AUSTIN - Yesterday, Attorney General Ken Paxton issued an opinion on the qualifications for a retired judge’s appointment as a visiting judge to a constitutional county court.
The opinion request was submitted by Lampasas County Attorney John Greenwood, who asked 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.
The request states that the need for a visiting judge may arise because the elected county judge may be absent from the county or absent because of physical incapacity.
Government Code chapter 26 governs constitutional county courts.
Paxton found that 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.
“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),” the opinion states. “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).”
Opinion No. KP-0421