Employees Retirement System of Texas v. Martin Lowy ( 2021 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-20-00428-CV
Employees Retirement System of Texas, Appellant
v.
Martin Lowy, Appellee
FROM THE 419TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-18-003527, THE HONORABLE JAMES LEE CARROLL, JUDGE PRESIDING
OPINION
The Employees Retirement System of Texas (ERS) appeals from the trial court’s
judgment in favor of Judge Martin Lowy, reversing an administrative decision by ERS’s
Executive Director. We reverse the trial court’s final judgment and render judgment upholding
the Executive Director’s decision.
FACTUAL AND PROCEDURAL SUMMARY
Judge Lowy was elected to the district court bench in November 2006 and took
office January 1, 2007. He was reelected in 2010 but defeated in 2014, leaving the bench on
December 31, 2014. From January 2015 through January 2017, he regularly served as a visiting
judge by assignment, earning retirement service credit for each month in which he served. Judge
Lowy asserted that in 2014 and 2015, an ERS employee verbally advised him that if he
“commenced serving as a visiting judge immediately after the end of [his] term, and served at
least once per month for two years,” he would be eligible to retire. In late August 2016, a second
ERS employee confirmed that information verbally and via an email stating, “With continuous
service, you will be eligible to retire in January 2017 with 11 years of service,” explaining what
his annuity would be if he “retire[d] directly from the bench.” However, in early December, that
second employee informed the judge that the earlier information was incorrect and that Judge
Lowy could not retire until January 2019. Judge Lowy submitted a written application for
retirement, stating that he wished to retire on January 31, 2017, and that he had made plans
relying on the earlier statements that he would be eligible for retirement on that date. ERS
denied his request, and Judge Lowy sought a contested-case hearing. See Tex. Gov’t Code
§ 815.511.
In October 2017, an administrative law judge (ALJ) with the State Office of
Administrative Hearings issued a proposal for decision recommending that Judge Lowy’s appeal
be granted. In Proposed Conclusion of Law #6, the ALJ determined that “[a]t the time he
applied for retirement, Judge Lowy ‘held judicial office’ as that term is used in Texas
Government Code § 839.101.” 1 ERS staff objected, and the Executive Director rejected the
ALJ’s determination and ruled against Judge Lowy, adopting the staff’s Proposed Alternative
Findings of Fact and Conclusions of Law. Judge Lowy appealed to the trial court, which ruled in
his favor, concluding that the Executive Director had erred in rejecting the ALJ’s Proposed
1 Judge Lowy sought to retire under subsection (a)(1) of section 839.101, which provides
that a member of the Texas Judicial Retirement System may retire if he is sixty-five years old,
has at least ten years of service credited in the system, and “currently holds a judicial office.”
Tex. Gov’t Code § 839.101(a)(1). “[R]egardless of whether the member currently holds a
judicial office,” he may retire if he is sixty-five and has at least twelve years of service, if he has
at least twenty years of service, or if he has served at least twelve years on an appellate court and
his age plus his service credits equals at least seventy. Id. § 839.101(a)(2)-(4).
2
Conclusion of Law #6 and had committed procedural errors in adopting ERS staff’s Proposed
Alternative Findings of Fact and Conclusions of Law. The trial court held that the “meaning of
the phrase ‘holds a judicial office,’ in section 839.101(a)(1) of the Texas Government Code is a
question of law and the ERS’s interpretation of that phrase in this case is clearly wrong and does
not comport with the plain language of the statute in question.” ERS then filed this appeal.
STANDARD OF REVIEW
“The meaning of a statute is a legal question, which we review de novo to
ascertain and give effect to the Legislature’s intent.” Entergy Gulf States, Inc. v. Summers,
282 S.W.3d 433, 437 (Tex. 2009). We “consider statutes as a whole rather than their isolated
provisions” and presume that the Legislature chose the statutory language carefully, including
each word for a purpose, “while purposefully omitting words not chosen.” TGS-NOPEC
Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011).
“Where text is clear, text is determinative of [the Legislature’s] intent.” Entergy
Gulf States, 282 S.W.3d at 437. In other words, “[i]f a case can be decided according to the
statute itself, it must be decided according to the statute itself. This is a bedrock principle.”
