TX: Probate Judge Guy Herman Retires, Knowing He'll Be Re-Elected

Longtime Travis County Probate Judge Guy Herman wanted to take some time off before starting his eighth term next year -- time to brush up on his Spanish, exercise, perhaps do some traveling. So he decided to quit his job.

His last day of work will be Sept. 22. Come November, though, Herman will run unopposed for probate judge and is guaranteed to win his old seat back.

What Herman calls a much-needed "sabbatical" is highly unusual, but he says it's designed to save the county money and allow him to take a vacation that doesn't include responding to work emails and calls.

But Herman didn't think about one potential hitch in his plan: The 65-year-old can choose whether to start receiving retirement benefits once he quits.

Federal rules don't allow the distribution of such benefits if an employee retires but expects or has an agreement to be rehired by the same employer. That's because the Internal Revenue Service wants tax-exempt money in an employee's pension to pay for retirement and not pad regular paychecks.

An employee who breaks the rules has to return any benefit distributions, or the entire retirement plan that all Travis County employees participate in could be at risk of being disqualified by the IRS. Participants then would have to pay taxes when they contribute and distributed benefits would also get taxed.

Herman said in an interview this week that he hadn't considered whether it could be problematic for him to receive retirement benefits after he quits. He said he hadn't decided whether to receive his benefits, but that if he couldn't get the money, it would be "no big deal," since the savings in his retirement account would only grow.

"I want a sabbatical. I've got a sabbatical," Herman said. "So that's my focus right now. Rest. Relaxation."

Herman later referred other questions to Buck Wood, a prominent Austin lawyer who's been advising Herman on his resignation and related issues. Wood said that running for re-election hardly constitutes an "agreement" for Herman to return to work, and that if Herman did start drawing retirement benefits, there's no way the IRS would get involved in such a small-potatoes matter.

"We may have some disagreement with the retirement system," Wood said, later adding, "If he decides to do it, and if they decide to make an issue about it, I'm going to be very surprised."

A statement from the Texas County and District Retirement System said state law requires that an employee have a "bona fide" termination to legally receive benefits -- a criteria that isn't met if the employee plans to return as an elected official.

Travis County employees contribute 7 percent of each paycheck to their retirement, and the county matches each dollar with $2.25. To access retirement benefits, an employee must quit, fill out a retirement application and choose a monthly payment plan. Employees must meet eligibility requirements based on age and years of service to retire.

On Tuesday, the Travis County Commissioners Court unanimously voted to accept Herman's resignation, which was submitted Aug. 29.

The Commissioners Court also voted to appoint Associate Probate Judge Dan Prashner to replace Herman as probate judge, as recommended by Herman in his resignation letter. Prashner's pay, currently at $115,360, will increase to $158,000, the base salary for probate judges written into state law.

Herman, whose salary is $196,367, said in his resignation letter that he expects Prashner to then appoint a new, temporary associate judge. Prashner will return to his associate judge seat after the election.

Herman said he may not run for just one but two more terms, if he's rejuvenated enough by his time away from work, but said he hasn't seriously thought that far ahead.

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Travis Probate Judge Guy Herman retires, knowing he'll be re-elected