                                  ATTORNEY GENERAL OF TEXAS
                                               GREG         ABBOTT




                                                February 13,2006



Mr. Carl Reynolds                                          Opinion No. GA-0398
Administrative Director
Office of Court Administration                             Re: Eligibility of former and retired judges to sit
Post Office Box 12066                                      by assignment    (RQ-0377-GA)
Austin, Texas 787 1 l-2066

Dear Mr. Reynolds:

          You ask several questions about a2003 amendment to Government Code section 74.055 that
increased the eligibility requirements for retired and former judges serving on assignment to trial
courts.’ In particular, you ask about the grandfather clause that exempts certain judges from the new
eligibility requirements.

         Government Code section 74.052 provides that “Cjludges may be assigned in the manner
provided by this chapter to hold court when necessary to dispose of accumulated business in
the [administrative judicial] region.” TEX. GOV’T CODE ANN. 8 74.052(a) (Vernon 2005); see id.
 5 74.042(a) (dividing state into nine administrative judicial regions). Judges subject to assignment
 include certain former and retired judges. See id. 8 74.054. Section 74.055 requires the presiding
judge of each judicial administrative region to “maintain a list of retired and former judges who meet
the requirements of this section.” Id. 6 74.055(a). “To be eligible to be named on the list, a retired
 or former judge must” fulfill the requirements set out in section 74.055(c). Id. 6 74.055(c). House
Bill 3306 of the Seventy-eighth Legislature amended the section 74.055(c) eligibility requirements
 and adopted a grandfather clause exempting certain judges from the new eligibility requirements.
See Act of May 29,2003,7Sth Leg., R.S., ch. 3 15, $0 12,23(c), 2003 Tex. Gen. Laws 1337, 1339-
40, 1342. Before the 2003 amendment became effective, section 74.055(c) provided as follows:

                  (c) To be eligible to be named on the list, a retired or former judge
                  must:

                        (1) have served as a judge for at least 48 months in a district,
                  statutory probate, statutory county, or appellate court;



         ‘See Letter from Carl Reynolds, Administrative   Director, Office of Court Administration,   to Honorable   Greg
Abbott, Attorney General of Texas (Aug. 16,2005) (on file with Opinion Committee,      also available at http:llwww.oag.
state.tx.us) [hereinafter Request Letter].
Mr. Carl Reynolds   - Page 2                    (GA-03 98)




                    (2) have developed substantial experience in the judge’s area of
               specialty;

                    (3) not have been removed from office;

                     (4) certify under oath to the presiding judge, on a form
               prescribed by the state board of regional judges, that the judge did not
               resign from office after having received notice that formal
               proceedings by the State Commission on Judicial Conduct had been
               instituted as provided in Section 33.022 and before the final
               disposition of the proceedings;

                     (5) annually demonstrate that the judge has completed in the
               past calendar year the educational requirements for active district,
               statutory probate, and statutory county court judges; and

                    (6) certify to the presiding judge a willingness not to appear and
               plead as an attorney in any court in this state for a period of two years.

Act of May 17, 1995,74th    Leg., R.S., ch. 298, $4, 1995 Tex. Gen. Laws 2666,2666-67.

        House Bill 3306 amended subsection 74.055(c)(l) to increase the length of service required
and subsection 74.055(c)(4) to provide more stringent requirements regarding disciplinary actions.
See ActofMay29,2003,78thLeg.,RS.,ch.        315,s 12,2003 Tex. Gen. Laws 1337,1339-40. These
provisions now read as follows:

               (c) To be eligible to be named on the list, a retired or former judge
               must:

                     (1) have served as an active judge for at least 96 months in a
               district, statutory probate, statutory county, or appellate court;




                    (4) certify under oath to the presiding judge,          on a form
               prescribed by the state board of regional judges, that:

                         (A) the judge has never been publicly reprimanded or
                    censured by the State Commission on Judicial Conduct; and

                         (B) the judge:

                            (i) did not resign or retire from office after the State
                         Commission on Judicial Conduct notified the judge of the
Mr. Carl Reynolds   - Page 3                    (GA-0398)




                         commencement of a full investigation into an allegation or
                         appearance of misconduct or disability of the judge as
                         provided in Section 33.022 and before the final disposition
                         of that investigation; or

                              (ii) if the judge did resign from office under
                         circumstances    described by Subparagraph (i) was not
                         publicly reprimanded      or censured as a result of the
                         investigation[.]

TEX. GOV’TCODEANN. 3 74.055(c) (Vernon2005). Subsections 74.055(c)(2), (3), (5) and (6) were
not changed. House Bill 3306 also added subsection (f) to section 74.055:

                            (f) A former or retired judge is ineligible to be named on
               the list if the former or retired judge is identified in a public statement
               issued by the State Commission on Judicial Conduct as having
               resigned or retired from office in lieu of discipline.

