For the second consecutive legislative session, a joint resolution has been introduced that would amend the Texas Constitution to remove the mandatory retirement age of 75 for judges and justices across the state.
The bill is a longshot — two-thirds of both chambers would have to pass it before the question would be put to voters for the final say — and last legislative session, the resolution didn’t even get a hearing in committee.
That hasn’t deterred its author, state Rep. Cody Vasut, R-Angleton, who said he was inspired to propose the change after reading about the mandatory retirement of a judge in Brazoria County, where he lives and works. In February 2018, Brazoria County’s 412th District Court Judge Ed Denman was forced to relinquish the seat he held since 2005 after he turned 75.
Judge Denman never reached out to Vasut about the issue, Vasut said, but the rule struck him as unjust.
“Age is just a number,” he told The Lawbook in a recent interview. “It’s not a guarantee of competency.”
Judge Denman is among dozens of judges who have been forced out of office by the mandatory retirement age. But, should the constitution be amended by voters, one sitting justice who would be affected stands out above the others: Texas Supreme Court Chief Justice Nathan Hecht, who would be forced to retire at the end of 2024, with two years left in his term, if the amendment fails.
Justice Hecht recently told The Lawbook that he believes repealing the mandatory retirement age “would contribute to stability in the judiciary by allowing judges with experience to continue serving the people.”
He called the mandatory retirement age “necessarily arbitrary.”
Justice Hecht has, on occasion, lamented the turnover and the loss of institutional knowledge that stems from the partisan election of judges in Texas, saying “a judicial selection system that continues to sow the political wind will reap the whirlwind.” And he has pushed for a new judicial selection system.
“While I am critical of partisan elections for judges, if we are to have them, it would seem best to let the voters decide when judges should stay in office,” he said.
The chief justice’s pending forced retirement did not cross Vasut’s mind when he authored the joint resolution, he said.
“No, I didn’t file it because of him, but I certainly think Justice Hecht shouldn’t be forced out just because of his age,” said Vasut, who is also a lawyer. “I think mandatory retirement ages … [generally] are not necessarily a good idea, and specifically I don’t think they’re a good idea for government. You can practice law however long you want … why can’t you be a judge? It just goes back to the fact that this is completely unnecessary.”
Texas adopted its mandatory retirement age in 1965. According to data collected by the state, six judges who held appellate or district court seats left office between September 2019 and August 2021 because of the mandatory retirement age.
Voters in 2007 gave septuagenarian jurists some relief when they passed an amendment that allows a judge to finish out their term after turning 75 with one exception: If they are serving a six-year term and hit the milestone birthday during their first four years, the office becomes vacant on Dec. 31 of that year.
The amendment passed with 75 percent of voters in favor.
Former Texas Supreme Court Chief Justice Tom Phillips, who now practices at Baker Botts, said he would vote to repeal the mandatory retirement age should the question get on the ballot.
“The age cut off is a very blunt instrument,” he said. “I believe it’s a laudable goal, but it’s exercised with too imperfect an instrument. The age cutoff is just too arbitrary.”
Phillips said that when he was sitting on the Texas Supreme Court, a constitutional challenge case came before the court regarding the fitness of an elderly visiting judge on the grounds they couldn’t see or hear.
Visiting judge assignments are made by the presiding judge of the administrative judicial region, so the court declined to hear the case, he said.
“But it got me wondering if we needed a more formal process for visiting judges,” he said. “If we abolish the age cap, there ought to be some alternative protocol for ensuring that an elected or visiting judge is mentally and physically competent to serve.”
Vasut said that because elected judges are accountable both to voters and to the State Commission on Judicial Conduct, there is no reason to have a mandatory retirement age as a safety net to move out aging judges.
“You can be incompetent and unqualified at the age of 65,” Vasut said. “So I just think we ought not to have upper age limits anywhere, period, for elected office.”
Phillips raised two issues in response to those accountability arguments. He said it assumes a qualified candidate would rise to challenge an aging or ineffective judge, which might not be the case in less populous jurisdictions.
“Secondly … I think the idea that the electorate can police the capacity of judges is a quaint notion, but I don’t see any empirical evidence that it’s happening,” he said, noting Justice Jane Bland was ousted by Houston-area voters after 15 years on the First Court of Appeals and two years later, in 2020, made history by garnering more votes than any candidate in Texas history when she was elected to the state’s Supreme Court.
Ted B. Lyon, who runs a personal injury law firm in Mesquite, served in the Texas Legislature from 1979 through 1993 and turned 75 Jan. 23.
He is in favor of a mandatory retirement age, based in part on “real serious misgivings” he’s had during his 48 years of practicing law when he would find himself before an elderly federal judge.
There is no mandatory retirement age in the federal system.
“It’s one thing to come in as a visiting judge and handle one case,” he said of judges over 75 still serving in some capacity. “But when you’re on the public bench … you have to handle a lot of different things, and I just don’t think it’s good public policy to do that. And I think the Supreme Court of the United States is a prime example of that. Some judges stayed on way too long.”
Lyon also is a proponent of revamping the way judges are elected in Texas and proposed a bill in 1982 that would have seen the state step away from partisan elections.
“But the argument that you want to keep someone over the age of 75 on the bench to retain institutional knowledge is ridiculous,” he said. “We want institutional senility? Is that what we want?”
Justice Steven Smith, 70, currently sits on the Tenth Court of Appeals and was a district court judge in Brazos County for 22 years before that. He said he can “see the value of both” having a mandatory retirement age and not having one.
“The important thing for a judge is to be able to have a very clear and competent mind, and I don’t necessarily think that disappears at a specific age,” he said. “It probably disappears at different times for different people.”
Justice Smith is serving the last term he would be allowed to serve as an elected judge under the current constitutional limits.
“I have a great amount of faith in the electorate,” he said of letting the ballot box serve as a term limit. “Some people don’t. I believe the people who do seek to engage in voting, for the most part, want to elect people they think are competent to do the job.”
“It may be that someday we’ll get to the point where you actually have to take some kind of mental acuity test to run for public office, but we’re not there yet,” he said. “And I can see pluses and minuses on both sides of that coin.”