Bob Newey was born on October 28, 1935. He turned 75 on October 28, 2010. Newey became Judge Denise Pratt's Associate Judge in January 2011 after his 75th birthday. Newey became Judge Alicia Franklin's Associate Judge on June 17, 2014, after his 75th birthday, but during Pratt's original four year term. Judge Newey retired in December 2014.
The Texas Family Code says:
Sec. 201.002. QUALIFICATIONS. (a) Except as provided by Subsection (b), to be eligible for appointment as an associate judge, a person must meet the requirements and qualifications to serve as a judge of the court or courts for which the associate judge is appointed.
So, Judge Newey could only serve as the A.J. for a family district court if he had the qualifications to be a family district judge. It does not matter that he was actually employed by Harris County - he had to meet the State's qualifications for a district judge.
The Texas Constitution, Article 5, Section 1-a says:
Sec. 1-a. RETIREMENT, CENSURE, REMOVAL, AND COMPENSATION OF JUSTICES AND JUDGES; STATE COMMISSION ON JUDICIAL CONDUCT; PROCEDURE. (1) 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.
The Texas Legislature has not set the mandatory retirement age for judges, so the Constitution's age 75 limit is in effect. The statute on the qualifications to be a district judge merely sets the minimum age at 25 but does not say a judge cannot serve past the age 75. Gov't Code, Sec. 24.001 ("A district judge must be at least 25 years old").
So, what is the effect if a sitting judge does not have the constitutional qualifications to be a judge? There is no appellate case on a judge taking office after age 75, past the age when judges are allowed to serve by the Constitution (which is what the staff attorney told Judge Farr in the Spring of 2014). There is no law on the subject and the Texas Constitution only addresses a judge turning 75 during his or her term. However, there is a case involving a judge who failed to take the oath of office required by the Constitution. In
French v. State
, 572 S.W.2d 934 (Tex. Crim. App. 1978), the highest criminal court in Texas noted that the Texas Constitution requires judges to take an oath. The court held that any act by a judge who did not take the oath of office is void. "We are not dealing with the rights of a de facto judge but, rather, which right depends upon the taking of the oath of office prescribed by the Constitution, constituting a condition precedent to his right to act in that capacity."
So, if an order signed by a judge who did not take the constitutionally required oath of office is void, is an order signed by a judge who was past the constitutionally mandated retirement age of 75 when he first took office void? No one knows and my bet is that the orders will not be found to be void. Everyone, except maybe Judge Newey, assumed Newey had the legal qualifications to serve as Associate Judge and it looked to the world like he was an associate judge and he performed that office's functions. Were it not for the French case, cited above, it is likely that Judge Newey would be considered a "de facto judge" and thus his actions could not be collaterally attacked. In
Ryder v. U.S.
, 115 S.Ct.2031, 515 U.S. 177, 132 L.Ed.2d 136, (1995) the Supreme Court noted that the "de facto officer doctrine" confers validity upon acts performed by a person acting under color of official title even though it is later discovered that the legality of that person's appointment or election to office is deficient." At least one Texas case has followed the "de facto officer" doctrine.
Pyote I.S.D. v. Estes
, 390 S.W.2d 3 (Tex. Civ. App. - El Paso 1965, writ ref'd n.r.e.).
The problem is that the
case held that a "judge" who did not meet the condition precedent for being a judge is not a "de facto" judge. The Texas Constitution, Article V, Sec. 1-a says when judges must retire and declares their offices vacant at the expiration of the term during which a judge turns 75. The provision does not explicitly say that a judge who is already age 75 cannot take office, whereas the Constitution does require every judge to take an oath of office (I am requesting verification that every family associate judge in Harris County since 2010 has signed an oath of office). However, if a judge cannot serve past age 75 (or at least past the end of the term during which she turns 75), it is clearly implied that a judge who is already 75 cannot take office.
Any appellate court would want to desperately find some way to avoid invalidating the many orders Judge Newey signed, so my bet would be that some loop hole would be found to avoid a result that voided divorces and terminations and adoptions and changes of custody and increases of child support and contempt actions and monetary judgments.
The good news is that Pratt seldom let Judge Newey do that much on his own and she required that most of his orders be approved and signed by her (which at the time was one of the many complaints we all had about her). Alicia Franklin wisely decided to also sign almost every order Judge Newey signed. So, there are probably not that many orders that bear just Newey's signature. But, there are some and apparently lawyers are working on motions and maybe a mandamus to challenge whether those orders are void.
The real moral to this story is that someone needs to always verify that Associate Judges are eligible to serve. I am checking, but I have not found written proof that all current Associate Judges took oaths of office, so I wonder if some AJ orders could be challenged.