Can a former county judge who retired through TCDRS fill in as a visiting judge when a Texas county judge is absent?

Plain-English summary

When an elected county judge is absent or physically unable to sit, some Texas counties can bring in a substitute to keep the county court running. In counties governed by subchapter C of Government Code chapter 26 (counties with no statutory county court at law or statutory probate court, where the county court's duties fall on the county judge), section 26.023(a) lets the county judge appoint "a retired judge or a constitutional county judge from another county" as a visiting judge.

Lampasas County wanted to appoint a former constitutional county judge who is highly experienced in county court matters and who retired under the Texas County and District Retirement System (TCDRS). The problem: that person does not meet the Government Code's specific definition of a "retired judge" in subsection 74.041(6), which (as relevant here) covers someone who served as an active judge for at least 96 months in a statutory probate or statutory county court and retired under TCDRS. The county pointed out that section 74.041 opens with "In this chapter," and argued that the definition therefore should not carry over to section 26.023.

The AG worked through how a court would read the undefined term "retired judge" in section 26.023. Chapter 26 does not define it, so the analysis started with the common meaning, then turned to the Code Construction Act's instruction that a term which has acquired a technical or particular meaning be construed that way. The AG found that in the context of appointing visiting judges, "retired judge" has likely acquired the meaning given in subsection 74.041(6). The deciding factor was Lackey v. State, the one judicial opinion construing "retired judge" under section 26.023, which relied on the 74.041(6) definition. In Lackey, a county judge had appointed a local practicing attorney to fill in; because the attorney was neither a retired judge nor a constitutional county judge from another county, his orders were held void, not merely voidable.

Putting that together, the AG concluded a court today would likely define "retired judge" in section 26.023(a) by reference to subsection 74.041(6). So a former constitutional county judge who does not satisfy that definition is not eligible to be appointed as a visiting judge under section 26.023(a), and any actions or orders that person took as a visiting judge would likely be void or at least subject to challenge.

What this means for you

If you are a county judge looking to appoint a fill-in

Based on this opinion, in a subchapter C county your appointment power under section 26.023(a) reaches only two kinds of people: a "retired judge" as defined in subsection 74.041(6), or a sitting constitutional county judge from another county. A respected former county judge who retired through TCDRS but does not meet the 74.041(6) definition does not fit either category, according to the AG.

If you are a county attorney advising on a visiting-judge appointment

The AG read the 74.041(6) definition into section 26.023(a) largely because Lackey v. State did. The opinion flags that there is a "potential textual argument" the other way (that "In this chapter" language and provisions that expressly cross-reference appointment procedures could support using the common meaning), but it would not adopt that argument against the only court decision on point. The practical risk the AG identified is severe: under Lackey, an unqualified appointee's orders are void, not voidable, so a flawed appointment can unravel the proceedings before that judge.

If you are a litigant or lawyer in a case heard by a visiting judge

The opinion is a reminder to confirm a visiting judge's qualifications. If a county judge in a subchapter C county appointed someone who is not a "retired judge" under 74.041(6) and not a constitutional county judge from another county, the AG's view is that the judge's actions would likely be void or at least open to attack on that basis.

Common questions

Q: Who can a county judge appoint as a visiting judge under section 26.023(a)?
A: Only "a retired judge or a constitutional county judge from another county," and only when the county judge is absent from the county or absent because of physical incapacity. The AG read "retired judge" by reference to subsection 74.041(6).

Q: My county judge retired through TCDRS. Doesn't that make them a "retired judge"?
A: Not automatically. Subsection 74.041(6) requires (among its options) service as an active judge for at least 96 months in a statutory probate or statutory county court plus retirement under TCDRS. A former constitutional county judge who does not meet that definition is not a "retired judge" for section 26.023(a), in the AG's view.

