Untitled Texas Attorney General Opinion ( 1986 )

The Attorney General of Texas
JIM MAlTOX
June 20, 1986
Attorney General
Supreme Court Building
Honorable Jim D. Rudd Opinion No. JM-506
P. 0. Box 1254S
Austin, TX. 70711.254S Chairman
51214752501 House Appropriations Committee Ret Requirements for election
Telex 910/874-1367 Texas House of Representatives to continue as judicial officer
Teleoopler 512147502S9 P. 0. Box 2910 by retired statutory county
Austin, Texas 78769 court judges
714 Jackson, Suile 7M)
Dallas. TX. 752024Y3S Dear Representative Rudd:
21417425944
You ask whether a retired statutory county court judge would have
4S24 Alberta Ave.. Suite 180
to make an election to continue as a judicial officer within 90 days
El Paw, TX. 799052793 after his retiwment even though his retirement may have occurred
915/w years before he became eligible for appointment by the enactment
the Court AdminirXration Act, Acts 1985, 68th Leg., ch. 732, at 5284.
Also, a question has been raised as to whether such a judge is subject
~rsol Texas, suite 700
to the prohibit%cNns relating to the practice of law imposed on
Mon. TX. 77002-3111
11312255888
retired judge by former section 44.005, Title llOB, V.T.C.S.
conclude that the Court Administration Act does not require a retired
statutory county court judge to make an election to serve within
806 Broadway. Suite 312 days after his retirement and that the prohibition in section 44.005
Lubbock. TX. 79401.3479 is applicable to siucha judge.
9W747-5238
Historicall!r,article 200a, V.T.C.S., authorized and governed
Uog N. Tenth, Suite B assignment of regular, retired, and former district court judges
MeAllen, TX. 79501.1885 the presiding judge of the Administrative Judicial District and by
5121082J547
chief justice of ,theSupreme Court. On May 27, 1985, the Sixty-ninth
Legislature pasrzd the Court Administration Act which, effective
2DO Main Plaza, Suite 400 January 1, 1986, repealed all of article 200a and enacted in its place
San Antonio. TX. 782052797 a new and more comprehensive act for the administration of the courts
512l2254191 of this state. A#:ts1985, 69th Leg., ch. 732, at 5284. - Cf. Attorney
General Opinion .I%474 (1986).
An Equal Opportunity/
Affirmative Actlon Employer Section 4.014 of the Court Administration Act provides:
The following judges may be assigned as
provid,,dby this chapter by the presiding judge of
the atloinistrativeregion in which the assigned
judge resides:
(1) a regular district or county court at law
judge in this state;
p. 2323
Honorable Jim D. Rudd - Page 2 ,(J&506)
(2) a district judge who is a retiree under
Subtitle E, Title LlOB, Revised Statutes, who has
consented to be Eubject to assignment and who is
on the list maintained by the presiding judge as
required by this section; and
(3) a former district judge or retired or
former statutory Eounty court judge who certifies
;; ;~m~esi;M~t;:dge a willingness to serve and
PY prohibitions relating to the
practice of law ?mposed on a retired judge by
Section 44.005, Trtle IIOB, Revised Statutes, and
who is on the l:& maintained by the presiding
judge as requirc:d by this section. (Emphasis
added).
Your question arises from the fact that on the same day that the
legislature enacted the Court Administration Act, May 27, 1985, the
legislature also passed :hapter 602, which became effective on
September 1, 1985. Chapter 602 made extensive changes in the state's
judicial retirement system, retaining one program for current judges
and creating a separate program for future judges. It also enacted
changes in the prohibition against the practice of law in court by
retired judges receiving M annuity under the judicial retirement -.
system. Until the express repeal of section 44.005, Title 1lOB.
V.T.C.S., by section 17(b) of chapter 602, (effective September 1,
1985). section 44.005 provid,edthat all retirees "receiving an annuity
from the [state judicial] ,cetirementsystem may not appear and plead
as an attorney in any court of this state." Simultaneously, section
17(a) of chapter 602 amendc:darticle 200a to provide that only judges
retired under the judicial :retirementsystem who make an election to
serve on assignment as a judicial officer are prohibited from such
court appearances. Chapter 602, section 17(a) specified that the
election must be made ,vLthin 90 days after retiring and is
irrevocable.
