                               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




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