Q: What happens if an unqualified person is appointed and rules on a case?
A: The AG, citing Lackey v. State and Saylors v. State, said those actions would likely be void or at least subject to attack. Lackey held the orders of an unqualified appointee were void, not merely voidable.

Q: Did the AG say this is the only possible reading?
A: No. The AG acknowledged a textual argument for using the common meaning of "retired judge" instead, but concluded a court would likely follow Lackey and apply the 74.041(6) definition.

Background and statutory framework

Texas has both constitutional county courts (created by article V, section 15 of the Texas Constitution, one per county, presided over by the county judge) and statutory county courts (created by the Legislature under article V, section 1). Government Code section 21.009 supplies the definitions, and chapter 26 (sections 26.001-.353) governs constitutional county courts. Subchapter B of chapter 26 provides for visiting-judge appointments as a general matter, while subchapter C applies only to particular counties, those "in which there is no statutory county court at law or statutory probate court [and the] duties of the county court devolve on the county judge." Section 26.021. Lampasas County is a subchapter C county.

Within subchapter C, subsection 26.023(a) lets the county judge appoint "a retired judge or a constitutional county judge from another county" as a visiting judge when the county judge is absent from the county or absent because of physical incapacity. The statute does not provide for appointing a former constitutional county judge, so such a person qualifies only by being a "retired judge." Chapter 26 does not define that term. Under the Code Construction Act, a court determines legislative intent from the plain meaning of the words (Maxim Crane Works; City of LaPorte v. Barfield; Alex Sheshunoff Mgmt. Servs.), uses definitions the Legislature prescribed and any technical or particular meaning words have acquired (City of Rockwall v. Hughes), and construes terms that have acquired a technical or particular meaning accordingly (section 311.011(b); Bush v. Lone Oak Club). The AG concluded that, in the context of visiting-judge appointments, "retired judge" likely carries the meaning in subsection 74.041(6), and that Lackey v. State, the only judicial opinion construing the term under section 26.023, relied on that definition. Lackey held that an appointee who was neither a retired judge nor a constitutional county judge from another county was unqualified, making his actions void. Given that, the AG concluded a former constitutional county judge who does not satisfy subsection 74.041(6) is not eligible under section 26.023(a).

Citations and references

Statutes:

• Tex. Gov't Code § 26.023 — county judge may appoint a retired judge or a constitutional county judge from another county as a visiting judge
• Tex. Gov't Code § 74.041 — defines "retired judge" and "retiree"
• Tex. Gov't Code § 311.011 — words with a technical or particular meaning construed accordingly

Key cases:

• Lackey v. State, 322 S.W.3d 863 (Tex. App.—Texarkana 2010), aff'd, 364 S.W.3d 837 (Tex. Crim. App. 2012) — defines "retired judge" under section 26.023 by reference to subsection 74.041(6); unqualified appointee's orders void
• Maxim Crane Works, L.P. v. Zurich Am. Ins. Co., 642 S.W.3d 551 (Tex. 2022) — courts discern legislative intent from the plain meaning of the words enacted
• Bush v. Lone Oak Club, LLC, 601 S.W.3d 639 (Tex. 2020) — a word used in one sense ordinarily keeps that meaning when reused on the same subject matter

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0421
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2022/kp-0421.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

October 25, 2022

The Honorable John K. Greenwood
Lampasas County Attorney
409 South Pecan, Suite 203
Lampasas, Texas 76550

Opinion No. KP-0421

Re: Qualifications for a retired judge's appointment as a visiting judge to a constitutional county court under section 26.023 of the Government Code (RQ-0456-KP)

Dear Mr. Greenwood:

You ask whether a former constitutional county judge who does not meet the definition of a retired judge under Government Code subsection 74.041(6) may be appointed as a visiting judge under Government Code section 26.023.¹ You tell us the need for a visiting judge arises, because the elected county judge may be absent from the county or absent because of physical incapacity. See Request Letter at 1. You state that chapter 26 of the Government Code permits the appointment of a visiting judge in those circumstances but that it is difficult to secure the services of eligible judges. Id.; see TEX. GOV'T CODE § 26.023(a).

