Untitled Texas Attorney General Opinion ( 1975 )

TRE A’ITORNEY GENERAL
OF TEXAS
Aus-rm. T-s 78711
February 21, 1975
The Honorable Everett L. Anschute Opinion No. H- 537
Executive Secretary
Employees Retirement System of Texas Re: Computation of Judicial
Box 12337, Capitol Station Retirement Benefits.
Austin, Texas 78711
Dear Mr. Anschutz:
You have requested our opinion concerning the construction of that
portion of article 6228b, section 2(a), V. T. C. S., which provides for an
addition of ten percent of a judge’s salary to his retirement payments.
Article 6228b, section 2(a), provides in pertinent part:
An additional ten per cent (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; and (3) those in office
on September 1, 1967, who then are or during
their current term of office will be seventy (70)
or more years of age and who retire at or before
the end of their current term of office: . . .
You ask whether a judge is entitled to the additional ten per cent
when he began his first six year term on January 1, 1963, began an
additional six year term on January 1, 1969, reached 70 years of age on
November 27, 1971, completed 10 years service on January 1, 1973, and
served his entire second term ending December 31, 1974.
p. 2418
The Honorable Everett L. Anschuta page 2 (H-537)
It is apparent under these facts that the judge is not entitled to
the additional ten per cent. He did not retire at or before age 70 and
is not so entitled under (1). While he was “not eligible by length of
service to retirement benefits at age 70, ” he did not retire “immediately
upon becoming eligible” (the tenth anniversary of his original election)
and therefore is not entitled under (2). Nor did he become 70 during
his current (as of Sept. 1, 1967) term of office, “current” meaning
“now passing, present in its course, as the current month, ” Pecos
Mercantile Co. v. Texlite, Inc., 65 S. W. 2d 811 at 812 (Tex. Civ. App.
--Dallas, 1933), aff’d. 96 S. W. 2d 73 (Tex. Sup. 1936), and therefore
is not entitled under (c). Consequently, it is our opinion that a judge
is not entitled to the additional ten per cent under these facts.
SUMMARY
Where a judge neither retired at or before
the age of 70, nor retired immediately upon
becoming eligible, and did not become 70 years
of age during his term of office which included
September 1, 1967, he is not eligible for the
additional ten per cent provided by article 6228b,
V. T. C. S.
c/ Attorney General of Texas
C. ROBERT HEATH, Chairman
Opinion Committee
lg
p. 2419