BankDirect Cap. Fin., LLC v. Plasma Fab, LLC, 519 S.W.3d 76, 78 (Tex. 2017). We employ
this rule “unless enforcing the plain language of the statute as written would produce absurd
results.” Entergy Gulf States, 282 S.W.3d at 437. If the language chosen by the legislature is
ambiguous, we then “resort to rules of construction or extrinsic aids.” Id. (quoting In re Estate of
Nash, 220 S.W.3d 914, 917 (Tex. 2007)). If “there is vagueness, ambiguity, or room for policy
determinations in a statute or regulation, . . . we normally defer to the agency’s interpretation
unless it is plainly erroneous or inconsistent with the language of the statute, regulation, or rule.”
3
TGS-NOPEC Geophysical, 340 S.W.3d at 438. Such deference is not “conclusive or unlimited,”
however, and we defer only “to the extent that the agency’s interpretation is reasonable, and no
deference is due where an agency’s interpretation fails to follow the clear, unambiguous
language of its own regulations.” Id. “If a statute uses a term with a particular meaning or
assigns a particular meaning to a term, we are bound by the statutory usage,” and we generally
give undefined terms their ordinary meaning unless a different meaning is apparent from the
term’s usage in the context of the statute. Id. at 439.
DISCUSSION
The statute in question is section 839.101(a), which provides:
(a) A member is eligible to retire and receive a service retirement annuity 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;
(2) is at least 65 years old and has at least 12 years of service credited in
the retirement system, regardless of whether the member currently holds a
judicial office;
(3) has at least 20 years of service credited in the retirement system,
regardless of whether the member currently holds a judicial office; or
(4) has served at least 12 years on an appellate court and the sum of the
member’s age and amount of service credited in the retirement system
equals or exceeds the number 70, regardless of whether the member
currently holds a judicial office.
Tex. Gov’t Code § 839.101(a). Judge Lowy sought to retire under subsection (a)(1), asserting
that in serving as a visiting judge by assignment, he “held” a judicial office, but the Executive
4
Director disagreed, concluding that Judge Lowy “did not ‘[hold] a judicial office’ as that term is
used” in section 839.101(a). On appeal, ERS asserts that visiting judges sitting by assignment
are excluded from the phrase “currently holds a judicial office” under a plain reading of the
language. It further argues that if the statutory language is ambiguous, we should defer to its
interpretation of the phrase.
The phrase “currently holds a judicial office” is not defined in chapter 839, or, for
that matter, in chapter 838, 2 and dictionary definitions of the common words “hold” and “office”
are of little use. 3 However, the context for our analysis is the Texas judiciary, in which judges 4
are elected or appointed by the Governor to fill unfinished terms. See Tex. Const. art. V, §§ 7,
28 (district judge is elected and shall “hold his office” for a four-year term; “[a] vacancy in the
office of Chief Justice, Justice, or Judge of the Supreme Court, the Court of Criminal Appeals,
2 As we will discuss later, Judge Lowy supports his position by pointing to section
838.101, which provides that “[m]embership service is credited in the retirement system for each
month in which a member holds a judicial office and for which the member makes the required
contribution.” Tex. Gov’t Code § 838.101.
3 “Hold” is defined in relevant part as “to have as a privilege or position of
responsibility,” Hold, Meriam-Webster, Merriam-Webster.com/dictionary/hold (last visited July
29, 2021); “to have the ownership or use of,” “keep as one’s own,” or “occupy,” Hold,
Dictionary.com, www.dictionary.com/browse/hold (last visited July 29, 2021); and “[t]o conduct
or preside at,” to “direct the operations of,” or “to be in possession and administration of,” Hold,
Black’s Law Dictionary (11th ed. 2019). An “office” is “a special duty, charge, or position
conferred by an exercise of governmental authority and for a public purpose,” “a position of
authority to exercise a public function and to receive whatever emoluments may belong to it,” or
“a position of responsibility or some degree of executive authority,” Office, Merriam-Webster,
www.merriam-webster.com/dictionary/office (last visited July 29, 2021); “a position of duty,
trust, or authority, especially in the government, a corporation, a society, or the like,” or
“employment or position as an official,” Office, Dictionary.com,
www.dictionary.com/browse/office (last visited July 29, 2021); and a “position of duty, trust, or
authority, esp. one conferred by a governmental authority for a public purpose,” Office, Black’s
Law Dictionary (11th ed. 2019).