Id. 3 74.055(f), adopted by Act of May 29,2003, 78th Leg., R.S., ch. 315, § 12,2003 Tex. Gen.
Laws 1337, 1339-40. The amendments to section 74.055 were effective June 18,2003. See Act of
May 29,2003, 78th Leg., R.S., ch. 3 15, 5 27(a), 2003 Tex. Gen. Laws 1337, 1342.

       We turn to your questions.     Your first question is as follows:

               Assume that a judge was on the list of judges eligible to serve on
               assignment on June 17, 2003, but the judge did not meet the new
               eligibility requirements enacted by H.B. 3306. Is the judge still
               eligible to serve on assignment on June 18,2003?

Request Letter, supra note 1, at 3.

         The answers to your questions are found in section 23(c) of House Bill 3306, which exempts
certain persons from the 2003 amendments to section 74.055. We construe section 23(c) to
determine and give effect to the legislature’s intent. See Liberty Mut. Ins. Co. v. Garrison
Contractors, Inc., 966 S. W.2d 482,484 (Tex. 1998). We must construe it as written and, if possible,
ascertain legislative intent from the provision’s plain language. See Morrison v. Ghan, 699 S.W.2d
205,208 (Tex. 1985); Liberty Mut. Ins., 966 S.W.2d at 484.

       Section 23(c) provides in part:

               The change in law made by this Act to Section[] . . . 74.055,
               Government Code, does not apply to a person who immediately
               before the effective date of this Act meets the eligibility requirements
               to . . . be named on a list of retired and former judges under Section
Mr. Carl Reynolds      - Page 4                        (GA-0398)




                 74.055(c),     Government     Code, other than the certification
                 requirement under Section 74.0.5.5(c)(6), Government Code, and the
                 former law is continued in effect for determining that person’s
                 eligibility for those purposes.*

Act of May 29,2003,78th        Leg., R.S., ch. 3 15, 5 23(c), 2003 Tex. Gen. Laws 1337,1342 (emphasis
added).

         As a preliminary matter, we consider the phrase “other than the certification requirement
under Section 74.055(c)(6), G overmnent Code[.]” Id. This language provides an exception to the
section 74.055(c)(6) requirement that a retired or former judge “certify to the presiding judge a
willingness not to appear and plead as an attorney in any court in this state for a period of two years”
as a condition of eligibility to be named on the list. See WEBSTER’s NEW INTERNATIONAL
DICTIONARY 888 (2d ed. 1947) (“except” used as a preposition means “other than”). It is not clear
at first glance to which other provision in section 23(c) the exception applies. Section 23(c) could
be read as if “[tlhe change in law made by this Act to Section[] . . . 74.055, Government Code,”
other than the certification requirement under Government Code section 74.055(c)(6), “does not
apply to a person who immediately before the effective date of this Act meets the eligibility
requirements to . . . be named on a list of retired and former judges under Section 74.055(c),
Government Code.” Act of May 29,2003,78th Leg., R.S., ch. 3 15, 8 23(c), 2003 Tex. Gen. Laws
 1337, 1342. Under this reading, section 23(c) would grandfather certain persons from any change
to section 74.055 made by House Bill 3306, except for a change to the 74.055(c)(6) certification
requirement. House Bill 3306 did not, however, make any change in section 74.055(c)(6). See id.
$ 12,2003 Tex. Gen. Laws 1337, 1339-40 (amending Government Code section 74.055(c)(l) and
(c)(4), an d 1e av ing section 74.055(c)(6) unchanged). Thus, the phrase “other than the certifkation
requirement under Section 74.055(c)(6)” cannot meaningfully relate to “[tlhe change in law made
by this Act to Section[] . . . 74.055, Government Code.” Id. $23(c), 2003 Tex. Gen. Laws 1337,
1342.

          Instead, we read the exception to refer to “the eligibility requirements to . . . be named on a
list of retired and former judges under Section 74.055(c), Government Code.” Id. Read in this way,
section 23(c) would provide that

                 [t]he change in law made by this Act to Section[] . . . 74.055,
                 Government Code, does not apply to a person who immediately
                 before the effective date of this Act meets the eligibility requirements
                 [other than the certification requirement under Section 74.055(c)(6)]
                 to . , , be named on a list of retired and former judges under Section
                 74.055(c), Government Code.

Id. Section 23(c) would thus grandfather certain persons who met the eligibility requirements that
existed before the effective date of House Bill 3306, except they would not have to meet the section


        ‘The omitted language pertains to eligibility for assignment to courts under other Government   Code provisions.
Mr. Carl Reynolds    - Page 5                  (GA-0398)




74.055(c)(6) certification requirement.   Because the certification requirement was an eligibility
requirement that existed immediately before the effective date of House Bill 3306, the exemption
could meaningfully apply to it. Thus, reading the exception as exempting certain persons from
meeting the certification requirement gives the exception meaning in the context of section 23(c).

         Section 23(c) maintains the status quo of persons who qualified for appointment to serve by
 assignment under 74.055(c) immediately before the effective date of changes to that section. A
judge who was on the list immediately before the effective date of House Bill 3306 presumably met
the eligibility requirements applicable at that time. Accordingly, the new eligibility requirements
do not apply to him and “the former law is continued in effect” for determining his eligibility for
 service. Id. Section 23(c) in effect exempts this person from the new section 74.055 eligibility
requirements.

