Did a retired Texas statutory county court judge have to elect within 90 days of retirement to serve on judicial assignment?

Texas AG Opinion JM-506: Retired County Judges Serving on Assignment

Plain-English summary

The House Appropriations Committee chairman asked whether a retired statutory county court judge had to elect to continue as a judicial officer within 90 days after retirement, even if the judge retired years before legislation first made that judge eligible for assignment. The official opinion also considered whether the judge had to follow former section 44.005's restrictions on practicing law. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0506.pdf

The Attorney General concluded that the Court Administration Act did not impose the 90-day election deadline on retired statutory county court judges. Section 4.014 required such a judge to certify a willingness to serve and comply with the law-practice restrictions, but the opinion said the act "imposes no deadline on the date of such certification." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0506.pdf

The opinion reached a different result on practicing law. Although statutory county court judges were not members of the state judicial retirement system and former section 44.005 did not apply to them directly, the Court Administration Act referred specifically to that provision. Applying the rule for statutes that incorporate another law by specific reference, JM-506 concluded that an eligible retired statutory county court judge had to comply with section 44.005's prohibition on appearing and pleading as an attorney in a Texas court. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0506.pdf

Currency note

This opinion was issued in 1986. Subsequent statutory amendments, court decisions, or later AG 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.

Common questions

Did the retired judge have to elect within 90 days after retirement?

No. JM-506 concluded that the Court Administration Act did not apply the separate 90-day deadline to a retired statutory county court judge. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0506.pdf

What did the judge have to file to be eligible for assignment?

The opinion said section 4.014(3) required the judge to certify to the presiding judge a willingness to serve and comply with the referenced restrictions on practicing law. It also said the act imposed no deadline for that certification. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0506.pdf

Could the assigned retired judge appear and plead as an attorney in Texas courts?

No, under the opinion's reading of the 1985 law. JM-506 treated the specific reference to former section 44.005 as incorporating its prohibition into the Court Administration Act for retired statutory county court judges seeking assignments. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0506.pdf

Background and statutory framework

The 1985 Court Administration Act repealed article 200a and created a broader system for assigning regular, retired, and former judges. Section 4.014 listed the judges eligible for assignment, including a "retired or former statutory county court judge" who certified willingness to serve and to comply with the practice-of-law prohibitions imposed by former section 44.005. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0506.pdf

Another enactment passed on May 27, 1985, chapter 602, changed the state judicial retirement system and required retirees within that system to elect judicial-officer status within 90 days after retirement. JM-506 found that rule applied directly only to retirees in the state judicial retirement system, not to statutory county court judges. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0506.pdf

The opinion relied on the specific-reference doctrine. Quoting the rule applied in Trimmier v. Carlton and related cases, it explained that a statute adopting another statute's provisions by specific reference has the same effect as if those provisions had been written into the adopting statute. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0506.pdf

Citations and references

• Court Administration Act, Acts 1985, 69th Leg., ch. 732, at 5284
• V.T.C.S. art. 200a-1, § 4.014
• former § 44.005, Title 110B, V.T.C.S.
• Government Code § 75.001
• Calvert v. Texas Pipe Line Co., 517 S.W.2d 777 (Tex. 1974)
• Trimmier v. Carlton, 296 S.W. 1070, 1074 (Tex. 1927)
• St. Paul Mercury Insurance Co. v. Billiot, 342 S.W.2d 161, 163 (Tex. Civ. App. - Beaumont 1960, writ ref'd)
• Western Casualty & Surety Co. v. Young, 339 S.W.2d 277 (Tex. Civ. App. - Beaumont 1960, writ ref'd)

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0506.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0506
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0506.pdf

Original opinion text

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

The Attorney General of Texas

JIM MATTOX
Attorney General

June 20, 1986

Honorable Jim D. Rudd
Chairman
House Appropriations Committee
Texas House of Representatives
P. O. Box 2910
Austin, Texas 78769

Opinion No. JM-506

Re: Requirements for election to continue as judicial officer by retired statutory county court judges

Dear Representative Rudd:

You ask whether a retired statutory county court judge would have to make an election to continue as a judicial officer within 90 days after his retirement even though his retirement may have occurred years before he became eligible for appointment by the enactment of the Court Administration Act, Acts 1985, 69th Leg., ch. 732, at 5284. Also, a question has been raised as to whether such a judge is subject to the prohibitions relating to the practice of law imposed on a retired judge by former section 44.005, Title 110B, V.T.C.S. We conclude that the Court Administration Act does not require a retired statutory county court judge to make an election to serve within 90 days after his retirement and that the prohibition in section 44.005 is applicable to such a judge.

Historically, article 200a, V.T.C.S., authorized and governed the assignment of regular, retired, and former district court judges by the presiding judge of the Administrative Judicial District and by the chief justice of the Supreme Court. On May 27, 1985, the Sixty-ninth Legislature passed the Court Administration Act which, effective January 1, 1986, repealed all of article 200a and enacted in its place a new and more comprehensive act for the administration of the courts of this state. Acts 1985, 69th Leg., ch. 732, at 5284. Cf. Attorney General Opinion JM-474 (1986).