4 Although many of the statutes we cite refer to both judges and justices, for simplicity’s
sake, we will use “judge” throughout this opinion to refer to judges and justices alike.
5
the Court of Appeals, or the District Courts shall be filled by the Governor until the next
succeeding General Election,” at which time “the voters shall fill the vacancy for the unexpired
term”). Thus, a “judicial office” is the position to which a judge is elected or appointed. The
question before us is what it means to “hold” such office.
Under chapter 74, subchapter C of the government code, see generally Tex. Gov’t
Code §§ 74.041-.62, former and retired judges, as well as “active” judges, may be assigned to
benches across the state to address “accumulated business” as needed, id. §§ 74.052 (“Judges
may be assigned in the manner provided by this chapter to hold court when necessary to dispose
of accumulated business in the region.”), .054 (judges who may be assigned include “active
district, constitutional county, or statutory county court” judges, senior judges who have
consented to assignment, and “former” district judges). An “[a]ctive judge” is “a person who is a
current judicial officeholder,” while a “[f]ormer judge” is “a person who has served as an active
judge in a district, statutory probate, statutory county, or appellate court, but who is not a retired
judge.” Id. § 74.041(4), (5) (emphasis added). Thus, the provisions under which Judge Lowy
was assigned to sit distinguish a current officeholder from a former officeholder.
A distinction between a judge who “holds office” and a former judge sitting by
assignment also appears in the Texas Constitution, which imposes a mandatory retirement age,
establishes a State Commission on Judicial Conduct, and provides that:
Any Justice or Judge of the courts established by this Constitution or created by
the Legislature as provided in Section 1, Article V, of this Constitution, may,
subject to the other provisions hereof, be removed from office for willful or
persistent violation of rules promulgated by the Supreme Court of Texas,
incompetence in performing the duties of the office, willful violation of the Code
of Judicial Conduct, or willful or persistent conduct that is clearly inconsistent
with the proper performance of his duties or casts public discredit upon the
6
judiciary or administration of justice. Any person holding such office may be
disciplined or censured, in lieu of removal from office, as provided by this
section. Any person holding an office specified in this subsection may be
suspended from office with or without pay by the Commission immediately on
being indicted by a State or Federal grand jury for a felony offense or charged
with a misdemeanor involving official misconduct. On the filing of a sworn
complaint charging a person holding such office with willful or persistent
violation of rules promulgated by the Supreme Court of Texas, incompetence in
performing the duties of the office, willful violation of the Code of Judicial
Conduct, or willful and persistent conduct that is clearly inconsistent with the
proper performance of his duties or casts public discredit on the judiciary or on
the administration of justice, the Commission, after giving the person notice and
an opportunity to appear and be heard before the Commission, may recommend to
the Supreme Court the suspension of such person from office. The Supreme
Court, after considering the record of such appearance and the recommendation of
the Commission, may suspend the person from office with or without pay,
pending final disposition of the charge.
Tex. Const. art. V, § 1-a(6)(A) (emphases added). Subsection 1-a(6) goes on to provide that:
The law relating to the removal, discipline, suspension, or censure of a Justice or
Judge of the courts established by this Constitution or created by the Legislature
as provided in this Constitution applies to a master or magistrate appointed as
provided by law to serve a trial court of this State and to a retired or former
Judge who continues as a judicial officer subject to an assignment to sit on a
court of this State. Under the law relating to the removal of an active Justice or
Judge, the Commission and the review tribunal may prohibit a retired or former
Judge from holding judicial office in the future or from sitting on a court of this
State by assignment.
Id. § 1-a(6)(C) (emphasis added).
