Can a Texas judge who is 74 on election day but turns 75 before the term starts run for another term?

Plain-English summary

Texas sets a mandatory retirement age for many of its judges. Article V, section 1-a(1) of the Texas Constitution provides that the office of a justice or judge of the appellate, district, and criminal district courts "shall become vacant on the expiration of the term during which the incumbent reaches the age of seventy-five (75) years" (the Legislature may set an earlier age, no lower than 70). The Jackson County Criminal District Attorney asked the AG a precise version of the question: if a district judge is 74 on election day but turns 75 in the gap between election day and the start of the new term, may he serve that four-year term?

The AG concluded he may not. Texas courts and the AG's office have consistently read section 1-a(1) as a mandatory-retirement rule (Walker v. Emps. Ret. Sys.; Wal-Mart Stores, Inc. v. Ard), adopted, as the Texas Supreme Court explained, to ensure that judges retire at or before age 75 because some judges did not retire when they should and were reelected after age-related infirmities made effective service impossible (Werlein v. Calvert). The decisive authority is Hatten v. Rains, a Fifth Circuit decision on nearly identical facts. There, a long-serving district judge turned 75 before the beginning of his next term, and the court held that because he reached 75 "before the beginning of his next term, he [was] ineligible to be placed on the ballot." The scenario the District Attorney described is the same: a judge who will be 75 before the next term starts.

The District Attorney suggested Hatten might be distinguishable because it involved a pre-2007 version of section 1-a(1). Before 2007, a judicial office became vacant on the very date the judge turned 75; the 2007 amendment changed that so a sitting judge who turns 75 mid-term can finish the term before mandatory retirement applies. The AG agreed the timing of the vacancy in Hatten is different, but said the intervening amendment does not change the answer, because the dispositive issue is whether the judge will turn 75 before the new term begins. Under either version, a candidate who will be 75 before a term starts is ineligible for that term. So the judge may neither run for nor serve a subsequent elected term.

The AG closed by noting that reaching 75 does not end a judge's ability to serve in the judiciary altogether. The Government Code lets retired judges be assigned to sit on courts of the same or lesser dignity as the one on which they previously sat (section 75.002(a)), and the chief justice of the Texas Supreme Court may assign a retired appellate justice or judge to a court of appeals for active service (section 75.003(b)). So while a judge 75 or over cannot run for elected judicial office, he may continue to serve and be compensated by assignment in some circumstances (Werlein; Lanford v. Fourteenth Ct. App.).

What this means for you

If you are a judge approaching age 75

Based on this opinion, if you will turn 75 before the start of the term you would be seeking, you are ineligible to run for that elected term under article V, section 1-a(1). The AG read the constitutional age limit and Hatten v. Rains to bar placing such a candidate on the ballot. If you are already in office and turn 75 during your term, the 2007 amendment lets you finish that term.

If you are an election official or county clerk handling ballots

The opinion supports treating a judicial candidate who will be 75 before the next term begins as ineligible for that office. The controlling test the AG applied is whether the candidate reaches 75 before the new term starts, not the candidate's age on election day.

If you are a retired judge who wants to keep serving

The AG points out that retirement at 75 does not foreclose continued judicial service by assignment. Government Code sections 75.002 and 75.003 allow assigning retired judges to sit on courts and be compensated, so a path to continued service exists outside running for elected office.

Common questions

Q: Can a Texas judge who is 74 on election day but turns 75 before the term starts run for that term?
A: No. The AG concluded that a candidate who will be 75 before the next term begins is ineligible to run, relying on article V, section 1-a(1) and Hatten v. Rains.

Q: Didn't the 2007 amendment let judges finish their terms after turning 75?
A: Yes, but only for a judge already serving who turns 75 mid-term. The AG said that change does not help a candidate who would be 75 before the new term even begins.

Q: What is the controlling test?
A: Whether the judge will turn 75 before the beginning of the next term. If so, the judge is ineligible for that term.

Q: Can a judge over 75 still serve in any way?
A: Yes, by assignment. Government Code sections 75.002 and 75.003 allow retired judges to be assigned to sit on courts and be compensated, even though they cannot run for elected judicial office.

Q: Why does Texas force judges to retire at 75?
A: The Texas Supreme Court explained the amendment was adopted to ensure judges retire at or before 75, because some judges did not retire when they should and were reelected after age-related infirmities impaired their effectiveness (Werlein v. Calvert).

