Do the 2001 retirement benefit increases for Texas visiting judges apply to judges who already retired?

Plain-English summary

The Employees Retirement System of Texas and the Office of Court Administration jointly asked the Attorney General whether two 2001 provisions increasing visiting judges' retirement benefits reached judges who had already retired before the law took effect. The Seventy-seventh Legislature added a 10 percent increase to the base retirement annuity for a judge who, on the effective date of retirement, either had not been out of judicial office for more than a year or had served as a visiting judge in Texas and was still within one year of the last day of that service. Those provisions, codified at Government Code sections 834.102(b) for Plan One and 839.102(b) for Plan Two, took effect January 1, 2002.

The Attorney General concluded the increases apply only going forward. The opinion rested on two points. First, a Texas statute is presumed to operate prospectively unless the Legislature expressly makes it retroactive, and nothing here did. Second, the provisions are written in the present tense: they apply where the first anniversary of the judge's last day of service "has not occurred" as of the date of retirement. That present-tense phrasing points to retirements happening on or after the effective date, not retirements already in the past.

To illustrate the difference, the opinion contrasted a court decision, Reames, where pension amendments were written in both present and past tense ("becomes or became") and so were read to reach people who had already retired. The visiting-judge provisions here used only the present tense, so they did not sweep in earlier retirees. The bottom line: sections 834.102(b) and 839.102(b) do not increase benefits for visiting judges who retired before January 1, 2002.

Currency note

This opinion was issued in 2002. 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

The Employees Retirement System and the Office of Court Administration (what the opinion held): The opinion held that sections 834.102(b) and 839.102(b) operate prospectively and increase the annuity only for visiting judges who retire after the January 1, 2002 effective date, within one year of their last day of visiting service. It told the administering agencies the provisions do not provide the increase to a visiting judge who retired before that date.

Already-retired visiting judges (what the opinion held): The opinion held that a judge who retired before January 1, 2002 was outside the reach of the new provisions and did not receive the 10 percent increase, because the statutes were written in the present tense and were presumed prospective.

Common questions

What did the 2001 law do for visiting judges?
The opinion explained it added a 10 percent increase to the base retirement annuity for a judge who, at retirement, had recently served as a visiting judge (within one year of the last day of that service) or had not been out of judicial office for more than a year.

Did the increase reach judges who had already retired?
No. The opinion concluded the provisions are prospective and apply only to judges who retire on or after the January 1, 2002 effective date.

Why did the wording matter?
The provisions said the first anniversary of the judge's last service "has not occurred" as of retirement, present tense. The opinion read that as covering retirements happening then or later, not retirements already in the past. By contrast, a statute written in both present and past tense ("becomes or became") can reach prior retirees, as in the Reames case the opinion cited.

Which plan did each section govern?
Section 834.102(b) applies to Judicial Retirement System Plan One (judges who joined before Plan Two began on September 1, 1985), and section 839.102(b) applies to Plan Two.

Background and statutory framework

The Texas Constitution provides for a judicial retirement system administered by the Board of Trustees of the Employees Retirement System. Tex. Const. art. V, § 1-a(1); art. XVI, § 67(d). There are two plans: Plan One covers persons who became state judges before Plan Two began operating on September 1, 1985, and Plan Two covers judges never eligible for Plan One or its predecessor. Tex. Gov't Code Ann. § 832.001(a) (Vernon 1994); § 837.001(a) (Vernon 1994). Sections 834.102(b) and 839.102(b) govern Plan One and Plan Two respectively, each adding a 10 percent increase to the base annuity for a member who, on the effective date of retirement, has not been out of judicial office for more than a year or has served as a visiting judge and is still within one year of the last day of that service. Tex. Gov't Code Ann. §§ 834.102(b), 839.102(b) (Vernon Supp. 2002); Act of May 26, 2001, 77th Leg., R.S., ch. 1240, §§ 3, 6, 2001 Tex. Gen. Laws 2923-25.