Government Code, Chapter 26

Texas law establishes both constitutional and statutory county courts. See TEX. CONST. art. V, §§ 1 (authorizing the Legislature to establish other courts as it deems necessary), 15 (establishing a county court for each county); see also TEX. GOV'T CODE § 21.009(1) (defining "county court" as the court created under article V, section 15), (2) (defining "statutory county court" as a county court created by the Legislature under article V, section 1). Constitutional county courts are presided over by the county judge and have jurisdiction "as provided by law." TEX. CONST. art. V, § 16; see also TEX. GOV'T CODE § 21.009(3) (defining "county judge" as the judge of the county court).

Government Code chapter 26 governs constitutional county courts. See TEX. GOV'T CODE §§ 26.001–.353. Chapter 26, subchapter B contains provisions for the appointment of a visiting judge in specified circumstances as a general matter, but subchapter C's provisions for the appointment of a visiting judge apply to only particular counties. Id. § 26.021 (providing subchapter C applies to counties "in which there is no statutory county court at law or statutory probate court [and the] duties of the county court devolve on the county judge"). You tell us that Lampasas County is subject to subchapter C. Request Letter at 1.

Within subchapter C, subsection 26.023(a) provides that "[t]he county judge may appoint a retired judge or a constitutional county judge from another county as a visiting judge when the county judge is absent from the county or absent because of physical incapacity." TEX. GOV'T CODE § 26.023(a). You tell us the person the Lampasas County judge would like to appoint is a former constitutional county court judge who retired under the Texas County and District Retirement System (TCDRS) and who is "highly experienced in county court judicial matters," but who is not a "retired judge" under Government Code subsection 74.041(6). Request Letter at 2. Subsection 26.023(a) does not provide for the appointment of a former constitutional county judge, so under the plain language of the statute this person is eligible for appointment in the circumstances you describe only if he or she is a retired judge. See TEX. GOV'T CODE § 26.023(a). You suggest that section 74.041's language "In this chapter" precludes the use of the definition of "retired judge" for other purposes.² See Request Letter at 2.

Analysis

A court's primary objective when construing a statute is to determine the Legislature's intent, which, when possible, it discerns from the plain meaning of the words chosen. See Maxim Crane Works, L.P. v. Zurich Am. Ins. Co., 642 S.W.3d 551, 557 (Tex. 2022); see also City of LaPorte v. Barfield, 898 S.W.2d 288, 292 (Tex. 1995) ("Legislative intent remains the polestar of statutory construction."). "'Ordinarily, the truest manifestation of what legislators intended is what lawmakers enacted, the literal text they voted on.'" Maxim Crane Works, L.P., 642 S.W.3d at 557 (quoting Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644, 651 (Tex. 2006)). When a statute is clear and unambiguous, a court will apply its words according to their common meaning without resort to rules of construction or extrinsic aids. Id. Moreover, courts "'use definitions prescribed by the Legislature and any technical or particular meaning the words have acquired.'" Id. (quoting City of Rockwall v. Hughes, 246 S.W.3d 621, 625–26 (Tex. 2008)).

As Government Code chapter 26 does not define the term "retired judge," we first consider its common meaning. Id. "Retired" commonly means "having left one's job and ceased to work." NEW OXFORD AMERICAN DICTIONARY 1491 (3d ed. 2010). A "judge" is "a public official appointed or elected to hear and decide legal matters in court; a judicial officer who has the authority to administer justice." BLACK'S LAW DICTIONARY 968 (10th ed. 2014). Pursuant to these definitions, a "retired judge" is a public official appointed or elected to hear and decide legal matters or administer justice in court who has left the job and ceased to work.

