Full Opinion

September 16, 2026 The Honorable Brad Buckley, DVM Chair, House Committee on Public Education Texas House of Representatives Post Office Box 2910 Austin, Texas 78768-2910 Opinion No. KP-0529 Re: Whether a school district trustee must resign upon announcing candidacy for justice of the peace and related compatibility questions (RQ-0619-KP) Dear Representative Buckley: You ask three questions pertaining to an independent school district trustee who “intends to announce and file for [j]ustice of the [p]eace.” 1 You first ask whether article XVI, section 65 of the Texas Constitution applies to the trustee “such that the trustee automatically resigns upon announcement or becoming a candidate” for justice of the peace. Request Letter at 1. If we answer your first question in the negative, you then ask whether “any other constitutional, statutory, or common-law doctrine . . . require[s] a school trustee to resign upon announcing or becoming a candidate for justice of the peace.” Id. Third, if the trustee is elected to the office of justice of the peace, you ask whether the individual may “hold both offices simultaneously[] in light of the truancy-court function of justice courts and the common-law doctrine of incompatibility.” Id. Texas Constitution Article XVI, Section 65 We first address your question about whether article XVI, section 65—“the resign-to-run provision of the Texas Constitution,” Bianchi v. State, 444 S.W.3d 231, 246 (Tex. App.—Corpus Christi 2014, no pet.)—applies to an independent school district trustee. See Request Letter at 1. Under that provision, certain officers automatically resign their current office if they “shall announce their candidacy, or shall in fact become a candidate” in an election “for any office of profit or trust” when the remaining term of their current office exceeds one year and thirty days. TEX. CONST. art. XVI, § 65(b); see also id. § 65(a) (listing the officers subject to the provision). A Letter from Hon. Brad Buckley, DVM, Chair, H. Comm. on Pub. Educ., to Hon. Ken Paxton, Tex. Att’y 1 Gen. at 1 (Oct. 1, 2025), https://www.texasattorneygeneral.gov/sites/default/files/request-files/request/2025/ RQ0619KP.pdf (“Request Letter”). The Honorable Brad Buckley, DVM - Page 2 trustee of an independent school district is not one of the enumerated offices to which this “resign- to-run” rule applies. See id. § 65(a). We therefore answer your first question in the negative. 2 Code of Judicial Conduct Because we answer your first question in the negative, we consider whether “any other constitutional, statutory, or common-law doctrine . . . require[s] a school trustee to resign upon announcing or becoming a candidate for justice of the peace.” Request Letter at 1. You specifically inquire about the Code of Judicial Conduct, article XVI, section 40 of the Texas Constitution, and the common-law incompatibility doctrine. Id. We consider each in turn, beginning with the Code of Judicial Conduct. Based on the principle that “[a]n independent and honorable judiciary is indispensable to justice in our society,” the Code of Judicial Conduct provides “high standards of conduct” for judges. TEX. CODE JUD. CONDUCT, Canon 1, reprinted in TEX. GOV’T CODE, tit. 2, subtit. G, app. C. Though excepted from some of its provisions, a justice of the peace is a judge and is generally subject to the Code. See id. Canon 6C. The Code also governs judicial candidates. See, e.g., id. Canons 5 (“Refraining from Inappropriate Political Activity”), 6G (“Candidates for Judicial Office”). We find only one Code provision that expressly addresses resignation upon becoming a candidate. Canon 5(3) provides that “[a] judge shall resign from judicial office upon becoming a candidate in a contested election for a non-judicial office either in a primary or in a general or in a special election.” Id. Canon 5(3) (emphases added). A trustee of an independent school district is not a judge but instead a member of an independent school district’s governing body. See TEX. EDUC. CODE § 11.051(a). Nor is a trustee who runs for justice of the peace a candidate for a non- judicial office. See, e.g., Hensley v. State Comm’n on Jud. Conduct, 692 S.W.3d 184, 189 (Tex. 2024) (acknowledging that a justice of the peace holds a judicial office). Because the language of Canon 5(3) requires only that a judge resign upon becoming a candidate for a non-judicial office, we conclude it does not require a school district trustee to resign upon becoming a candidate for justice of the peace. 3 2 We note, however, that a justice of the peace is one of the enumerated offices in article XVI, section 65, see TEX. CONST. art. XVI, § 65(a), and an independent school district trustee is an office of trust within the meaning of that provision, see Ramirez v. Flores, 505 S.W.2d 406, 409 (Tex. App.—San Antonio 1973, writ ref’d n.r.e.) (per curiam). Thus, if a justice of the peace announces his or her candidacy or becomes a candidate for school district trustee when there is more than one year and thirty days left on the justice of the peace’s term, he or she would automatically resign. See TEX. CONST. art. XVI, § 65(b). The resign-to-run rule could, therefore, potentially impact this person in the future. 3 If the trustee is elected to the office of the justice of the peace, we further note that a justice of the peace is not required to comply with Canon 5(3). See TEX. CODE JUD. CONDUCT, Canon 6C(1)(e). Additionally, the Texas Committee on Judicial Ethics has concluded that simultaneous service as a justice of the peace and a school district board member does not violate the Code, see Comm. on Jud. Ethics, State Bar of Tex., Op. 143 (1991), but that the justice of the peace should be mindful of the restrictions in Canon 4A governing extra-judicial activities and Canon 4C pertaining to civic and charitable activities, see Comm. on Jud. Ethics, State Bar of Tex., Op. 269 (2001). The Honorable Brad Buckley, DVM - Page 3 Texas Constitution Article XVI, Section 40 We turn next to article XVI, section 40, which provides that, with certain exceptions, “[n]o person shall hold or exercise at the same time, more than one civil office of emolument.” TEX. CONST. art. XVI, § 40(a). An office of emolument is an office entitled to a “pecuniary profit, gain, or advantage.” State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 931 (Tex. Crim. App. 1994) (orig. proceeding). We begin by noting this provision does not bar an individual from simultaneously holding the two offices about which you inquire. First, a justice of the peace is specifically excepted from the provision’s restrictions. See TEX. CONST. art. XVI, § 40(a); Ruiz v. State, 540 S.W.2d 809, 811 (Tex. App.—Corpus Christi 1976, no writ). Second, “[a] trustee serving on the school board of an independent school district receives no compensation and therefore does not occupy an office of emolument.” Tex. Att’y Gen. Op. No. KP-0228 (2019) at 1 (citing TEX. EDUC. CODE § 11.061(d)); accord State ex rel. Brennan v. Martin, 51 S.W.2d 815, 816 (Tex. App.—San Antonio 1932, no writ) (holding the same under predecessor statute). Even if these two offices were subject to article XVI, section 40, a person does not “hold” an office under this provision until the person “qualifies or enters upon the duties of” the office. Purcell v. Carrillo, 349 S.W.2d 263, 263 (Tex. App.—San Antonio 1961, no writ). Once the holder of one office “qualifie[s] for and accept[s] a second office,” the person relinquishes the first office by operation of law. Id.; accord De Alejandro v. Hunter, 951 S.W.2d 102, 106 (Tex. App.—Corpus Christi 1997, orig. proceeding). A person who merely becomes a candidate for an office has not, of course, qualified for and accepted the office. 4 For instance, a person elected to a regular term of a “state, district, county, or precinct office” qualifies and assumes “the duties of the office on, or as soon as possible after, January 1 of the year following the person’s election.” TEX. GOV’T CODE § 601.003(a)–(b). Under Texas Constitution article XVI, section 40, a school district trustee does not resign that office upon becoming a candidate for justice of the peace. Common-law Doctrine of Incompatibility Next, we consider the common-law doctrine of incompatibility. “Under the common law, one person cannot simultaneously hold two incompatible offices[] . . . .” Pirtle, 887 S.W.2d at 930. Two offices are incompatible when one position appoints or employs the other. See Tex. Att’y Gen. Op. No. KP-0462 (2024) at 3; see also Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928) (recognizing self-appointment incompatibility); Tex. Att’y Gen. Op. No. GA-0738 (2009) at 2 (explaining self-employment incompatibility derives from self-appointment). Neither of the positions here employs or appoints the other. See, e.g., TEX. CONST. art. V, § 18(a); TEX. EDUC. CODE §§ 11.051–.067. Two offices are also incompatible when a person holding one office could impose that office’s policies on the other or subject it to control in some other way, see Thomas v. 4 That is not to say that article XVI, section 40’s dual officeholding prohibition is never relevant to a candidate. The Election Code provides that “[a] candidate may not file applications for a place on the ballot for two or more offices that: (1) are not permitted by law to be held by the same person; and (2) are to be voted on at one or more elections held on the same day.” TEX. ELEC. CODE § 141.033(a); see also id. § 52.034 (providing “[a] candidate’s name may not appear more than once on the ballot except as a candidate for[]. . . two or more offices that are permitted by law to be held by the same person”). The Honorable Brad Buckley, DVM - Page 4 Abernathy Cnty. Line Indep. Sch. Dist., 290 S.W. 152, 153 (Tex. Comm’n App.1927, judgm’t adopted), which is referred to as conflicting loyalties incompatibility, see Tex. Att’y Gen. Op. No. KP-0462 (2024) at 3. Under the conflicting loyalties prong, when an officer accepts a second “incompatible office, ‘a vacancy in the first office occurs on the date the person qualifies for the other office.’” Tex. Att’y Gen. Op. No. KP-0228 (2019) at 3 n.3 (quoting TEX. ELEC. CODE § 201.025). In this regard, “the general rule is that the acceptance and qualification for a second office incompatible with the first office is an implied resignation of the first office.” Pirtle, 887 S.W.2d at 930. We have previously explained that the incompatibility doctrine is not, therefore, a limitation on running for a second office—even when an individual would ultimately be prohibited from holding two offices. See Tex. Att’y Gen. Op. No. KP-0014 (2015) at 3. The common-law doctrine of incompatibility does not require a school district trustee to resign upon becoming a candidate for justice of the peace, and we find no other requirement that the trustee resign in order to run for justice of the peace. Presumably anticipating this conclusion, your final question asks whether a person may simultaneously hold both offices “in light of the truancy-court function of justice courts and the common-law doctrine of incompatibility.” Request Letter at 1. Notably, the Fourteenth Court of Appeals held in Turner v. Trinity Independent School District Board of Trustees that “the offices of [j]ustice of the [p]eace and school board trustee are not incompatible because neither office is accountable to, under the dominion of, or subordinate to the other, and neither has any right to interfere with the other in the performance of any official duty.” 5 700 S.W.2d 1, 2 (Tex. App.— Houston [14th Dist.] 1983, orig. proceeding) (citing Tex. Att’y Gen. Op. No. O-3522 (1941)). The court reasoned that “[a] [j]ustice of the [p]eace has limited jurisdiction[] . . . [and] [i]f a case involving the [school] [b]oard should happen to come before” the justice of the peace, “he could simply recuse himself.” Id. Nonetheless, we understand you to suggest that because a justice court is designated a truancy court, which has matters that come before it that involve the school district, the conflicting loyalties aspect of the incompatibility doctrine may prohibit one person from simultaneously holding both positions. Request Letter at 1; see also, e.g., TEX. EDUC. CODE § 25.0915(c) (providing “[a] truancy court shall dismiss” the state’s petition for an adjudication of a child for truant conduct “if the court determines that the school district’s referral” to the court does not meet certain requirements). We find no court other than Turner that has addressed your question, and this office has since concluded that similar simultaneous service is compatible. See Tex. Att’y Gen. Op. Nos. GA-0348 (2005) at 5 (concluding office of county commissioner and municipal judge are compatible), JC-0216 (2000) at 2 (relying, in part, on Turner to conclude that office of a junior college trustee and municipal judge are compatible). Moreover, a justice court is not the only court with jurisdiction over truancy matters, see TEX. EDUC. CODE § 25.093(b); TEX. FAM. CODE § 65.004(a), reducing the possibility that a truancy matter involving a school district will come 5 A justice court had jurisdiction over truancy matters when the Turner case was decided. See, e.g., Act of May 22, 1981, 67th Leg., R.S., ch. 813, § 1, 1981 Tex. Gen. Laws 3081, 3081 (repealed 1995) (providing that a school “attendance officer shall file a complaint” for failure to attend school in the proper county court, justice court, or municipal court). The Honorable Brad Buckley, DVM - Page 5 before a person in his or her role as justice of the peace. And if such a matter does come before the justice of the peace, he could “recuse himself.” 6 Turner, 700 S.W.2d at 2; see also Est. of Humphrey, No. 05-15-00589-CV, 2016 WL 5723961, at *3 (Tex. App.—Dallas Oct. 3, 2016, pet. denied) (mem. op.) (agreeing with Turner). For these reasons, we conclude that the offices of independent school district trustee and justice of the peace are compatible and, thus, may be held simultaneously. 6 We do not find the Turner court’s recusal reasoning to be dispositive and do not therefore conclude that the possibility of recusal could cure any incompatibility problem. This reasoning is, in particular, less relevant in cases not involving the office of a judge. See, e.g., Thomas, 290 S.W. at 153 (holding office of school trustee and city alderman incompatible). The Honorable Brad Buckley, DVM - Page 6 S U M M A R Y An independent school district trustee is not required to resign that office upon becoming a candidate for justice of the peace under article XVI, sections 40 or 65 of the Texas Constitution, Canon 5(3) of the Texas Code of Judicial Conduct, or the common- law doctrine of incompatibility. The common-law doctrine of incompatibility does not prohibit an independent school district trustee from simultaneously serving as a justice of the peace. Very truly yours, KEN PAXTON Attorney General of Texas BRENT WEBSTER First Assistant Attorney General RALPH MOLINA Deputy First Assistant Attorney General D. FORREST BRUMBAUGH Deputy Attorney General for Legal Counsel MICHAEL C. COTTON Chair, Opinion Committee CHRISTY DRAKE-ADAMS Assistant Attorney General, Opinion Committee