Background and statutory framework

Article V, section 1-a(1) of the Texas Constitution directs the Legislature to provide for the retirement of justices and judges of the appellate, district, and criminal district courts and states that such an office "shall become vacant on the expiration of the term during which the incumbent reaches the age of seventy-five (75) years," with a special rule allowing a judge elected to a six-year term who reaches 75 in the first four years to remain until December 31 of the fourth year. The Legislature described the 1965 provision as "requiring automatic retirement" of judges at 75 (Tex. H.J.R. Res. 57). Courts have read it as mandatory (Hatten v. Rains; Werlein v. Calvert; Walker v. Emps. Ret. Sys.; Wal-Mart Stores, Inc. v. Ard; AG opinion M-0627).

In Hatten v. Rains, the Fifth Circuit confronted nearly identical facts: a district judge turned 75 before the beginning of his next term and was held ineligible to be placed on the ballot. The pre-2007 text made the office vacant on the date the judge turned 75; the 2007 amendment (Tex. H.J.R. Res. 36) allowed a sitting judge who turns 75 mid-term to finish the term. The AG concluded the 2007 amendment does not change the eligibility analysis for a candidate who will be 75 before a new term begins, because the dispositive question is whether the judge reaches 75 before that term starts. Retired judges 75 and over may nonetheless be assigned to sit and be compensated (Government Code sections 75.002(a), 75.003(b); Werlein; Lanford v. Fourteenth Ct. App.; AG opinion H-155).

Citations and references

Constitution and statutes:

• Tex. Const. art. V, § 1-a(1) (judicial office becomes vacant on expiration of the term during which the judge reaches 75)
• Tex. Gov't Code § 75.002 (assignment of retired judges) and § 75.003 (chief justice's assignment of retired appellate justices and judges)

Key cases:

• Hatten v. Rains, 854 F.2d 687 (5th Cir. 1988) (a judge who turns 75 before the beginning of his next term is ineligible to be on the ballot)
• Werlein v. Calvert, 460 S.W.2d 398 (Tex. 1970) (section 1-a(1) ensures judges retire at or before 75)
• Walker v. Emps. Ret. Sys. of Tex., 753 S.W.2d 796 (Tex. App.—Austin 1988, writ denied) (section 1-a(1) establishes mandatory retirement standards)
• Lanford v. Fourteenth Ct. App., 847 S.W.2d 581 (Tex. Crim. App. 1993) (assignment of a former judge as a visiting judge)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0404
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2022/kp-0404.pdf

Original opinion text

April 14, 2022

The Honorable Pam Guenther
Jackson County Criminal District Attorney
115 West Main, Room 205
Edna, Texas 77957

Opinion No. KP-0404

Re: Whether article V, section 1-a, of the Texas Constitution prohibits a candidate from running for state judicial office if the candidate is seventy-four years of age on the date of the election but turns seventy-five before the term begins (RQ-0430-KP)

Dear Ms. Guenther:

You ask whether a district judge who runs for reelection at the age of seventy-four but who turns seventy-five between election day and the start of the new term may serve the four-year term to which he seeks election.¹ Article V, section 1-a(1) of the Texas Constitution provides:

Subject to the further provisions of this Section, the Legislature shall provide for the retirement and compensation of Justices and Judges of the Appellate Courts and District and Criminal District Courts on account of length of service, age and disability, and for their reassignment to active duty where and when needed. The office of every such Justice and Judge shall become vacant on the expiration of the term during which the incumbent reaches the age of seventy-five (75) years or such earlier age, not less than seventy (70) years, as the Legislature may prescribe, except that if a Justice or Judge elected to serve or fill the remainder of a six-year term reaches the age of seventy-five (75) years during the first four years of the term, the office of that Justice or Judge shall become vacant on December 31 of the fourth year of the term to which the Justice or Judge was elected.

TEX. CONST. art. V, § 1-a(1). When the Legislature proposed the age limit provision in 1965, it described the provision as "requiring automatic retirement" of judges at age 75. Tex. H.J.R. Res. 57, 59th Leg., R.S., 1965 Tex. Gen. Laws 2227 (preamble).

¹ See Letter from Honorable Pam Guenther, Jackson Cnty. Crim. Dist. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Sept. 7, 2021), https://www2.texasattorneygeneral.gov/opinions/opinions/51paxton/rq/2021/pdf/RQ0430KP.pdf.