However, the fact that a retired or former judge may sit by assignment “as a
judicial officer” does not require a conclusion that the judge “holds office.” See id. Indeed,
subsection (6)(C) states that a retired or former judge who continues as a judicial officer and
commits misconduct may be prohibited “from holding judicial office in the future or from sitting
on a court of this State by assignment,” id. (emphasis added), thus explicitly distinguishing
7
someone who “holds judicial office” from someone who sits by assignment. Further, we cannot
ignore the fact that subsection (6)(C) would be unnecessary if a retired or former judge sitting by
assignment were already considered to be “holding the office” of the court to which he is
assigned. See id.
Our conclusion that a former or retired judge sitting by assignment is not
“holding” the judicial office to which she is assigned is borne out by a survey of other statutes
related to the judiciary and judicial retirement. For instance, section 834.102(b) provides for a
ten-percent annuity increase for a retired judge who, on the effective date of her retirement, “has
not been out of judicial office for more than one year” or “has served as a visiting judge in this
state” in the last year. Tex. Gov’t Code § 839.102(b). The second provision—related to visiting-
judge service—would be unnecessary if a visiting judge is considered to “hold judicial office.”
And section 839.102 bases a judge’s retirement annuity on the annual salary “being paid to a
judge of a court of the same classification as the last court to which the retiring member held
judicial office,” while specifying that “[t]he salary earned by a person as a visiting judge under
Chapter 74 may not be used to determine the person’s service retirement annuity under this
section.” Id. § 839.102 (emphasis added). Finally, section 71.013, discussing the Texas Judicial
Council, states that “[t]he chief justice of the supreme court and the presiding judge of the court
of criminal appeals are members of the council as long as they hold those offices.” Id.
§ 71.013(a) (emphasis added).
Thus, the constitutional and statutory language that governs the court system as a
whole and the assignment of former and retired judges in particular indicates that a former or
retired judge assigned to the bench, although he is a judicial officer and may exercise the powers
of the office, id. § 74.059, does not hold the judicial office to which he is temporarily assigned.
8
Judge Lowy points to section 838.101, which provides that “[m]embership service
is credited in the [judicial] retirement system for each month in which a member holds a judicial
office and for which the member makes the required contribution.” Id. § 838.101. Because a
former judge sitting by assignment receives service credit towards retirement for each month in
which he sits by assignment, Judge Lowy argues that the judge must be “holding a judicial
office” in each month for which he receives service credit. He insists that because sections
838.101 and 839.101 use substantially the same language, the phrase must mean the same thing
in both statutes, meaning that we must conclude that an assigned judge “currently holds judicial
office” for purposes of section 839.101.
At first blush, Judge Lowy’s argument is attractive or at least indicates some
ambiguity within the relevant statutes. However, when we consider the full context of the
statutory assignment of judges, the apparent conflict between ERS’s application of section
838.101 and section 839.101 resolves itself. A former judge sitting by assignment under
chapter 74 “shall receive . . . the same amount of salary, compensation, and expenses that the
regular judge is entitled to receive from the county and from the state for those services.” Id.
§ 74.061(d). Because a “regular” judge (elected or appointed) is entitled to receive service credit
towards retirement for each month in which she holds office, a former judge assigned to “dispose
of accumulated business” in that court must receive that same kind of “compensation.” 5 In other
5 Assigned judges are entitled to salary and compensation, and a former or retired judge
is entitled to “the same amount of salary, compensation, and expenses that the regular judge is
entitled to receive.” See Tex. Gov’t Code § 74.061(a), (d). Thus, the “compensation” to which
an assigned judge is entitled must include any additional remuneration beyond salary that would
be due to the regular judge, including credit towards retirement. See id. § 838.101; see also Tex.
Att’y Gen. Op. H-1021, at *1 (1977) (“‘compensation’ may be said to embrace such accrual of
creditable service toward retirement as a ‘regular judge’ receives”).
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words, Judge Lowy and similarly situated former judges do not accrue membership service credit
for each month in which they sit by assignment because they “hold” judicial office per
section 838.101(a) but instead because section 74.061 requires that they receive the same
compensation, including service credit, that “the regular judge is entitled to receive.”
In light of the statutory framework under which former judges are appointed to sit
by assignment and compensated for that work, we conclude that the plain language of “currently
holds a judicial office,” as used in section 839.101(a)(1), refers to an “active” judge, not to a
former judge sitting by appointment. In other words, a judge who seeks to retire under
subsection (a)(1) must retire directly from her elected or appointed position on the bench.
