Can a senior status federal judge perform a wedding ceremony in Texas?

Plain-English summary

The Jefferson County Criminal District Attorney asked the Attorney General whether a "senior status" federal judge who has been designated and assigned to hold court in Texas may conduct a marriage ceremony in Texas. A senior status judge, as the request described it, is one who has not resigned from the bench but has retired from regular active duty service while continuing to render substantial judicial service. In this case, the Chief Judge of the Fifth Circuit had designated the judge to hold court in the Eastern District of Texas during 2012, certified that the judge performed work equal to an average active judge, and allocated him a full staff based on his caseload.

Section 2.202(a)(4) of the Family Code lists the judges and justices who may conduct a marriage ceremony, including "judge or magistrate of a federal court of this state." The Family Code does not define that phrase, and no Texas court decision addressed it, so the opinion looked to federal law for the common meaning. Under 28 U.S.C.A. § 371, a federal judge who retires from regular active service "may retain the office" if he meets the statute's requirements and then "shall have all the powers of a judge of the court," with only minor restrictions.

The opinion drew on federal case law: the United States Supreme Court held in 1934 (Booth v. United States) that a judge who retires but accepts senior status "does not surrender his commission, but continues to act under it," a federal appeals court (United States v. Moore) said a judge who retires without resigning retains his office, and the Supreme Court more recently treated a senior judge on an appellate panel as a life-tenured federal judge (Nguyen v. United States). Reading the Family Code phrase against that background, the opinion concluded that a senior status federal judge who meets the requirements of 28 U.S.C.A. § 371 continues to be a "judge or magistrate of a federal court of this state" and is therefore authorized to conduct marriage ceremonies in Texas.

The opinion distinguished its earlier Opinion GA-0948, which had concluded a "retired federal judge" is not authorized under the Family Code. The senior status judge here, unlike a fully retired one, keeps his commission and continues to act under it.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

Senior status federal judges (as the opinion described it): The opinion concluded that a senior status federal judge meeting the requirements of 28 U.S.C.A. § 371 is a "judge or magistrate of a federal court of this state" under Family Code section 2.202(a)(4) and is therefore authorized to conduct marriage ceremonies in Texas.

The requesting district attorney and county officials (as the opinion described it): The opinion answered the question by distinguishing senior status from full retirement, explaining that a senior status judge retains his commission and judicial powers.

Couples and those arranging marriages (as the opinion described it): The opinion identified a qualifying senior status federal judge as among the officials authorized to perform a marriage ceremony under the Family Code's list.

Common questions

Can a senior status federal judge legally marry a couple in Texas?
The opinion concluded yes, if the judge meets the requirements of 28 U.S.C.A. § 371, because such a judge is a "judge or magistrate of a federal court of this state" under Family Code section 2.202(a)(4).

How is a senior status judge different from a retired federal judge?
The opinion explained that a senior status judge has not resigned and retains his commission and judicial powers, while an earlier opinion (GA-0948) had concluded a fully retired federal judge is not authorized to conduct marriages under the Family Code.

What did federal law have to do with a Texas marriage question?
Because the Family Code did not define "judge or magistrate of a federal court" and no Texas court had addressed it, the opinion looked to federal law (28 U.S.C.A. § 371 and federal cases) for the phrase's common meaning.

Who else can perform a marriage ceremony in Texas?
The opinion quoted Family Code section 2.202(a)(4), which lists various state judges and justices (including retired ones), justices of the peace, municipal court judges, and judges or magistrates of a federal court of this state.

Background and statutory framework

Family Code section 2.202(a)(4) enumerates the judicial officers authorized to conduct a marriage ceremony, ending with "judge or magistrate of a federal court of this state." The opinion applied the rule that undefined statutory terms are read by their common meaning (Traxler v. Entergy Gulf States, Inc.), and, finding no Texas authority on the phrase, turned to federal law. Title 28 U.S.C.A. § 371 lets a federal judge who retires from regular active service retain the office and exercise a judge's powers; section 296 describes the limited restrictions on a designated and assigned judge, restrictions that are themselves relaxed when the judge has performed enough work, as the certification here showed.

The federal authorities the opinion relied on were Booth v. United States (a judge accepting senior status does not surrender his commission), United States v. Moore (a judge who retires without resigning retains his office), and Nguyen v. United States (treating a senior judge as a life-tenured federal judge). The opinion also distinguished its prior Opinion GA-0948, which addressed a fully retired federal judge.

