JIM MATTOX Attorney General

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# The Attorney General of Texas

December 2% 1985

HonorableBob Bush OpinionNo. ~~-402 chairman Committee on Judic,lary TexasRouse of Rep,cesentatives P. 0. Box 2910 Austin, Texas 75'769 Re: Whethera district judge whose term expires in 1988may be a candidate for probate judge in 1986
Dear Represeutativle Bush:
You request ouropinionon the followingquestion:

Does (any

provision of theTexas Constitutionor statutory law prohibit a district judge who will be in themiddle ofhis four-yearterm 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 aprobate judge 13 the 1986 general election? Article XVI, section 65 of the Texas Constitution provides, in pertinentpart, a3 follows:

Staggering Terms of Office - The following officers elected at the General Election in Novembrc, 1954, and thereafter, shall serve for the full termsprovided 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. 1841gonorableBob 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,' 'PlaceNIL,2.' etc., the officers elected at the General Ilection In November. 1954, shall serve for a tern Ioftwo (2)years if the designation of their ofE:Lceis an uneven number. and for a term of four (4) years if the designation of their office is s.neven number. Thereafter, all such officers shall be elected for the terms provided **in** this Cloustitution. Provided,however, if any of the officersnamed herein shallaunrEnce 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 suchoffice are filled. (Emphasisadded).
Because article XVI, section 65, does not mention district judges, the automaticresignationprovisiondoes not apply to district judges. The United States Supreme Court upheld articleXVI, 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'fthe 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. 1842HonorableBob 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 AttorneyGeneral of Texas
JACKBIGHTOWKR FirstAssistantAttorneyGoneral
MARY KELLER ExecutiveAssistantAttornoyGeneral ROBERT GRAY SpecialAssistantAttorneyGeneral RICK GILPIN Chairman,Opinion Committee! Preparedby SarahWoelk AssistantAttorneyGeneral

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