Untitled Texas Attorney General Opinion ( 1963 )

Honorable Gordon H. Lloyd
Executive Secretary
Employees'Retirement System of Texas
Austin 11, Texas
oplnlon~ N& c- 135
Re: Whether's former member of
the Judicial Retirement Sys-'
ternis eligible for a'retire-
ment annuity,under the stated
Dear Mr.Lloyd: facts.
You have requested the opinion of th~isoffice as to the
retirement status of a,certain former judge. The following is
quoted from your letter of request:
"Former Judge John'A. Rawlins had ac-'
cumulated 20 years of service on the bench
and was defeated for re-election and terml-
nated service on the bench on December 31,
1954. His service was cancelled, and he
ceased to be a Judge and a member of the
Retirement System2 at that date. L andatory
refund was required, since herdid not have
24 years'of service and had not'attained the
age of 65. The amount of $2,1@.43, as ap-
proved by chief Justice of the Supreme Court
J;,E. Hickman, was refunded'in January of
1955. "
You report that Judge Rawlins has now made,application for
retirement benefits under the provisions of Senate Bill 268
of the 58th Legislature, whereby Section 2 of Article 6228b,
Vernon's Civil Statutes, was made to read as follows:
"Sec. 2. Any judge'in this state may, at
his option, retire from regular active se~rvlce
after attaining the age of sixty-five (65) years
and after serving eon one or more of the courts
of this state at least ten (10) years continuous-
ly or otherwise, provided that his last service
prior to retirement shall be continuous for a
-668-
Hon. Gordon H, Lloyd, Page 2 (C-135)
period of not less than one year.
who has served on one or more of the tour
=yF
of this state ab least eighteen (lo) years,
continuously or otherwise, shall ft ttain-
I th f I t -five (65) ye&Serb: quall-
fy!d f&a%?reie%Ypay under this Alt and
for purposes of 'computinghis retireme& pay,~
the annual salary he last received while serv-
ing on a court of this state shall be consider-
ed the amount he was receiving from the State
of Texas at the time of retirement. . . .'
(hlphasls supplied).
Prior to the adoption of the above quoted amendment,
the Judicial Retirement Act (Article 6228b, V.C.S.) required
that a judge have 24 years of service, the last ten of which
must have been continuous, in order to qualify for retirement
pay under the'Act. At the time of his departure from the
bench in 1954, Judge Rawlins had accumulated 20 years of ser-
vice, which was not sufficient to entitle him to retirement
pay under the then existing Judicial Retirement Act. His mem-
bership In the Retirement System was cancelled, and his'contri-
butions were returned under the provisions of Section 6 of the
Judicial Retirement Act, which reads as follows:
"Sec. 6. Should any Judge of any Court of
this State die, resign or cease to be a Judge of
a Court of this State, except in the event of his
appofntment or'election to a Court of higher rank,
prior to the time he shall have been retired as
provided under the provisions of this Act, the
amount of hissaccumulated contributions shall be
paid to his beneficiary nominated by written
designation duly filed with the Chief Justice of
the Supreme Court, or to him, as the case may be.
Frovided, however, that if he later beoomes'a
Judge of a Court of this State he must pay back
to the State the amount of the contributions which
he had heretofore received before being entitled
to re;irement pay under the provisions of this Act.
. . .
There is no question raised as to Judge Rawlins' failure
to qualify for retirement under the Judicial Retirement Act in
force in 1954. If he were now an aotive jurist, he would have
sufficient service to retireunder the resent requirements of
the Judicial Retirement Act. But to say%Fim is 20 years'
service on the bench, terminating in 1954, now qualifies him
-669-
Hon. Gordon H. Lloyd, page-3'(C-235)
for retirement under an smendatoryactpassed In 1963 requires
a retroactive interpretation of the Act.
The general rule is that where an act is amended as to
but one section, the original provisions appearing in the amend-
ed act are to be regarded as having been the law since they
were first enacted, and as still speaking from that time, while
the new provisions are to'be construed as enact~edat the time
the amendment took effect. Shipley v. Floydada Independent
School District, 250 S.W. 159 (Tex.Comm.App. 1923). Further,
a statute is aTways held to operate prospectively only, unless
a contrary construction is evidently required by plain and un-
equivocal language in the statute. Government Personnel Mutual
Life Insurance Co, v. Wear, 151 Tex.'454 251 S W 2d 525 (lq52r;
Rockwall County v. Kaufman County 69 Tei. 172 '6'S.W. 431
71 Garrett v. Texas Employe& Insurance &sociation, 226
2h 663 (T Civ.App. 1950 error ref ) Th lgb3 amend-
ment to the Jugiial, Retiremen; Act contain; no language which
would indicate a retroactive Intent on the part of the Legisla-
ture.
We must observe that Judge Rawlins cannot be said to
have a vested interest in the Retirement System, Inasmuch as
he was, by virtue of the terms of the Act, removed as a member
on the date he left office as a District Judge, and he has not
brought himself back within the~terms.of the Act in the manner
provided in Section 6 of Article 6228b, Vernon's Civil Stat-
utes.
In accordance with the foregoing, it Is the opinion of
this office that former Judge John A. Rawlins is not eligible
for retirement benefits under the Judicial Retirement Act as
amended by the 58th Legislature. He may only qualify for re-
tirement benefits by cornlying with the specific provisions of
Section 6 of Article 622 8b, Vernon's Civil Statutes.
SUMMARY
The 1963 amendment to the Judicial
Retirement Act (Art. 6228b, V.C.S.)
functions prospectively only, and
can have no effect on the retire-
ment status of a former district
judge who withdrew from the Retire-
-670-
Hon. Gordon H. Lloyd, page k(C-142)). ,,,~,,
ment System prior to the passage
of the 'kunendment;
Yoqrs very truly,
WAGGONER CARR
Attorney General
?&de
Assistant
MLQ:zt:ms
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
John Reeves
W. 0. Shultz
Linward Shivers
Gordon Appleman,
APPROVED FOR TKEAlTORNEY GENERAL
By: Stanton Stone