Courts recognize that mandatory judicial retirement ensures that judges who reach an age where they may no longer be effective do not remain in office. See Hatten v. Rains, 854 F.2d 687, 692-93 (5th Cir. 1988); Werlein v. Calvert, 460 S.W.2d 398, 401-02 (Tex. 1970) ("The reason for the amendment and its purpose are matters of common knowledge. Judges did not always retire when they should and some were reelected after the infirmities resulting from age made it impossible for them to render effective service."); see also Tex. Att'y Gen. Op. No. M-0627 (1970) at 7 ("[T]he intent appears clear that judges over seventy-five are disqualified to serve.").

Texas courts and this office have consistently construed section 1-a(1) as a mandatory retirement provision. See, e.g., Walker v. Emps. Ret. Sys. of Tex., 753 S.W.2d 796, 798 (Tex. App.—Austin 1988, writ denied) (asserting that section 1-a(1) "establishes mandatory retirement standards for judges"); Wal-Mart Stores, Inc. v. Ard, 991 S.W.2d 518, 524 n.5 (Tex. App.—Beaumont 1999, pet. denied) (citing section 1-a(1) as the basis for "the mandatory retirement age for appellate judges"). Section 1-a(1) provides for the "retirement" of judges, stating a judge's office "shall become vacant" at the end of the term during which he or she turns seventy-five. TEX. CONST. art. V, § 1-a(1). Pursuant to this language, a judge must leave office at the end of the term. The Texas Supreme Court explained shortly after the amendment adopting an age requirement that it "was adopted to insure that, with certain exceptions to prevent hardship, all judges of the courts designated would retire at or before reaching the age of 75 years." Werlein, 460 S.W.2d at 402.

In Hatten v. Rains, the Fifth Circuit Court of Appeals addressed a factual scenario akin to the one you describe. 854 F.2d at 690. A long-serving district court judge turned seventy-five on August 26, 1988. Id. His term of office expired December 31, 1988. Id. The court concluded that because the judge turned seventy-five "before the beginning of his next term, he [was] ineligible to be placed on the ballot." Id. The scenario you describe involves the same facts—a judge who will turn seventy-five before the beginning of his next term. Long-standing court precedent holds that the judge in this situation may not run for election for another term.

You suggest that Hatten v. Rains may be distinguishable because it addressed a prior version of article V, section 1-a(1). See Request Letter at 2-3. Prior to 2007, the provision provided that judicial offices became vacant on the date the incumbent reached age seventy-five. Tex. H.J.R. Res. 57, 59th Leg., R.S., 1965 Tex. Gen. Laws 2227. The provision was amended in 2007 to allow those judges who reached age seventy-five to complete their terms before the imposition of mandatory retirement. Tex. H.J.R. Res. 36, 80th Leg., R.S., 2007 Tex. Gen. Laws 6136. While the timing of the vacancy in Hatten may be distinguishable from the scenario you describe, the intervening constitutional amendment does not impact the answer to your question. See Hatten, 854 F.2d at 690. The dispositive issue is whether the judge turned seventy-five "before the beginning of his next term." Id. In both instances, the constitutional provision makes the judge who will be seventy-five before a term begins ineligible for reelection.

As you observe, opportunities exist for judges to continue to serve in the judiciary upon reaching age seventy-five and afterward. See Request Letter at 3. The Government Code establishes a procedure by which retired judges may be assigned to "sit on any court of the state of the same or lesser dignity as that on which the person sat before retirement." TEX. GOV'T CODE § 75.002(a). Furthermore, the chief justice of the Texas Supreme Court may assign a retired justice or judge of the supreme court, of the court of criminal appeals, or of a court of appeals to a court of appeals for active service. Id. § 75.003(b). Thus, while they may not run for elected judicial office in Texas, former judges who are age seventy-five and over may continue to serve and be compensated as part of the judiciary in some circumstances. See Werlein, 460 S.W.2d at 402 (explaining that "the State should not be deprived, absolutely and without exception, of the knowledge and experience of retired judges who have reached the age of 75 years"); Tex. Att'y Gen. Op. No. H-155 (1973) at 2; see also Lanford v. Fourteenth Ct. App., 847 S.W.2d 581, 587-88 (Tex. Crim. App. 1993) (considering whether a former judge could be assigned as a visiting judge).

S U M M A R Y

Under section 1-a(1) of article V of the Texas Constitution, a judge serving a four-year term who will reach the age of seventy-five before the end of the current term must retire at the end of the term of office. Longstanding judicial precedent holds that the judge may neither run for nor serve subsequent terms as an elected judge in Texas.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT E. WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

MURTAZA F. SUTARWALLA
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee