Can a Texas district judge run for another office mid-term without automatically resigning the bench?

Texas AG Opinion JM-402: District Judge Resign-to-Run

Plain-English summary

A member of the Texas House asked the Attorney General a candidacy question: could a district judge, sitting in the middle of a four-year term with more than a year left, run for probate judge in the 1986 general election without automatically giving up the district bench? Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0402.pdf

The answer was yes. Texas has an automatic resignation rule, often called "resign to run," in article XVI, section 65 of the state constitution. When one of the officers named in that section announces for, or becomes a candidate for, a different office of profit or trust while more than a year remains on the current term, the announcement itself operates as a resignation from the office then held. But the list of covered officers is specific, and district judges are not on it. Because section 65 does not mention district judges, the automatic resignation provision did not reach them. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0402.pdf

The opinion noted that the U.S. Supreme Court had upheld section 65's resign-to-run scheme in Clements v. Fashing, 457 U.S. 957 (1982), against a claim that applying it to some officials but not others violated the Fourteenth Amendment's equal protection clause. The AG also pointed out that it knew of no comparable automatic-resignation provision aimed at district judges, while flagging that judicial candidacies are still governed by the Code of Judicial Conduct. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0402.pdf

Currency note

This opinion was issued in 1985. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is the "resign to run" rule?

It is a Texas constitutional provision, article XVI, section 65, that treats a covered officeholder's announcement of, or candidacy for, a different office as an automatic resignation of the office currently held, but only when more than one year remains on the current term. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0402.pdf

Why did it not apply to a district judge?

Because the rule reaches only the officers section 65 lists, such as district clerks, county clerks, county judges, sheriffs, and constables. District judges are not among them, so the automatic resignation did not attach to a district judge who sought another office. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0402.pdf

So could the district judge keep the bench while campaigning for probate judge?

Yes, as far as section 65 was concerned. The opinion found no constitutional or statutory automatic-resignation bar that applied to district judges seeking the probate judgeship. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0402.pdf

Were there any other limits on a judge running for office?

The opinion did not treat the field as wide open. It cited the Code of Judicial Conduct, Canon 7, which governs the political activity of judges, and noted that a willful violation of that code is grounds for removal under article V, section 1-a(6)(A) of the Texas Constitution. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0402.pdf

Background and statutory framework

Article XVI, section 65 of the Texas Constitution sets staggered terms for a long list of county and precinct offices and then adds the automatic resignation clause. Under that clause, if one of the named officers announces a candidacy or in fact becomes a candidate, in any general, special, or primary election, for an office of profit or trust other than the one held, at a time when the unexpired term exceeds one year, the announcement or candidacy is an automatic resignation of the office then held. The named offices include district and county clerks, county judges, judges of county courts at law and county probate courts, county treasurers, criminal district attorneys, sheriffs, tax assessor-collectors, county and district attorneys, constables, and justices of the peace. District judges are absent from the list. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0402.pdf

The opinion read that omission as decisive: with district judges left out, the resign-to-run trigger did not fire when a district judge sought another office. On the constitutionality of the scheme itself, the opinion relied on Clements v. Fashing, 457 U.S. 957 (1982), in which the U.S. Supreme Court sustained section 65 against an equal protection challenge to its selective coverage. Finally, the AG situated the answer against the separate framework that does govern judges who run for office, the Code of Judicial Conduct, Canon 7, and the removal consequence in article V, section 1-a(6)(A) for a willful violation. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0402.pdf

Citations and references

• Texas Constitution article XVI, section 65
• Code of Judicial Conduct, Canon 7, V.T.C.S. Title 14-App.
• Tex. Const. art. V, §1-a(6)(A)
• Clements v. Fashing, 457 U.S. 957 (1982)

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0402.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0402
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0402.pdf

Original opinion text

Best-effort transcription from a scanned PDF via OCR. Minor errors may remain; the linked PDF is authoritative.

The Attorney General of Texas

JIM MATTOX
Attorney General

December 23, 1985

Honorable Bob Bush
Chairman
Committee on Judiciary
Texas House of Representatives
P. O. Box 2910
Austin, Texas 78769

Opinion No. JM-402

Re: Whether a district judge whose term expires in 1988 may be a candidate for probate judge in 1986

Dear Representative 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 (i.e., 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 in the 1986 general election?

Article XVI, section 65 of the Texas Constitution provides, in pertinent part, as follows:

Staggering Terms of Office -- The following officers elected at the General Election in November, 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 Criminal Courts, County Probate Courts and County Domestic Relations Courts; (e) County Treasurers; (f) Criminal District Attorneys; (g) County Surveyors; (h) Inspectors of Hides and Animals; (i) County Commissioners for Precincts Two and Four; (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) Sheriffs; (b) Assessors and Collectors of Taxes; (c) District Attorneys; (d) County Attorneys; (e) Public Weighers; (f) County Commissioners for Precincts One and Three; (g) Constables. At subsequent elections, such officers shall be elected for the full terms provided in this Constitution.

In any district, county or precinct where any of the aforementioned 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 No. 2,' etc., the officers elected at the General Election in November, 1954, shall serve for a term of two (2) years if the designation of their office is an uneven number, and for a term of four (4) years if the designation of their office is an even number. Thereafter, all such officers shall be elected for the terms provided in this Constitution.

Provided, however, if any of the officers named herein shall announce their candidacy, or shall in fact become a candidate, in any General, Special or Primary Election, for any office of profit or trust 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 exceed one (1) year, such announcement or such candidacy shall constitute an automatic resignation of the office then held, and the vacancy thereby created shall be filled pursuant to law in the same manner 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 protection clause of the Fourteenth Amendment. Clements v. Fashing, 457 U.S. 957 (1982).

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. (concerning political activity by judges); see also Tex. Const. art. V, §1-a(6)(A) (willful violation of Code of Judicial Conduct is grounds for removal).

SUMMARY

The resign-to-run provision of article XVI, section 65, of the Texas Constitution does not apply to district judges.

Very truly yours,

JIM MATTOX
Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

ROBERT GRAY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General