The opinion
The Attorney General of Texas
August 9, 1983
JIM MATTOX
Attorney General
Supreme Court Building
Honorable Oscar H. Mauzy opinion No. m-54
P. 0. Box 12546 Chairman
Austin. TX. 76711. 2548 Committee on Jurisprudence Re: Constr”ction of section
5121475~2501 Texas State Senate 44.102(b) (2) of Title IlOB
Telex 9101674.1367 P. 0. Box 12068, Capitol Station relating to judicial retire-
Telecopier 5121475-0266
Austin, Texas 78711 ment benefits
1607 Main St.. Suite 1400 Dear Senator Mauzy:
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
4624 Albetta Ave.. Suite 160 is 71 years of age does not wish to retire prior to becoming 71 years
E, Paso. TX. 79905.2793 old. You have asked whether, in order to be eligible for retirement
9151533.3464 benefits that include an additional ten percent of the applicable
- salary, a person who has 20 years of service credited in the judicial
1220 oallas Ave., Suite 202
retirement system must retire before he is 71 years old or my retire
muston, TX, 77002.6966 at any age.
7131650-0666
In our opinion, such a person is eligible for the ten percent
increase in his annuity under the judicial retirement system only if
606 Broadway. Suite 312
he retires prior to age 71. YOU also inquire about the
Lubbock. TX. 79401-3479
6061747-5236
constitutionality of that provision under the due process and equal
protection clauses of the United States and Texas Constitutions. We
believe that the provision does not violate the equal protection or
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
retirement and compensation of justices and judges of the appellate
200 Main Plaza. Suite 400 and district courts and to set the benefits of the judicial retirement
San Antonio, TX. 76205-2797 system. See Tex. Const. art. V, §l-a; art. XVI, 967(d). A member of
5121225-4191
the judicial retirement system is eligible to retire and receive a
base service retirement annuity equal to 50 percent of 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 credited in the retirement system, the
most recently performed of which was for a
continuous period of at least one year;
p. 224
Honorable Oscar H. Mauzy - Page 2 (JM-54)
(2) is at least 65 years old and has at least
12 years of service, continuous or otherwise,
credited in the retirement system, regardless of
whether the member currently holds a judicial
office; or
(3) has at least 20 years of service credited
in the retirement system, the most recently
performed of which was for a continuous period of
at least 10 years, regardless of whether the
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, title llOB, provided, in part, that if
a member of the judicial retirement system has not been out of
judicial office for more than one year at the time he applies for
retirement benefits,
Ialn 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); (2) those who are not eligible by
length of service to retirement benefits 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) of
this section, the retirement system shall increase
by 10 percent of 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.
p. 225
Honorable Oscar H. Mauzy - Page 3 (JM-54)
"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
believe the legislature clearly intends to encourage judicial
retirement at not later than age 70 by increasing by ten percent the
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 the
legislature also intends that a judge who is not eligible for judicial
retirement benefits at age 70, may retire at any age and receive the
ten percent increased annuity, if he retires 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 retirement annuity 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), title
1lOB. requires that person to retire before becoming 71 years old in
order to qualify for the additional annuity authorized by the latter
section.
We turn to the question of whether the statutory law codified in
544.102(b) violates the equal protection or due process guarantees of
the state and federal constitutions.
Article I, section 19, of the Texas Constitution, reads as
follo"s:
No citizen of this State shall be deprived of
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 of life, liberty,
or property, without due process of 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 or immunities of citizens
of the United States; nor shall any State deprive
any person of life, liberty, or property, without
due process of law; nor deny to any person within
its jurisdiction the equal protection of the laws.
p. 226
Honorable Oscar H. Mauzy - Page 4 (JM-54)
U.S. Const. amend. 14, §l.
The facts before us do not raise a question of the
constitutionality of mandatory retirement. However, several federal
courts and state courts in other jurisdictions have held that
mandatory retirement of state judges at age 70 is rationally related
to the furthering of several legitimate state objectives, does not
violate equal protection, and does not deprive a person of "liberty,"
"property," or any due process rights. Age is not a suspect
classification for equal protection purposes and does not require
strict judicial scrutiny. The interest of 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 that the principles which uphold the
constitutionality of provisions that mandate involuntary retirement of
state judges at age 70 also would support the constitutionality of
provisions that encoutage and compensate voluntary retirement 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
to retire 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 retirement annuity and is not thereby deprived of a
right without due process of law. Under section 44.102(b), judges
similarly situated are given the same treatment. Accordingly, we
believe that section 44.102(b) is not unconstitutional.
SUMMARY
A judge who has 20 years of service credited in
the judicial retirement system before he is 71
years of age is eligible for the ten percent
additional retirement annuity authorized by
section 44.102(b), title llOB, V.T.C.S., only if
the judge retires prior to becoming 71 years old.
Section 44.102(b) does not violate the equal
protection and due process guarantees of the state
and federal constitutions.
JIM MATTOX
Attorney General of Texas
p. 227
Honorable Oscar H. Mauzy - Page 5 (JM-54)
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
p. 228