JIM MATTOX 

Attorney General 

Supreme Court Building 

P. 0. BOX 12548 

Austin, TX. 79711-2548 

512/475-2501 

Telex 9101674.1367 

Telecopier 512/4750266 

714 Jackson, Suite 700 

Dallas, TX. 752024506 

214l7424944 

4824 Alberta Ave.. Suite 180 

El Paso, TX. 799052793 

915/5333464 

1001 Texas, suite 700 

Houston,TX. 77002.3111 

713/2255880 

606 Broadway. Suite 312 

Lubbock. TX. 79401.3479 

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4309 N. Tenth, Suite B 

,&Allen, TX. 78501.1885 

5121882.4547 

200 Main Plaza, Suite 400 

San Antonio, TX. 78205.2797 

512i225-4191 

An Equal Opportunity/ 

Affirmative Action Employer 

The Attorney General of Texas 

December 2% 1985 

Honorable Bob Bush Opinion No. ~~-402 

chairman 

Committee on Judic,lary 

Texas Rouse of Rep,cesentatives 

P. 0. Box 2910 

Austin, Texas 7 5'769 

Re: Whether a district judge 

whose term expires in 1988 may 

be a candidate for probate 

judge in 1986 

Dear Represeutativle Bush: 

You request our opinion on the following question: 

Does (any provision of the Texas Constitution or 

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 

one year left on his term at the time of the 

election:) from running for a position as a probate 

judge 13 the 1986 general election? 

Article XVI, section 65 of the Texas Constitution provides, in 

pertinent part, a3 follows: 

Staggering Terms of Office - The following 

officers elected at the General Election in 

Novembrc, 1954, and thereafter, shall serve for 

the full terms provided in this Constitution: 

(a) District Clerks; (b) County Clerks: (c) 

County Judges; (d) Judges of County Courts at Law, 

County C,riminal Courts, County Probate Courts and 

County domestic Relations Courts; (e) County 

Treasurczrs; (f) Criminal District Attorneys; (g) 

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,ioned offices 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 designation of their ofE:Lce is 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'z one (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