        You next ask:

               If the answer to question 1(a) is yes, must the judge remain on the list
               continuously in order to remain eligible to serve on assignment at any
               time after June 18, 2003? For example, assume that at some point
               after June 18, 2003 the judge requests that his or her name be
               removed from the list but he or she wishes to resume serving on
               assignment at a later date. Will the judge be eligible to be placed on
               the list at that time even though the judge does not meet the new
               requirements?

Request Letter, supra note 1, at 3.

          Pursuant to section 23(c)‘s literal language, the new eligibility requirements added by House
Bill 3 306 do not apply to “a person who immediately before the effective date of this Act meets the
eligibility requirements , . . to be named on a list of retired and former judges.” Act of May 29,
2003,78th Leg., R.S., ch. 3 15, 5 23(c), 2003 Tex. Gen. Laws 1337, 1342. Actually being on the list
is not an eligibility requirement.

        Section 23(c) also provides that “the former law is continued in effect for determining that
person’s eligibility.” Id, This provision identifies a class of persons whose eligibility is to be
determined according to former law, without limiting the time in which the former law will apply
to them. Retired and former judges must meet the eligibility requirements under former Government
Code section 74.055(c), “other than the certification requirement under Section 74.055(c)(6),
Government Code.” Id. Thus, they are not required to “certify to the presiding judge a willingness
not to appear and plead as an attorney in any court in this state for a period of two years.” TEX.
GOV’T CODE ANN. § 74.055(c)(6) (Vernon 2005). The legislature expressly excepted retired and
former judges within section 23(c) from the only eligibility requirement that would otherwise have
to be renewed after the effective date of the 2003 amendments.

      If a person is eligible to serve on assignment immediately prior to the effective date of the
2003 amendments to section 74.055, his eligibility to be placed on the list in the future will be
Mr. Carl Reynolds     - Page 6                   (GA-0398)




determined according to the former version of section 74.055(c). In answer to your specific question,
the judge does not have to remain on the list continuously to remain eligible to serve on assignment
at any time after June 18,2003. He need only meet the eligibility requirements under former section
74.055(c) to be placed on the list in the future.

        Your next question is as follows:

                Assume that a former or retired judge was eligible to be named on the
                list on June 17, 2003, but was not in fact on the list. Is the judge
                eligible to be named on the list after the effective date of H.B. 3306
                if the judge does not meet the new eligibility requirements added by
                H.B. 3306?

Request Letter, supra note 1, at 3.

          As we have previously discussed, if a former or retired judge was eligible to be named on the
list on June 17 but was not in fact on the list, his eligibility to be named on the list after the effective
date of House Bill 3306 is determined according to section 74.055(c) prior to the changes adopted
by House Bill 3306. He need not be on the list to remain eligible under former law to be placed on
the list.

        Your last question provides:

                Assume that a judge would have been eligible to be named on the list
                if the judge had left the bench and asked to be placed on the list on or
                before June 17,2003. Also assume that the judge did not leave the
                bench until after June 18,2003, at which time the judge did not meet
                the new eligibility requirements. Is the judge eligible to be named on
                the list when leaving the bench?

Id.

          The judge in this case was an active judge, not a former or retired judge, immediately before
the effective date of the statute. See TEX. GOV’T CODE ANN. 6 74.041(4) (Vernon 2005) (“‘Active
judge’ means a person who is a current judicial officeholder.“). Section 23(c) preserves the status
quo for judges who were able to qualify for service by assignment immediately before the change
 in the section 74.055 eligibility requirements. An active judge was unable to qualify for service by
 assignment under section 74.055(c) on or before June 18,2003, because only a “a retired or former
judge” could qualify under that provision. Id. 9 74.055(c). An individual who was an active judge
when the changes to section 74.055 became effective and who subsequently leaves the bench and
 seeks appointment to the list for service by assignment must qualify under section 74.055 as
 amended by House Bill 3306.
Mr. Carl Reynolds   - Page 7                 (GA-0398)




                                      SUMMARY

                        Government    Code section 74.055(c) sets out eligibility
               requirements applicable to former and retired judges who wish to
               sit by assignment as a judge. Amendments to section 74.055 that
               became effective on June 18,2003 increased the required length of
               service needed to qualify and adopted stricter requirements as to
               disciplinary actions. The amending legislation excepted from the
               changes to section 74.055 those persons who qualified to serve by
               assignment under its requirements immediately before the changes
               became effective. The exception applies both to persons who at the
               relevant time were on the list to serve by assignment and those who
               were not on the list but qualified to be placed on it. The exception
               does not apply to a person who was an active judge when the changes
               to section 74.055 became effective.

                                             Very truly yours,




                                      /4!ti2%-
                                             Attorweral
                                                          A   BOTT
                                                                of Texas



BARRY R. MCBEE
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee
