Here’s the Chron story on the bizarre accidental judicial resignation.
The Harris County attorney’s office was notified in March that Judge Bill McLeod, a Democrat presiding over Harris County Court at Law No. 4, had filed a transfer of campaign treasurer appointment with the Texas Ethics Commission stating he was seeking the office of chief justice of the Texas Supreme Court.
Unbeknownst to McLeod, this filing triggered Article 16, Section 65 of the Texas Constitution which considers such an announcement by anyone holding a county judicial post an automatic resignation.
“This is insane,” McLeod said Wednesday. “All of the judges are going, ‘You did what? How? We didn’t even know (the constitutional provision) existed.’”
McLeod, who was elected in November, hopes that a different provision of the constitution will help rectify his mistake. Article 16, Section 17 states that a county Commissioners Court is not required to appoint a successor after a county officer resigns, and “may allow the officeholder who resigned…to remain in office” as a holdover. If this happens, McLeod would have to run again in 2020 even though he was elected to a four-year term.
McLeod is not the first judicial officer to fall victim to this provision. In 2013, Irene Rios, then a Bexar County (San Antonio) court-at-law judge, told county commissioners she intended to run for chief justice of the 4th Court of Appeals, triggering her automatic resignation. Rios remained in her seat for four weeks after her announcement before tendering her letter of resignation, and she continued to make legal rulings during that time.
A 1999 amendment to the Texas Supreme Court judicial code of conduct further affirms that judges can continue to hold judicial office while being a candidate for another judicial office.
Rodney Ellis, a Democratic commissioner, was noncommittal on McLeod’s future, stating: “I firmly believe that any action taken by Commissioners Court on this matter must uphold the Texas Constitution above all else and that principle is what will ultimately guide my decision on Tuesday.”
Commissioner Adrian Garcia and a spokeswoman for County Judge Lina Hidalgo, the two other Democrats on the court, did not respond to requests for comment.
Republican Commissioner Steve Radack said he would not be receptive to appointing a holdover for a judicial post.
“If he’s resigned then how can you justify having him as a holdover?” Radack said. “That’s certainly not the spirit of the law.”
See here for the background. As the story notes, the judicial code of conduct doesn’t override the Constitution, it just allows judges that aren’t subject to that Constitutional provision to run for other office while remaining on the bench. If you look at Chapter 16, Section 65, all the offices in question are county offices except for District Attorney. It’s a quirk of the code that’s surely a holdover from an earlier time (note the inclusion of public weighers), and when you think about it there’s no real logic to limiting that restriction to just those offices. But that’s the Constitution we have, so here we are.
As to what happens, who knows? Either three Commissioners agree with the argument that it doesn’t make sense to kick McLeod off the bench, thus allowing him to hold over till the 2020 election, or they don’t. Note that if McLeod has his sights on the Supreme Court, he would have to step down after 2020 anyway, as he wouldn’t be able to run to fill the remainder of his term. It’s a coin toss either way, and I don’t envy any member of Commissioners Court the decision.
UPDATE: Here’s a detailed legal argument in favor of retaining Judge McLeod, sent to me by Adam Milasincic. It’s pretty persuasive.