Case Information
*1 The Attorney General of Texas August 9, 1983 JIM MATTOX
Attorney General
Supreme Telecopier Austin. Telex P. 0. Box 12546 5121475~2501 9101674.1367 TX. 76711. Court Building 5121475-0266 [2548] Committee on Jurisprudence P. 0. Box 12068, Capitol Station Austin, Texas Texas State Senate Chairman Honorable Oscar H. Mauzy 78711 ment benefits relating Re: Constr”ction opinion No. m-54 (2) to judicial of Title retire- IlOB Dear Senator Mauzy: 1607 Main St.. Suite 1400 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 is 71 years of age does not wish to retire prior to becoming 71 years 4624 Albetta Ave.. Suite 160 old. You have asked whether, in order to be eligible for retirement E, Paso. TX. 79905.2793 that include an additional ten percent the applicable 9151533.3464 - salary, a person who has 20 years of service credited in the judicial retirement system must retire before he is 71 years old or my retire
1220 oallas Ave., Suite 202 at any age. muston, TX, 77002.6966 7131650-0666 In our opinion, such a person is eligible increase in his annuity under the retirement system only 606 Broadway. Suite 312 he prior age 71. YOU also inquire about Lubbock. TX. 79401-3479 constitutionality that provision under the due process and equal 6061747-5236 protection clauses of the United States and Texas Constitutions. We the provision does not violate the equal protection 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 and compensation justices and judges the appellate and district courts and to set the benefits of the judicial 200 Main Plaza. Suite 400 San Antonio, TX. 76205-2797 system. See Tex. Const. art. V, §l-a; art. XVI, 967(d). A member of 5121225-4191 system is eligible and receive a
base service equal to 50 percent 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 the retirement system, most recently performed of which was a continuous period of at least one year; (2) is at least 65 years old and has at least 12 years service, continuous or otherwise, credited in the retirement system, regardless whether the member currently holds a judicial office;
(3) has at least 20 years of service system, the most recently performed of which was for a continuous period regardless of whether at least 10 years, 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, llOB, provided, in part, a member of system has not been out of office for more than one year at the time he applies benefits,
Ialn additional ten percent (10%) applicable salary shall be added the base 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 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) this section, the retirement system shall increase by 10 percent 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.
"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 legislature clearly intends encourage at not later than age 70 by increasing by ten percent 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 legislature also intends that a judge who is not eligible at age 70, may retire at any age and receive increased annuity, if he 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 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), 1lOB. requires that person before becoming 71 years old in order to qualify the additional annuity authorized by the latter section.
We turn to the question of whether the statutory law codified violates the equal protection or due process guarantees the state and federal constitutions.
Article I, 19, of the Texas Constitution, reads as follo"s:
No citizen this State shall be deprived 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 life, liberty, or property, without due process 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 immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process law; nor deny to any person within its jurisdiction the equal protection of the laws.
U.S. Const. amend. 14, §l. facts do not raise a question the
The before us However, several federal constitutionality of mandatory retirement. and state courts in other jurisdictions have held that
courts mandatory retirement of state judges at age 70 is rationally related to the furthering of several legitimate state objectives, does not and does not deprive a person of "liberty," violate equal protection, "property," or any due process rights. Age is not a suspect classification equal protection purposes and does not require strict scrutiny. The interest 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 the principles which uphold the constitutionality of provisions that mandate involuntary retirement state judges at age 70 also would support the constitutionality provisions that encoutage and compensate voluntary 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 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 annuity and is not thereby deprived of a right without due process law. Under section 44.102(b), judges similarly situated are given the same treatment. Accordingly, we that section 44.102(b) is not unconstitutional.
SUMMARY A judge who has 20 years of service system before he is 71 years of age is eligible
additional authorized by 44.102(b), llOB, V.T.C.S., only judge prior to becoming 71 years old. Section does not violate equal protection and due process guarantees of the state and federal constitutions.
JIM MATTOX Attorney General of Texas 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