Case Information
*1 The Attorney General of Texas May 18, 1983 JIM MATTOX
Attorney General
Supreme P. 0. Box 12546 512/475-2501 Austin. Telecopier Telex 9101874.1367 TX. 78711. Court Building 5121475-0266 [2546] Mr. Clayton T. Garrison P. 0. Box 13207 Austin, Texas 78711 Executive Director Employees Retirement System of Texas benefits when he has been yzdge to continued retirement elected to 8erve a regular Opinion No. JM-34 Entitlement of retired
term as district judge Dallas. 214l742.8944 ,607 Main Sl.. suite TX. 75201.4709 [1400] Dear Mr. Garrison: You advise that a retired annuitant of the Judicial Retirement system, see V.T.C.S. title llOB, Subtitle E, has been elected to serve 4624 Alberta Ave., Suite 160 as a district judge. His term of office began on January 1, 1983. E, Paso. TX. 79905-2793 You state that there are no clear statutory guidelines relating to 9151533.3464 retirement benefits under those circumstances, and you have therefore asked the following questions: ,220 Dallas Ave.. Suite 202 Houston. TX. 77002.6986 1. Will the judge’s annuity be suspended 713/650-0666 during his term of office?
606 Broadway, Suite 312 2. If the answer to question no. 1 is 9, are Lubbock. TX. 79401.3479 we correct in concluding that no contributions 606/747-5238 could be deducted from the judge’s future salary
warrants and that no additional rights would accrue? If not, please explain what benefit 4309 N. Tenth, Suite 5 McAllen. TX. 78501~1665 entitlements the judge would accrue based upon his 5121662.4547 current period of service and when they would
become payable. 200 Main Plaza. Suite 400 3. If the answer to question no. 1 was yes, San Antonio. TX. 76205-2797 512/225-4191 will the judge make contributions to the Judicial
Retirement System under section 42.001 and 45.101 of title IlOB during the upcoming period of An Equal OpportunityI service? Affirmative Action Employer
4. If the answer to the third question is yes, then, upon retirement or death, would we: (4 reinstitute the original annuity and refund any intervening contributions; ,-.
Mr. Clayton T. Garrison - Page 2 (JM-34)
(b) recompute the original annuity with the same option, beneficiaries, and reduction factors, but with credit for the additional service included; or
Cc) calculate a new retirement as if the original retirement had never taken palace? 5. If the answer to question no. 3 is "0, are we correct in assuming that, upon retirement or death, we would reinstitute the retirement benefits at the point they were suspended? If not, please explain what benefits entitlements the judge would have and when they would become payable.
We believe that in enacting article 6228b. V.T.C.S., which has been repealed and codified as subtitle E, title llOB, V.T.C.S., the legislature authorized compensation & for persons who no longer are justices or judges of the named courts although these persons may elect to be "judicial officers" subject to assignment to those courts. See 542.101 et seq.; Attorney General Opinion MU-586 (1982). As we zstrue the subtitle, it does not authorize retirement compensation for a "retiree" who loses his status as such by being reelected or reappointed to a judicial office that is included in the Judicial Retirement System. Were we to conclude otherwise, we would be constrained to hold that the subtitle violates the Texas Constitution.
The appropriation of the necessary sums of money from the general revenue fund to pay judicial retirement annuities is permitted by article V, section l-a, and article XVI, section 67(d), of the Texas Constitution. Those sections direct the legislature to provide for the retirement and compensation of justices and judges of the appellate and district courts and their reassignment to active duty where and when needed, and to set the contributions and benefits of the judicial retirement system. When the people adopted article V, section l-a, they limited the scope of the legislature's power under that provision to a program that includes both the retirement and the comnensation of the named individuals and their reassisnment to active duty while retired and receiving retirement compensation. See Farrar V. Board of Trustees of Employees Retirement System of Texas, 243 S.W.2d 688 (Tex. 1951); Attorney General Opinion M-95 (1967). Words in a constitutional amendment must be "given their natural, obvious and ordinary meanings as they are understood by citizens who adopted the amendment." State V. Clement*, 319 S.W.2d 450, 452 (Tex. Civ. APP. - Texarkana 1958, writ ref'd); Attorney General Opinion M-28 (1967). We believe that in adopting article V, section l-a, the people contemplated "retirement" to mean to end or cease, rather than to suspend, interrupt, or temporarily halt. ?ee Towne V. Towne, 117 Mont. 453, 159 P.2d 352, at 357 (1945); Webster's Third New *3 ,
Mr. Clayton T. Garrison - Page 3 (JM-34:
International Dictionary 2359 (1961); Black's Law Dictionary 1183, 1319 (5th ed. 1979).
