             TRE          A’ITORNEY    GENERAL
                              OF TEXAS
                          Aus-rm.     T-s            78711




                                February       21,   1975


The Honorable Everett L. Anschute                       Opinion   No.   H-   537
Executive Secretary
Employees   Retirement  System of Texas                 Re: Computation of Judicial
Box 12337, Capitol Station                              Retirement Benefits.
Austin,  Texas   78711



Dear Mr.   Anschutz:

        You have requested our opinion concerning     the construction  of that
portion of article 6228b, section 2(a), V. T. C. S., which provides for an
addition of ten percent of a judge’s salary to his retirement   payments.

       Article   6228b,   section   2(a),    provides   in pertinent    part:

                      An additional ten per cent (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; 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: . . .

         You ask whether a judge is entitled to the additional ten per cent
when he began his first six year term on January 1, 1963, began an
additional six year term on January 1, 1969, reached 70 years of age on
November    27, 1971, completed 10 years service on January 1, 1973, and
served his entire second term ending December      31, 1974.




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The Honorable    Everett    L.   Anschuta    page 2     (H-537)




          It is apparent under these facts that the judge is not entitled to
the additional ten per cent.        He did not retire at or before age 70 and
is not so entitled under (1). While he was “not eligible by length of
service to retirement       benefits at age 70, ” he did not retire “immediately
upon becoming eligible”       (the tenth anniversary     of his original election)
and therefore is not entitled under (2).        Nor did he become 70 during
his current (as of Sept. 1, 1967) term of office,         “current”   meaning
“now passing,       present in its course,   as the current month, ” Pecos
Mercantile     Co. v. Texlite,     Inc., 65 S. W. 2d 811 at 812 (Tex. Civ. App.
--Dallas,     1933), aff’d.  96 S. W. 2d 73 (Tex. Sup. 1936), and therefore
is not entitled under (c).      Consequently,    it is our opinion that a judge
is not entitled to the additional ten per cent under these facts.

                                   SUMMARY

                    Where a judge neither retired at or before
                the age of 70, nor retired immediately   upon
                becoming eligible,  and did not become 70 years
                of age during his term of office which included
                September 1, 1967, he is not eligible for the
                additional ten per cent provided by article 6228b,
                 V. T. C. S.




                                               c/     Attorney    General   of Texas




C. ROBERT HEATH,           Chairman
Opinion Committee


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