Untitled Texas Attorney General Opinion

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