Citations

Cases:

• Traxler v. Entergy Gulf States, Inc., 376 S.W.3d 742, 747 (Tex. 2012)
• Booth v. United States, 291 U.S. 339, 350-51 (1934)
• United States v. Moore, 101 F.2d 56, 58 (2d Cir. 1939)
• Nguyen v. United States, 539 U.S. 69, 72 (2003)

Texas Attorney General opinion referenced:

• Tex. Att'y Gen. Op. No. GA-0948 (2012)

Statutes:

• Tex. Fam. Code Ann. § 2.202(a)(4) (West Supp. 2012)
• 28 U.S.C.A. §§ 371, 296 (2012)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0982
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2013/ga0982.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

December 10, 2012

The Honorable Tom Maness Opinion No. GA-0982
Jefferson County Criminal District Attorney
1001 Pearl Street, 3rd floor Re: Whether a senior status federal judge who
Beaumont, Texas 77701 has been designated and assigned to hold court
in Texas is authorized to conduct a marriage
ceremony in Texas (RQ-1079-GA)

Dear Mr. Maness:

You ask whether a senior status federal judge who has been designated and assigned to hold court in Texas is authorized to conduct a marriage ceremony in Texas.[1]

Section 2.202 of the Family Code describes those judges and justices who may conduct a marriage ceremony:

(4) a justice of the supreme court, judge of the court of criminal appeals, justice of the courts of appeals, judge of the district, county, and probate courts, judge of the county courts at law, judge of the courts of domestic relations, judge of the juvenile courts, retired justice or judge of those courts, justice of the peace, retired justice of the peace, judge of a municipal court, or judge or magistrate of a federal court of this state.

TEX. FAM. CODE ANN. § 2.202(a)(4) (West Supp. 2012) (emphasis added). In Attorney General Opinion GA-0948, this office concluded that a "retired federal judge" is not authorized to conduct a marriage ceremony in Texas. Tex. Att'y Gen. Op. No. GA-0948 (2012) at 2. The opinion reasoned that the term "retired justice or judge of those courts," as used in subsection 2.202(b), does not include a retired federal judge. Id.

Your question presents additional facts not before us in Opinion GA-0948. You describe a "senior status federal judge" as one who "has not resigned from the bench," but has retired only "from regular active duty service but [has continued] rendering substantial judicial service as a senior judge." Brief at 2. You indicate that in December 2011, the Honorable Edith Jones, Chief Judge of the Fifth Circuit Court of Appeals, designated and assigned the judge about whom you inquire "to hold court in the Eastern District of Texas" during 2012, and that Judge Jones thereafter "certified that [the judge] performed judicial and court-related duties equal to the work of an average judge in active service." Id. at 1-2. Moreover, the judge was allocated a full staff through fiscal year 2013 "based upon his caseload disposition record." Id. at 2.

When construing statutes, we look to the common meaning of the words used by the Legislature. Traxler v. Entergy Gulf States, Inc., 376 S.W.3d 742, 747 (Tex. 2012) (courts "ordinarily rely on the common meaning of the words chosen by the Legislature"). Your question requires us to determine whether the Legislature's use of the phrase "judge or magistrate of a federal court" includes a senior status federal judge. The Family Code does not define the phrase, nor do any decisions of Texas courts shed light on the question. Thus, we naturally look to federal law for guidance on the common meaning of the phrase "judge or magistrate of a federal court."

Under federal law, a federal judge who has retired from regular active service "may retain the office" so long as he or she meets the requirements of federal law. 28 U.S.C.A. § 371 (2012). Such an individual "shall have all the powers of a judge of the court," with only minor restrictions.[2] In a 1934 case, the United States Supreme Court held that a judge who has retired but accepted senior status under federal law "does not surrender his commission, but continues to act under it." Booth v. United States, 291 U.S. 339, 350-51 (1934); see also United States v. Moore, 101 F.2d 56, 58 (2d Cir. 1939) ("When a United States judge retires without resigning, he retains his office."). More recently, the Supreme Court has observed that a senior judge serving on an appellate court three-judge panel is "of course" a life-tenured federal judge. Nguyen v. United States, 539 U.S. 69, 72 (2003). Thus, both federal law and long-standing federal judicial authority confirm that a senior status federal judge meeting the requirements of 28 U.S.C.A. § 371 continues to be a "judge or magistrate of a federal court of this state" and is therefore authorized by subsection 2.202(a)(4) of the Family Code to conduct marriage ceremonies in Texas.

SUMMARY

A senior status federal judge meeting the requirements of 28 U.S.C.A. § 371 is authorized to conduct a marriage ceremony in Texas.

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chairman, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee

[1] Request Letter and Brief from Honorable Tom Maness, Jefferson Cnty. Criminal Dist. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Aug. 30, 2012), http://texasattorneygeneral.gov/opin ("Brief").

[2] The judge may lack "the power to appoint any person to a statutory position or to designate permanently a depository of funds or a newspaper for publication of legal notices." 28 U.S.C.A. § 296 (2012). Even this restriction is limited, however: If the judge has "performed in the preceding calendar year an amount of work equal to or greater than the amount of work an average judge in active service on that court would perform in 6 months," he or she "shall have the powers of a judge of that court to participate in appointment of court officers and magistrate judges, rulemaking, governance, and administrative matters." Id. In the situation you pose, Judge Jones has so certified. Brief at 1-2.