The assignment of statutory county court judges is authorized and
governed by the Court Admixtstration Act. The dominant consideration
in construing that statut'z is the intent of the legislature. See
Calvert v. Texas Pi e Line Co., 517 S.W.2d 777 (Tex. 1974). Arti=
200a-1, section 4.014, shich specifies the judges subject to
assignment, includes a retired statutory county court judge who
certifies a willingness to serve and a willingness to comply with the
same prohibition relating to the practice of law imposed by section
44.005, subtitle E of Title llOB, on the judges who are retired under
the judicial retirement syrttem. Statutory county court judges are not
included in the state judicial retirement system and the provisions of
subtitle E are not directly applicable to them. The Court
Administration Act, however, made the provisions of section 44.005
p. 2324
Honorable Jim D. Rudd - Paf;e3 (JM-506)
I- ;;ply5to statutory county icourt judges by its reference to section
. .
Reference statutes are an approved method of legislation. See
Trimier v. Carlton, 296 :S.W. 1070, 1074 (Tex. 1927). It is-;;;;
established rule of statutory construction that a statute which adopts
the provisions of another fitatuteby specific reference to the statute
or provisions that are adopted has the same effect as though the
statute or provisions adopted had been incorporated bodily into the
adopting statute. A statute of specific reference incorporates such
provisions only as they I!xist at the time of adoption unless the
language of the adopting act evidences legislative intention that the
referenced statute was adopted as it then existed and as it might
See St. I?aulMercury Insurance Co. v. Billlot, 342
later be amended. ---
S.W.2d 161, 163 (Tex. Civ. APP. - Beaumont 1960, writ ref'd); Attorney
General Opinions JM-237 (IL984);H-294 (1974). Texas courts have
stated that a statute by reEerence to another statute may incorporate
in it the provisions of fcrmer law, although the former law may have
expired or may have been ,capealed. A law so referred to in another
law, and made a part of it, does not operate by its inherent force,
but takes effect from the statute in which it is incorporated.
Western Casualty 6 Surety '2. v. Young, 339 S.W.2d 277 (Tex. Civ. App.
- Beaumont 1960, writ ref'tl). It is our opinion that the legislature,
F by the enactment of the Court Administration Act, intends the
eligibility of statutory county court judges for assignment to be
dependent on their complfance with the language in former section
44.005, which states that I:heymay not appear and plead as an attorney
in any court in this state,
To be eligible for assignment, section 4.014(3) of the Court
Administration Act requirt!a;a statutory county court judge also to
certify to the presiding 'ctdgea willingness to serve on assignment,
but the Court Administrat& Act imposes no deadline on the date of
such certification. Section 17(a) of chapter 602 amended article 200a
to require a retiree under the state judicial retirement systems to
make an election to be a judicial officer by submitting written notice
of the election to the chbef justice of the Supreme Court within 90
days after retiring. After making such an election, the person could
never again practice in the courts of this state. Art. 200a. S4a.
See also Government Code Title 2, §75.001 (election to remain as
judicial officer by retire'sunder subtitle E, Title 1lOB. V.T.C.S.).
A question has been raised as to whether the provisions of
article 200a, section 4a. as enacted by chapter 602, apply to the
election to serve on assignment by a retired statutory county court
judge. We conclude that the legislature does not intend the
provisions of article 200a, section 4a. to,apply to retired statutory
county court judges. Article 200a. section 4a, applies directly only
to retirees under the state judicial retirement system. We find no
p. 2325
Honorable Jim D. Rudd - Pag? 4 (JM-506)
indication in the Court Administration Act that the legislature
intended to adopt the provisions of article 200a by reference,
especially since the Court .AdministrationAct expressly repealed all
of article 200a effective on January 1. 1986. Acts 1985, 69th Leg.,
ch. 732. 05. at 5309.
SUMMARY
The Court Administration Act does not require a
retired statutory #countycourt judge who wishes to
serve on assignmc:c;tto make an election to serve
within 90 days af'terhis retirement. but requires
compliance with former section 44.005, Title llOB,
V.T.C.S.
Jzh
MATTOX
Attorney General of Texas
JACK BIGHTOUER
First Assistant Attorney Gen,eral
MARY KELLER
Executive Assistant Attorney General
ROBERT GRAY
Special Assistant Attorney G,eneral
RICK GILPIN
Chairman, Opinion Committee
Prepared by Nancy Sutton
Assistant Attorney General
p. 2326