Section 4.014 of the Court Administration Act provides:

The following judges may be assigned as provided by this chapter by the presiding judge of the administrative region in which the assigned judge resides:

(1) a regular district or county court at law judge in this state;

(2) a district judge who is a retiree under Subtitle E, Title 110B, Revised Statutes, who has consented to be subject to assignment and who is on the list maintained by the presiding judge as required by this section; and

(3) a former district judge or retired or former statutory county court judge who certifies to the presiding judge a willingness to serve and to comply with the prohibitions relating to the practice of law imposed on a retired judge by Section 44.005, Title 110B, Revised Statutes, and who is on the list maintained by the presiding judge as required by this section. (Emphasis added).

Your question arises from the fact that on the same day that the legislature enacted the Court Administration Act, May 27, 1985, the legislature also passed chapter 602, which became effective on September 1, 1985. Chapter 602 made extensive changes in the state's judicial retirement system, retaining one program for current judges and creating a separate program for future judges. It also enacted changes in the prohibition against the practice of law in court by retired judges receiving an annuity under the judicial retirement system. Until the express repeal of section 44.005, Title 110B, V.T.C.S., by section 17(b) of chapter 602, effective September 1, 1985, section 44.005 provided that all retirees "receiving an annuity from the [state judicial] retirement system may not appear and plead as an attorney in any court of this state." Simultaneously, section 17(a) of chapter 602 amended article 200a to provide that only judges retired under the judicial retirement system who make an election to serve on assignment as a judicial officer are prohibited from such court appearances. Chapter 602, section 17(a), specified that the election must be made within 90 days after retiring and is irrevocable.

The assignment of statutory county court judges is authorized and governed by the Court Administration Act. The dominant consideration in construing that statute is the intent of the legislature. See Calvert v. Texas Pipe Line Co., 517 S.W.2d 777 (Tex. 1974). Article 200a-1, section 4.014, which specifies the judges subject to assignment, includes a retired statutory county court judge who certifies a willingness to serve and a willingness to comply with the same prohibition relating to the practice of law imposed by section 44.005, subtitle E of Title 110B, on the judges who are retired under the judicial retirement system. Statutory county court judges are not included in the state judicial retirement system and the provisions of subtitle E are not directly applicable to them. The Court Administration Act, however, made the provisions of section 44.005 apply to statutory county court judges by its reference to section 44.005.

Reference statutes are an approved method of legislation. See Trimmier v. Carlton, 296 S.W. 1070, 1074 (Tex. 1927). It is an established rule of statutory construction that a statute which adopts the provisions of another statute by specific reference to the statute or provisions that are adopted has the same effect as though the statute or provisions adopted had been incorporated bodily into the adopting statute. A statute of specific reference incorporates such provisions only as they exist at the time of adoption unless the language of the adopting act evidences legislative intention that the referenced statute was adopted as it then existed and as it might later be amended. See St. Paul Mercury Insurance Co. v. Billiot, 342 S.W.2d 161, 163 (Tex. Civ. App. - Beaumont 1960, writ ref'd); Attorney General Opinions JM-237 (1984); H-294 (1974). Texas courts have stated that a statute by reference to another statute may incorporate in it the provisions of former law, although the former law may have expired or may have been repealed. A law so referred to in another law, and made a part of it, does not operate by its inherent force, but takes effect from the statute in which it is incorporated. Western Casualty & Surety Co. v. Young, 339 S.W.2d 277 (Tex. Civ. App. - Beaumont 1960, writ ref'd). It is our opinion that the legislature, by the enactment of the Court Administration Act, intends the eligibility of statutory county court judges for assignment to be dependent on their compliance with the language in former section 44.005, which states that they may not appear and plead as an attorney in any court in this state.

To be eligible for assignment, section 4.014(3) of the Court Administration Act requires a statutory county court judge also to certify to the presiding judge a willingness to serve on assignment, but the Court Administration Act imposes no deadline on the date of such certification. Section 17(a) of chapter 602 amended article 200a to require a retiree under the state judicial retirement system to make an election to be a judicial officer by submitting written notice of the election to the chief justice of the Supreme Court within 90 days after retiring. After making such an election, the person could never again practice in the courts of this state. Art. 200a, § 4a. See also Government Code Title 2, § 75.001 (election to remain as judicial officer by retirees under subtitle E, Title 110B, V.T.C.S.).

A question has been raised as to whether the provisions of article 200a, section 4a, as enacted by chapter 602, apply to the election to serve on assignment by a retired statutory county court judge. We conclude that the legislature does not intend the provisions of article 200a, section 4a, to apply to retired statutory county court judges. Article 200a, section 4a, applies directly only to retirees under the state judicial retirement system. We find no indication in the Court Administration Act that the legislature intended to adopt the provisions of article 200a by reference, especially since the Court Administration Act expressly repealed all of article 200a effective on January 1, 1986. Acts 1985, 69th Leg., ch. 732, § 5, at 5309.

SUMMARY

The Court Administration Act does not require a retired statutory county court judge who wishes to serve on assignment to make an election to serve within 90 days after his retirement, but requires compliance with former section 44.005, Title 110B, V.T.C.S.

JIM MATTOX
Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

ROBERT GRAY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Nancy Sutton
Assistant Attorney General