Assignment under chapter 74 does not equate to “currently hold[ing] a judicial office.”
Even if we determined that the statutory language is ambiguous, we would still
reach the same conclusion after applying the rules of construction or extrinsic aids—particularly
in light of the Texas Supreme Court’s holding in Werlein v. Calvert, 460 S.W.2d 398 (1970)
(orig. proceeding)—and after providing due deference to ERS’s interpretation of section
839.101. See TGS-NOPEC Geophysical, 340 S.W.3d at 438. ERS states that its policy has long
been guided by Werlein and by Attorney General Opinion H-1149, see Tex. Att’y Gen. Op.
H-1149 (1978), 6 and we thus first consider those opinions in determining whether ERS’s
construction of the statute is reasonable.
In Werlein, the Texas Supreme Court was asked to determine whether a retired
judge was eligible to sit by assignment following a 1965 legislative amendment imposing a
6 Opinions by the Office of the Attorney General are persuasive but not binding.
Commissioners Ct. of Titus Cnty. v. Agan, 940 S.W.2d 77, 82 (Tex. 1997); In re Texas Dep’t of
State Health Servs., 278 S.W.3d 1, 4-5 (Tex. App.—Austin 2008, orig. proceeding) (“Opinions
of the attorney general, while not binding on the judiciary, are persuasive and are entitled to
consideration.”).
10
mandatory retirement age. 460 S.W.2d at 398-99. Under the amendment, the Legislature was
required to provide for the retirement, compensation, and reassignment to active duty of the
“Justices and Judges of the Appellate Courts and [Judges of the] District and Criminal District
Courts,” and “[t]he office of every such Justice and Judge shall become vacant when the
incumbent” turned seventy-five, except for provisions related to certain “incumbents.” Id.
at 399. The court held:
All of the justices and judges of the various courts mentioned in the first sentence
of the amendment thus have at least two things in common: (1) they serve for
terms of definite duration, and (2) vacancies in their offices are to be filled by the
Governor until the next general election.
The second sentence of the amendment declares that the office ‘of every such
justice and judge’ shall become vacant when the incumbent reaches the age of 75
years. When the language just quoted is given its natural meaning, it obviously
refers to the justices and judges mentioned in the first sentence who hold office
for terms of definite duration. If there were any doubt in this respect, it would be
dispelled by the provision that ‘the office * * * shall become vacant.’ This makes
it clear that the amendment is dealing with an office that will continue to exist
upon being vacated by the incumbent. A retired judge assigned to active duty is
authorized to exercise the powers of an office while serving on assignment. He
does not by virtue of the assignment, however, hold an office that could possibly
‘become vacant’ upon termination of his powers either by death or operation
of law.
Id. at 401 (emphases added). Thus, Werlein supports ERS’s interpretation that a former judge
sitting by assignment does not “currently hold judicial office.” See id.In Opinion H-1149, the Attorney General was asked several questions related to
the administration of the judicial retirement system, including whether a former judge sitting by
assignment could obtain a ten-percent annuity increase applicable to judges who had “been out
of office” for less than one year when they retired. Tex. Att’y Gen. Op. H-1149, at *1-2. The
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Attorney General concluded, “We do not believe, therefore, that a former district judge serving
on special assignment occupies an ‘office’ for purposes of” obtaining the annuity increase, and,
“In our opinion, the benefit is available only to judges who retire from office, not those who
retire from special assignment.” Id. at *2 (citing Werlein, 460 S.W.2d at 401).
