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Constitutional Amendment Would Let Judges Serve After Age 75

Monday, November 05, 2007
by Mary Alice Robbins
Texas Lawyer

A proposed constitutional amendment on the Nov. 6 ballot, if passed by Texas voters, would end the requirement that state district and appellate jurists must leave the bench when they reach their 75th birthday.

But the effect that Proposition 14 will have on individual jurists depends on when an individual turns 75 during his or her term and whether the term is for four or six years.

Under the proposed amendment, a district judge who reaches the age of 75 during a four-year term could serve the remainder of the term.

But Proposition 14 would require an appellate justice who turns 75 during the first four years of a six-year term to step down at the end of the fourth year of the term.

If voters approve the amendment, Fort Worth's 2nd Court of Appeals Justice Dixon Holman says he could finish his current term, which runs until Dec. 31, 2008. Holman will celebrate his 75th birthday on Oct. 17, 2008.

"Just because I turn 75 on Oct. 17 is not necessarily a good reason to turn me out to pasture," Holman says.

But because Holman has only about 14 months remaining in his six-year term, the passage of Proposition 14 would mean he could stay on the bench only about two-and-a-half months longer than he could without the amendment.

The situation is different for Texas Court of Criminal Appeals Judge Charles Holcomb, who was elected to a six-year term in 2006 but will turn 75 on Sept. 8, 2008. If Proposition 14 wins the approval of voters, Holcomb says, he could serve through 2010. However, Holcomb's term doesn't expire until the end of 2012.

Holcomb still supports the proposed amendment. "Half a loaf is better than no loaf," he says.

But Holcomb could have had a full loaf.

State Sen. Kirk Watson, the Senate sponsor of H.J.R. 36, which places the amendment on the ballot, says the original version of the joint resolution would have allowed all jurists who celebrate their 75th birthday during a term to finish the term. But not everyone thought that was a good idea, says Watson, D-Austin, a partner in Hughes & Luce.

"There were some in the Senate who said, "I can go along for four years,' " Watson says. But they weren't willing to vote for the resolution if it would allow a jurist to serve four years after turning 75, he says.

Watson says he did not have any particular jurist in mind when he agreed to sponsor H.J.R. 36. His only concern, Watson says, is that the judges whom voters elect to the bench be able to serve their terms.

Judge Charles Mitchell of the 273rd District Court in San Augustine says that when a state judge elected by the people has to step down at age 75, the governor appoints a successor. If there is a delay in appointing another judge, taxpayers have to pay for a visiting judge, says Mitchell, who appeared before House and Senate committees earlier this year to testify in favor of H.J.R. 36 on behalf of the Texas Association of District Judges.

Roots in History

Texans amended the state constitution in 1965 to set the mandatory retirement age for state jurists at 75. Mitchell says voters approved the mandatory retirement age for judges at the same time they created the State Judicial Qualifications Commission, which has become the State Commission on Judicial Conduct. Prior to the creation of the commission, it was difficult to remove incompetent judges from office, Mitchell says. The difficulty in removing aging judges who are incompetent may have been a factor to Texans who voted to set a retirement age for judges, he says.

It's a different situation today, Mitchell says. The judicial conduct commission can recommend to the Texas Supreme Court that a judge deemed unfit for office be removed, regardless of the judge's age.

The mandatory age for retirement applies only to state judges and justices. Judges in the county courts-at-law are not affected by the retirement requirement in the Texas Constitution, Mitchell says.

Mitchell also notes that people are living longer than they did in the mid-1960s when voters set the mandatory retirement age. He says that in the 1960s, the life expectancy for men was 67 years and for women was 74 years. The life expectancy for men has extended by 10 years and for women by about 12 years, he says.

People also are remaining physically and mentally fit for longer, Mitchell says, adding that "75 is not as old as it used to be."

At least one state must not view 75 as too old for serving as a judge. In Vermont, judges can serve until they turn 90, according to the National Center for State Courts.