary.     Provided, however, that if such physical
           disability is caused or results from the intemperate use of
           alcohol or narcotic drugs, such facts shall be grounds for
           denial of such benefits.

Thii provision is applicable when a judge is no longer able to perform his “regular
judicial duties.” Since a person assigned as a special judge does not have regular
judicial duties, section 3 does not apply.

       You also ask whether a judge on assignment        may qualify   for retirement
benefits under that portion of section 4 which states:

           Any person who has served on one (l) or more Courts of this
           State as defined herein for twenty (20) years or more at any
           time,’ continuously or otherwise, provided that his last
           service prior to the date of retirement      shall have been
           continuous for a period of not less than ten (10) years, shall
           likewise be entitled to retirement pay under the provisions
           of thii Act.

Section 4 permits a judge with 20 years cumulative service to retire if his last
period of service prior to retirement has been continuous for at least 10 years.
However, he must remain on assignment for a continuous period of ten years. Just
as with a regular judge, ncontfnuous service” is not, of course, tantamount to a
daily courtroom appearance, and we believe that the special judge and the
appointing authority may agree to an arrangement which accomplishes the intent of
the ‘%ontinuous service” requirement.

       Next, you ask whether a judge who accepts a special assignment should pay in
retirement contributions an amount equal to six percent of the monthly judicial
salary, or six percent of the salary he is actually paid. While on special assignment,
a former district judge is entitled to receive “the same amount of compensation,
salary and expenses” as a regular judge. Section 5 of article 6228b directs that
every judge “shall contribute the same percentage of his annual salary paid to him
by the State which is contributed by each member of the Employees Retirement
System.” In Attorney General Opinion H-667 (1975), we construed this provision to
mean that judges ere to “contribute six percent (6%) of their annual compensation
paid by the State to the Judicial Retirement System,” the “same rate as other
employees in general.” The Employees Retirement System has interpreted section
8A of article 62288 to require that the 6 percent contribution of state employees
should be applied only to that portion of their salary actually paid. In our opinion,
such a construction    is equally applicable to the retirement      contributions of a
former district judge who accepts a special assignment.        We are of the opinion,




                                       p.   4667.
 .




Honorable Joseph N. Murphy      -   Page 5     (H-1149)



therefore, that such an individual should contribute      an amount equal to 6 percent of
the salary he is actually paid.

       Your final question is whether a former district judge with more than 10 but
leas than 12 years creditable service is eligiile for the death benefit plan under
section 2(a-1) of article 6226b, which provides:

              Prior to retirement any contributing member with ten (10) or
           more years creditable service, and any noncontributing      member
           with twelve (12) or more years creditable service, may select a
           Death Benefit Plan and designate a nominee to receive a reduced
           monthly annuity either for life, or for a ten (10) year guaranteed
           period, to become effective and payable, in lieu of the refund of
           the member’s contributions, to such nominee beginning the day
           following the death of such member. If the qualified member
           dies without having made such Death Benefit Plan Selection, the
           surviving spouse may choose the plan in the same manner as if
           the member had completed the’selection;       otherwise, contribu-
           tions shaR be refunded         to the designated        beneficiary.
           Application for such plan shall be on forms prescribed by the
           State Board of Trustees. The reduced benefits shall be computed
           in the same manner as for a member’s service retirement as
           provided elsewhere in this Act. The ages of the member and the
           nominee at the date of the member’s death shall be used in
           determining the reduced annuity. The plan selected shall become
           null and void upon the effective date of the member’s retire-
           ment, provided, however, that any member with seven (7) or
           more years of creditable service who is required to retire on
           disability, as provided elsewhere in this Act, shall be eligible to
           select a reduced annuity in the same manner as that provided for
           members retiring on a service retirement.

Section 2(8-D applies to any ‘contributing member with ten (10) or more years
creditable service.” Contributions to the retirement system are made on a monthly
basis. V.T.C.S. art. 6228b, S 5. In our opinion, a judge is a “contributing member”
if, during a particular month, he makes any contribution to the Judicial Retirement
System.    So long as a judge accepts a special assignment during any part of a
month, he receives compensation and thus makes a contribution for that month.
Accordingly, we believe that the death benefit plan is available to R judge who has
served on special assignment during the month of his death.

                                    SUMMARY

              A former district judge who is not yet retired is eligible
           for assignment as a special judge under the circumstances
           stated in article 2008, V.T.C.S.




                                          p.   4668
Honorable Joseph N. Murphy   -   Page 6   (H-1149)



             A judge on special assignment does not qualify for a
          disability benefit under article 6228b, section 3 if the
          disability occurs while he is serving on special assignment.

             A judge on special assignment should pay in retirement
          contributions an amount equal to six percent of the salary
          actually paid him.

             The death benefit plan in article 62284 section 2(8-l) is
          available to a judge who serves on special assignment during
          the month of his death and who otherwise qualifies




APPROVED:




Opinion Committee

jst




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