Two other Attorney General opinions also support ERS’s interpretation and our
conclusion. In Opinion LO-93-81, ERS again asked whether a retired judge was eligible for a
ten-percent annuity increase that applied if the judge had not been “out of judicial office” for
more than a year when he retired. Tex. Att’y Gen. Op. LO-93-81, at *1 (1993). ERS made its
inquiry after article V, section 1-a(6)(C) of the Texas Constitution was amended to refer to a
former or retired judge sitting by assignment as a “judicial officer,” asking whether the
amendment changed the result of Opinion H-1149. Id. The Attorney General determined that
subsection (6)(C) did not change and in fact “reinforce[d]” the earlier opinion:
The legislature proposed adding article V, section 1-a(6)(C) to the constitution to
clarify that a retired judge sitting by assignment is not exempt from discipline by
the State Judicial Qualifications Commission. We do not believe that the
legislature intended to make a retired judge sitting by assignment a judicial officer
for purposes other than discipline. Indeed, the fact that the legislature found it
necessary to amend the constitution to clarify that a retired judge holds a judicial
office for disciplinary purposes underscores the fact that such a judge does not
hold judicial office for any other purpose. Thus, a retired judge sitting by
assignment is a judicial officer only for purposes of discipline; he or she is not a
judicial officer in the context of section 834.102(b) of the Government Code.
Accordingly, a special judicial assignment does not prolong a judge’s term of
office for purposes of section 834.102(b).
Id. at *2 (citations omitted, emphasis added). Finally, in Opinion H-1021, ERS asked whether a
former judge sitting by assignment accrues additional creditable service toward retirement. Tex.
Att’y Gen. Op. H-1021, at *1 (1977). The Attorney General noted that a former judge sitting by
12
assignment was entitled to “the same amount of compensation, salary, and expenses that the
regular judge is entitled to receive” and concluded that “such ‘compensation’ may be said to
embrace such accrual of creditable service toward retirement as a ‘regular judge’ receives.” 7 Id.
Thus, supreme court precedent and several Attorney General opinions support drawing a
distinction between viewing a former judge sitting by assignment—a “judicial officer” who may
wield the powers of the office while on assignment but who does not “hold” the office—and the
elected or appointed judge, who does “currently hold” the office. 8
Finally, we consider whether ERS’s policy conflicts with another Texas Supreme
Court case, Mitchell Energy Corp. v. Ashworth, 943 S.W.2d 436 (Tex. 1997) (orig. proceeding).
7 Judge Lowy highlights the statement in Opinion H-1021 that the statute governing the
accrual of creditable service “makes no distinction between service rendered by a regular judge
and that performed by a judge” sitting by assignment, which led the Attorney General to
conclude that a special judge sitting by assignment thus accrues creditable service. Tex. Att’y
Gen. Op. No. H-1021, at *1 (1977). Section 838.101 likewise does not specify that it only
applies to “active” or “regular” judges. However, as we have explained, a former judge sitting
by assignment is entitled to service-credit accrual not pursuant to section 838.101 but by way of
section 74.061—because he is entitled to the same compensation earned by a current
officeholder. Judge Lowy also argues that Opinion H-1149 conflicts with Opinion H-1021,
issued a year earlier, but as we read the two opinions and the relevant statutes, it is simply a
matter that the Legislature provided that former and retired judges generally earn the same
compensation as current office holders (under section 74.061) while taking pains to limit certain
specific benefits to judges who retire directly from or shortly after leaving office (such as the
annuity increase or the ability to retire with ten years of service).
8 Judge Lowy asserts that ERS actually departed from a longstanding policy in favor of
his interpretation of section 839.101(a)(1), pointing as evidence of that assertion to statements
made to him by two ERS employees to the effect that he would be able to retire under
section 839.101(a)(1). He states, “If that was the understanding of the policy held by ERS
employees working with [the judicial retirement system], it is difficult to see how there could be
some long standing policy to the contrary.” He contends that it is unlikely that those employees
“fabricate[d]” the information they provided and that it is more likely that they “were expressing
the policy of ERS as it existed at the time of their representations.” However, the fact that two
employees may have made an error or misunderstood the law or Judge Lowy’s circumstances
does not establish a policy in favor of his interpretation or cast doubt on ERS’s assertion that it
has long interpreted the statute to the contrary, relying in part on Attorney General Opinions
dating back several decades.