A statute is presumed prospective unless expressly made retrospective. Tex. Gov't Code Ann. § 311.022 (Vernon 1998); Aetna Ins. Co. v. Richardelle, 528 S.W.2d 280, 284 (Tex. Civ. App.-Corpus Christi 1975, writ ref'd n.r.e.) (a retroactive law acts upon things that are past). The opinion read the present-tense phrasing of subsections 834.102(b)(2) and 839.102(b)(2) ("has not occurred") to exclude past retirements, contrasting Reames v. Police Officers' Pension Bd., 928 S.W.2d 628, 632 (Tex. App.-Houston [14th Dist.] 1996, no writ), where amendments written in both present and past tense ("becomes or became") were read to include former as well as current transferees. See also Tex. Rev. Civ. Stat. Ann. arts. 6243g-4, § 19 (Vernon Supp. 2002) (present version of the provision cited in Reames). The opinion also relied on a prior attorney general opinion holding an amendment to the Judicial Retirement Act operated prospectively and did not affect a judge who left the system before its passage.

Citations

Statutes and constitution:

• Tex. Const. art. V, § 1-a(1); art. XVI, § 67(d)
• Tex. Gov't Code Ann. §§ 834.102(b), 839.102(b) (Vernon Supp. 2002); § 832.001(a), § 837.001(a) (Vernon 1994); § 311.022 (Vernon 1998)
• Tex. Rev. Civ. Stat. Ann. arts. 6243g-4, § 19 (Vernon Supp. 2002)
• Act of May 26, 2001, 77th Leg., R.S., ch. 1240, §§ 3, 6, 2001 Tex. Gen. Laws 2923-25

Cases:

• Aetna Ins. Co. v. Richardelle, 528 S.W.2d 280, 284 (Tex. Civ. App.-Corpus Christi 1975, writ ref'd n.r.e.)
• Reames v. Police Officers' Pension Bd., 928 S.W.2d 628 (Tex. App.-Houston [14th Dist.] 1996, no writ)

Prior Attorney General material referenced: Tex. Att'y Gen. Op. No. C-135 (1963).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0533
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2002/jc0533.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS
JOHN CORNYN

July 26, 2002

Ms. Sheila W. Beckett, Executive Director Opinion No. JC-0533
Employees Retirement System of Texas
1801 Brazos Street Re: Whether sections 834.102(b) and 839.102(b),
Austin, Texas 78711 Texas Government Code, apply to visiting judges
who retired prior to January 1, 2002
Mr. Jerry L. Benedict (RQ-0505-JC)
Administrative Director
Office of Court Administration
205 West 14th Street, Suite 600
Austin, Texas 78711-2066

Dear Ms. Beckett and Mr. Benedict:

The Seventy-seventh Texas Legislature adopted two provisions increasing the retirement benefits of certain visiting judges. See Act of May 26, 2001, 77th Leg., R.S., ch. 1240, §§ 3, 6, 2001 Tex. Gen. Laws 2923-25 (codified at TEX. GOV'T CODE ANN. §§ 834.102(b); 839.102(b) (Vernon Supp. 2002)). You ask whether these enactments increase benefits for visiting judges who retired prior to the January 1, 2002 effective date of the enactment. We answer in the negative.

The Texas Constitution provides in article V, section 1-a(1) and article XVI, section 67(d) for a judicial retirement system, to be administered by the Board of Trustees of the Employees Retirement System. See TEX. CONST. art. V, § 1-a(1); id. art. XVI, § 67(d). There are two judicial retirement system plans. Membership in Plan One is limited to persons who became judges, justices, and commissioners of state courts before Plan Two began operation on September 1, 1985. See TEX. GOV'T CODE ANN. § 832.001(a) (Vernon 1994). See also Act of May 27, 1985, 69th Leg., R.S., ch. 602, § 28, 1985 Tex. Gen. Laws 2249, 2271 (establishing Plan Two). Membership in Plan Two is limited to judges who have never been eligible for membership in Judicial Retirement System Plan One or its predecessor, the Judicial Retirement System of Texas. See TEX. GOV'T CODE ANN. § 837.001(a) (Vernon 1994). See also FISCAL NOTE, Tex. S.B. 372, 77th Leg., R.S. (2001) (explaining difference in funding of the two plans). The two sections you inquire about, Texas Government Code sections 834.102(b) and 839.102(b), apply respectively to Plan One and Plan Two. Subsections 834.102(a) and (d) establish the base service retirement annuity under Plan One, while subsection 834.102(b) provides as follows:

            (b) The retirement system shall increase by 10 percent of the amount of the applicable state salary under Subsection (a) or (d) the annuity of a member who on the effective date of retirement:

                    (1) has not been out of judicial office for more than one year; or

                    (2) has served as a visiting judge in this state and the first anniversary of the last day of that service has not occurred.

