Untitled Texas Attorney General Opinion ( 1985 )

The Attorney General of Texas
JIM MATTOX December 2% 1985
Attorney General
Supreme Court Building Honorable Bob Bush Opinion No. ~~-402
P. 0. BOX 12548
Austin, TX. 79711-2548
chairman
512/475-2501 Committee on Judic,lary Re: Whether a district judge
Telex 9101674.1367 Texas Rouse of Rep,cesentatives whose term expires in 1988 may
Telecopier 512/4750266 P. 0. Box 2910 be a candidate for probate
Austin, Texas 7 5'769 judge in 1986
714 Jackson, Suite 700
Dallas, TX. 752024506 Dear RepreseutativleBush:
214l7424944
You request our opinion on the following question:
4824 Alberta Ave.. Suite 180
El Paso, TX. 799052793
Does (anyprovision of the Texas Constitution or
915/5333464 statutory law prohibit a district judge who will
be in the middle of his four-year term at the time
of the 1986 elections (&, will have more than
1001 Texas, suite 700
one year left on his term at the time of the
Houston,TX. 77002.3111
election:)from running for a position as a probate
713/2255880
judge 13 the 1986 general election?
606 Broadway. Suite 312 Article XVI, section 65 of the Texas Constitution provides, in
Lubbock. TX. 79401.3479 pertinent part, a3 follows:
SOW747.5239
Staggering Terms of Office - The following
4309 N. Tenth, Suite B officers elected at the General Election in
,&Allen, TX. 78501.1885 Novembrc, 1954, and thereafter, shall serve for
5121882.4547
the full terms provided in this Constitution:
200 Main Plaza, Suite 400 (a) District Clerks; (b) County Clerks: (c)
San Antonio, TX. 78205.2797 County Judges; (d) Judges of County Courts at Law,
512i225-4191 County C,riminalCourts, County Probate Courts and
County domestic Relations Courts; (e) County
An Equal Opportunity/
Treasurczrs; (f) Criminal District Attorneys; (g)
Affirmative Action Employer county Surveyors- (h) Inspectors of Hides and
Animals; (i) Co&y Commissioners for Precincts
Two and Pour; (j) Justices of the Peace.
Notwithstanding other provisions of this
Constitution, the following officers elected at
the General Election in November, 1954, shall
serve only for terms of two .(2) years: (a)
Sheriff:a;;(b) Assessors and Collectors of Taxes;
p. 1841
gonorable Bob Bush - Page i (m-402),
(c) District Attorneys; (d) County Attorneys; (e)
Public Weighers: (f) County Commissioners for
Precincts One 2nd Three; (g) Constables. At
subsequent elecM.ons, such officers shall be
elected for the full terms provided in this
Constitution.
In any distric,t,county or precinct where any
of the aforewent,ionedoffices is of such nature
that two (2) or more persons hold such office,
with the result that candidates file for 'Place
No. 1,' 'Place NIL, 2.' etc., the officers elected
at the General Ilection In November. 1954, shall
serve for a tern Iof two (2) years if the designa-
tion of their ofE:Lceis an uneven number. and for
a term of four (4) years if the designation of
their office is s.n even number. Thereafter, all
such officers shall be elected for the terms
provided in this Cloustitution.
Provided, however, if any of the officers named
herein shall aunrEnce their candidacy, or shall in
fact become a carrdidate,in any General, Special
or Primary Election, for any office of profit or
tmst under the laws of this State or the United
States other than the office then held, at any
time when the unexpired term of the office then
held shall excee'zone (1) year, such aunouncement
or such candidac2 shall constitute an autowatic
resignation of the office then held, and the
vacancy thereby created shall be filled pursuant
to law in the same wanner as other vacancies for
such office are filled. (Emphasis added).
Because article XVI, section 65, does not mention district
judges , the automatic resignation provision does not apply to district
judges. The United States Supreme Court upheld article XVI, section
65, against a claim that the application of the resign-to-run
provision to some public officials and not to others violated the
equal protect&m clause c'f the Fourteenth Amendment. Clement6 v.
Pashing, 457 U.S. 957 (198::).
We are aware of no similar provision that applies to district
judges. But see Code of Judicial Conduct, Canon 7, V.T.C.S. Title
14-App. (Eiug political activity by judges); see also Tex.
Const. art. V, $l-a(6)(A: (willful violation of Code of Judicial
Conduct is grounds for removal).
p. 1842
Honorable Bob Bush - Page :' (JM-402)
SUMMARY
The resign-tc-run provision of article XVI,
section 65, of the Texas Constitution does not
apply to district judges.
JIM MATTOX
Attorney General of Texas
JACK BIGHTOWKR
First Assistant Attorney Goneral
MARY KELLER
Executive Assistant Attornoy General
ROBERT GRAY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee!
Prepared by Sarah Woelk
Assistant Attorney General
p. 1843