At the same time, the Code Construction Act directs that where an undefined term has acquired a technical or particular meaning, it shall be construed to have that meaning. See TEX. GOV'T CODE § 311.011(b) (providing that "[w]ords and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly"). In instances when the "legislature has used a word in a statute in one sense and with one meaning, and subsequently uses the same word in legislating on the same subject-matter, its meaning in the subsequent statute will ordinarily be the same." Bush v. Lone Oak Club, LLC, 601 S.W.3d 639, 647 (Tex. 2020) (internal citations omitted). In the greater context of appointment of visiting judges, to the extent the term retired judge has acquired a particular meaning it is likely the one provided in subsection 74.041(6). The one judicial opinion we find that considers the meaning of retired judge under section 26.023 relies on the definition in subsection 74.041(6). See Lackey v. State, 322 S.W.3d 863, 867 n.8 (Tex. App.—Texarkana 2010), aff'd, 364 S.W.3d 837 (Tex. Crim. App. 2012).

In Lackey, the constitutional county judge appointed a local, practicing attorney to preside over her bench in her absence. See id. at 864. The court determined that the appointed attorney was neither a retired judge nor a constitutional county judge from another county, and thus was not qualified to be appointed as a visiting judge under subsection 26.023(a). See id. at 869. As a result, the actions and orders of the acting judge were not "merely voidable" but were void, as "[t]he actions of a judge without authority are void if the judge is either disqualified, or is not qualified." Id. The court reached its determination by looking to the definition of retired judge from Government Code subsection 74.041(6). See id. at 867 n.8. While there is a potential textual argument that similar provisions expressly incorporate specific provisions for the appointment of visiting judges, so that section 26.023's lack of such provision means that it should be construed with the common meaning, we cannot ignore the court's analytical approach of defining the term pursuant to subsection 74.041(6). See generally TEX. GOV'T CODE §§ 26.012 (providing that "a visiting judge shall be assigned in accordance with Section 25.0022(h)"), 26.011 (providing that the "presiding judge shall appoint a visiting judge to hear [certain cases] in accordance with Subchapter C, Chapter 74").

"[A] judgment rendered by a special judge who had not been appointed or selected in accordance with the constitutional and statutory requirements governing such matters is an absolute nullity." Saylors v. State, 836 S.W.2d 769, 770 (Tex. App.—Waco 1992, pet. ref'd). Given the Lackey opinion's reliance on the definition in Government Code subsection 74.041(6), a court addressing your question today would likely conclude that the term "retired judge" should be defined by reference to Government Code subsection 74.041(6). Accordingly, a former constitutional county judge who does not otherwise satisfy the definition in Government Code subsection 74.041(6) is not a retired judge eligible to be appointed as a visiting judge under Government Code subsection 26.023(a), and any actions that judge takes or orders that judge enters would likely be void or at least subject to attack on that basis.

S U M M A R Y

A court would likely define the term "retired judge" for purposes of Government Code subsection 26.023(a) by reference to its definition in Government Code subsection 74.041(6). Under that construction, a former constitutional county judge who does not otherwise satisfy subsection 74.041(6) is not eligible to be appointed as a visiting judge under Government Code subsection 26.023(a).

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT E. WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

D. FORREST BRUMBAUGH
Deputy Attorney General for Legal Counsel

CHARLOTTE M. HARPER
Acting Chair, Opinion Committee

¹ See Letter from Honorable John K. Greenwood, Lampasas Cnty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Apr. 28, 2022), https://texasattorneygeneral.gov/sites/default/files/request-files/request/2022/RQ0456KP.pdf ("Request Letter").

² Government Code subsection 74.041(6) defines a "retired judge" to mean a retiree or a "person who served as an active judge for at least 96 months in a statutory probate or statutory county court and has retired under the Texas County and District Retirement System." TEX. GOV'T CODE § 74.041(6); see also id. § 74.041(3) (defining "retiree" by reference to specific judicial retirement systems that are not one under which the former constitutional county judge retired).