                      The Attorney                General of Texas
                                       December        15,   1978
JOHN L. HILL
Attorney General


                   Honorable Joseph N. Murphy, Jr.                  Opinion No. H- 12 8 5
                   Executive Director
                   Employees Retirement System of Texas             Re: Whether       a judge       who
                   P. 0. Box 12337, Capitol Station                 retires before he is 65 is eligible
                   Austin, Texas 78711                              for the additional 10% benefit
                                                                    authorized    by article    6228b,
                                                                    S 2(a) for those who retire before
                                                                    age 70.

                   Dear Mr. Murphy:

                         You have requested our opinion regarding a provision of article 6228b.
                   V.T.C.S., the Judicial Retirement Act. Section 2(a) authorizes the retirement
                   of judges who have attained the age of 65. It further states, in pertinent
                   part:

                              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 classifica-
                              tion 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:     (1) those eligible  for  retirement
                              under any provisions of this 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.

                   (Emphasis added). Section 2(d) provides for the retirement of any judge who
                   ls at least 60, but less than 65 years of age. The benefits accruing to such a
                   person are
                              reduced from age sixty-five (65) years and his monthly
                              base retirement   payments shall be the following




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Honorable Joseph N. Murphy, Jr.     -    Page 2     (H-1285)



           percent of the salary being received by a judge of a court of
           the same classification last served by such person as a judge,
           based upon his retirement age. . . .

An individual who retires at age 60 is eligible for a 40 percent benefit, and the
percentage increases for each year to age 64, when it is 47.7 percent of full salary.
You ask whether a retiree under section 2(d) is eligible for the additional 10 percent
benefit provided by section 2(a).

        In our opinion, the additional 10 percent benefit is available to a judge who
retires under section 2(d). The benefit “shall be added to the base retirement
payment” of any judge “eligible for retirement under s         provision” of the Act,
provided he retires “at or before age seventy (701.” Section 2(d), describing
“monthly base retirement payments” for certain retirees, is indisputably such a
provision. In addition, while section 2(d) was added in 1971, section 2(a) was last
amended in 1977. Since the legislature must be presumed to have chosen its
language carefully, and since section 2(a) represents the latest expression of
legislative intent, it is our opinion that a judge who retires prior to age 65 under
the provisions of section 2(d) of article 6228b is eligible for the additional 10
percent provided by section 2(a).

                                   SUMMARY

           A judge who retires prior to age 65 under the provisions of
           section 2(d) of article 6228b, V.T.C.S., is eligible for the
           additional 10 percent benefit provided by section 2(a) of that
           statute.




Opinion Committee




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