Therefore, we conclude that the constitution empowers the legislature to provide judicial retirement compensation only to persons who no longer serve as justices or judges except for service as assigned judges.
Because we answer your first question in the affirmative, we need not address your second question. Your third question inquires whether a formerly retired justice or judge who received retirement annuities but later resumed the office of justice or judge of an appellate or district court must make contributions to the Judicial Retirement System while he holds the office. We believe that the annual membership fee required by section 42.002 and the contributions deducted monthly from the state compensation of members under section 45.101 are mandatory for a person holding such a judicial office.
Section 42.001 of title llOB, V.T.C.S., expressly limits membership in the Judicial Retirement System to judges, justices, and commissioners of the named courts. This section further mandates that persons holding those offices be members of the system beginning on the first day that they hold such judicial offices. The codification of article 6228b as subtitle E. title llOB, reiterates the same membership limitation in section 42.103, which states that a retiree who makes an election to be a judicial officer subject to assignment to certain courts may not rejoin the retirement system or receive credit in the retirement system for service performed under assignment. During the time that a person is a "retiree," even though he may be a "judicial officer" subject to assignment, he does not hold the office of justice or judge of the court in question and% not eligible for membership in the retirement system as provided by section 42.001. A person terminates his membership in the system when he ceases to be a justice, judge, or commissioner and either withdraws his contributions to the system or receives a retirement annuity or retirement allowance. Sets. 42.003 and 42.004. Sections 42.001 and 42.103 require a person be a member of the Judicial Retirement System while holding the office of justice or judge of an appellate or district court and prohibit membership to persons not holding such an office.
Because we answer your third question in the affirmative, we need not address your fifth question. In answer to your fourth question, we believe that your third suggested answer is correct. In our opinion, YO" should calculate a new retirement on the member's retirement or death as if the original retirement had never taken place. A former retiree had a vested right to the retirement benefits for which he was eligible under the constitution and subtitle E, title llOB, V.T.C.S., for as long as he continued the status that made him P eligible. A person who voluntarily changes his status in a manner
Mr. Clayton T. Garrison - Page 4 (~~-34)
that renders him no longer eligible for the retirement benefits authorized by the constitution and statutes is not deprived of a property right without due process of law. We believe that a former retiree who resumes membership in the Judicial Retirement System reacquires all the rights and obligations of that membership and is entitled to retire again with his retirement benefits and options unaffected by his previous retirement. The legislature manifested its intention to encourage retirement under the Judicial Retirement System not earlier than age 65 by actuarily reducing the retirement annuity of certain members who retire before that age and to encourage retirement not later than age 70 by increasing the annuity of a member who retires before aee 71 by 10 oercent of the amount of the applicable state salary. Sections 44.101 and 44.102, title IlOB, V.T.C.S. See Abraham, The Judicial Retirement Amendment, 29 Tex. B.J. 1005 (1966). We believe that to reinstate the original annuity would not comply with those intentions of the legislature.
SUMMARY A retired annuitant of the Judicial Retirement System who is elected or appointed to a court included in that system is entitled to the emoluments of the office to which he is elected or appointed but is not entitled to also receive a retirement annuity during the time that he holds the office. On resuming membership in the Judicial Retirement System while holding the office of a justice or judge included in the system, a person who formerly was a retired annuitant acquires again all the rights and obligations of that membership and is entitled to retire again with his retirement benefits and options unaffected by his previous retirement.
, :-jz$&&
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
Mr. Clayton T. Garrison - Page 5 (JM-34)
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
David Brooks
Rick Gilpin
Jim Moellinger
Nancy Sutton