13
In that case, a party objected to Judge Catherine Gant, who was assigned to hear the underlying
case after the current officeholder was recused, and the supreme court considered whether the
party, who had already objected to another judge, could object to Judge Gant under section
74.053(d), which allows a party to make “unlimited objections ‘to an assigned judge who was
not a retired judge.’” Id. at 437 (quoting Tex. Gov’t Code § 74.053(d)). The court described
Judge Gant’s judicial tenure as follows:
Judge Gant had served as judge of the 360th Judicial District in Tarrant County
from 1984 until 1988, when she was defeated for reelection. She then served as
judge of the 141st Judicial District in Tarrant County from 1991 until 1994, when
she again was defeated for re-election. From 1994 to 1996, she served as a
visiting judge. Then in July of 1996, she qualified as a “senior judge” under
Section 75.001 of the Government Code.[ 9]
***
Judge Gant served two four-year terms as the regular judge of two different
district courts, having been initially appointed to fill a vacancy during the last half
year of an unexpired term, and elected and defeated twice thereafter. As a result,
Judge Gant has about eight and a half years of service as a regular district judge.
She served enough additional years as a visiting judge to qualify as a retiree, and
took senior judge status shortly before her assignment to this case.
Id. at 437, 438. The court noted that “[m]ost typically, a judge must be sixty-five years of age
and have at least ten years of creditable service to become a retiree.” Id. at 438 (citing Tex.
Gov’t Code §§ 834.101(a), 839.101). The issue in Mitchell Energy was not whether Judge Gant
had served enough time as a visiting judge to qualify as a retiree or exactly how much service
credit she had earned through sitting by assignment. But Judge Lowy, acknowledging that the
9 A “retiree . . . may elect to be a judicial officer,” and a “retiree who makes an election
under this section shall be designated a senior judge.” Tex. Gov’t Code § 75.001(a), (d).
14
discussion of Judge Gant’s service time was dicta, characterizing it as “carefully considered
dicta,” insists that “[f]rom the chronology recited by the Court, it is apparent that [Judge Gant]
retired with ten years’ service—8-1/2 years as a full time judge and 1-1/2 years as a visiting
judge,” and that, “having left her last elected judicial office at the end of 1994 with 8-1/2 years’
service, Judge Gant could not have had 12 years of creditable service at the time of her
retirement in July 1996.” However, in its SOAH filings, ERS produced a July 2, 1996 letter
from Judge Gant to Chief Justice Phillips, asking to be classified as a senior judge and stating
that she had reached the necessary age and had “fulfilled 12 years of service as a District Judge.”
It also produced Chief Justice Phillips’s response, acknowledging that Judge Gant had advised
that she had “become a retiree effective June 30, 1996,” and had elected “to be a judicial officer”
pursuant to section 75.001. Judge Lowy states that ERS produced only a “meager scrap from the
[Mitchell Energy] record” that “does not overcome the Court’s lengthy exposition of the facts,”
but as ERS notes, the Mitchell Energy opinion does not address whether Judge Gant served as a
visiting judge between 1989 and 1991, and Judge Gant’s letter indicates that she had served for
twelve years when she sought senior judge status. We do not believe that Mitchell Energy
requires us to change our reading of the language used in section 839.101(a)(1).
We sustain ERS’s issue on appeal and hold that a former judge sitting by
assignment does not “currently hold a judicial office.” Thus, the Executive Director did not err
in rejecting the ALJ’s Proposed Conclusion of Law #6 and ruling that Judge Lowy was not
eligible to retire under section 839.101(a)(1) on January 31, 2017. Because we hold that Judge
Lowy was not eligible to retire under the plain language of the statute, we need not consider the
trial court’s other determinations: that the Executive Director improperly adopted ERS’s staff’s
proposed findings of fact or conclusions of law because they did not meet the required standards
15
under the Administrative Procedures Act, relied on improper or untimely argument and evidence,
or relied on grounds not included in ERS’s notice of hearing or motion for summary disposition.
CONCLUSION
Under the plain language of section 839.101, a former judge sitting by assignment
does not “currently hold[] a judicial office.” We therefore reverse the trial court’s judgment and
render judgment affirming ERS’s Executive Director’s order that Lowy did not hold a judicial
office on January 31, 2017, and thus was not eligible to retire on that date under
section 839.101(a)(1).
__________________________________________
Darlene Byrne, Chief Justice
Before Chief Justice Byrne, Justices Baker and Smith
Reversed and Rendered
Filed: August 19, 2021
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