TEX. GOV'T CODE ANN. § 834.102(b) (Vernon Supp. 2002). Section 839.102(a) similarly establishes the base service retirement annuity under Plan Two, while subsection (b) provides for a 10 percent increase in the annuity of a member "who on the effective date of retirement . . . has not been out of judicial office for more than one year," or "has served as a visiting judge in this state and the first anniversary of the last day of that service has not occurred." Id. § 839.102(b). The question is whether these provisions apply only to visiting judges who retire after the January 1, 2002 effective date, within one year of their last day of service as a visiting judge, or whether it also applies to visiting judges who had already retired as of that date, within one year of their last day of service.[1]

A statute is presumed to be prospective in its operation unless expressly made retrospective. See id. § 311.022 (Vernon 1998). A retroactive law is one that is intended to act upon things that are past. See Aetna Ins. Co. v. Richardelle, 528 S.W.2d 280, 284 (Tex. Civ. App.-Corpus Christi 1975, writ ref'd n.r.e.). In our opinion, sections 834.102(b)(2) and 839.102(b)(2) are prospective statutes that apply only to visiting judges who retire after January 1, 2002, before the first anniversary of the last day of service in that capacity. Both provisions use the present tense, providing that the first anniversary of a judge's last day of service "has not occurred" as of the date of retirement, thus excluding retirements that took place in the past. See TEX. GOV'T CODE ANN. §§ 834.102(b)(2), 839.102(b)(2). By way of comparison, in Reames v. Police Officers' Pension Bd., 928 S.W.2d 628 (Tex. App.-Houston [14th Dist.] 1996, no writ), the court determined that certain amendments to the Police Officers Retirement Plan facially indicated that they were to apply retroactively. The amendments read as follows:

            An employee of the city who has retired under this article, . . . and is or has been transferred by action of the city . . . becomes or became as of the effective date of the transfer an active member of the plan under this article from which the person earlier retired.

Reames, 928 S.W.2d at 632 (citing former articles 6243g-1, § 16A and 6243g-3, § 25A of the Revised Civil Statutes, repealed by Act of May 17, 1999, 76th Leg., R.S., ch. 381, § 2, 1999 Tex. Gen. Laws 1386, 1403). See TEX. REV. CIV. STAT. ANN. arts. 6243g-4, § 19 (Vernon Supp. 2002) (present version of provision cited by Reames). The court noted that the section was written in both the present and the past tense, and therefore included both current and former transferees.

We conclude that these two provisions increasing retirement benefits for visiting judges apply only to such judges who retire after the January 1, 2002 effective date of the enactment, if the first anniversary of the last day of service as a visiting judge has not occurred. See Tex. Att'y Gen. Op. No. C-135 (1963) (amendment to Judicial Retirement Act operates prospectively and does not affect retirement status of judge who ceased to serve as a judge and withdrew from retirement system before passage of amendment). Accordingly, sections 834.102(b) and 839.102(b) of the Government Code do not increase benefits for visiting judges who retired before the January 1, 2002 effective date of those provisions.

                                   SUMMARY

            Sections 834.102(b) and 839.102(b) of the Government Code increase retirement benefits for a visiting judge who "has served as a visiting judge in this state and the first anniversary of the last day of that service has not occurred." TEX. GOV'T CODE ANN. §§ 834.102(b), 839.102(b) (Vernon Supp. 2002). These provisions operate prospectively and apply only to visiting judges who retire after the January 1, 2002 effective date. They do not provide the additional benefits to a visiting judge who retired before the effective date of the provisions.

                                          Very truly yours,

                                          JOHN CORNYN
                                          Attorney General of Texas

HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee

[1] See Letter from Sheila W. Beckett, Executive Director, Employees Retirement System of Texas, to Honorable John Cornyn, Texas Attorney General (Feb. 12, 2002); Letter from Jerry L. Benedict, Administrative Director, Office of Court Administration, to Honorable John Cornyn, Texas Attorney General (Feb. 1, 2002) (letters on file with Opinion Committee).