Judge William “Bill” McLeod

LEGAL BRIEF IN SUPPORT OF JUDGE WILLIAM MCLEOD

April 6, 2019

Hon. Lina Hidalgo, Harris County Judge
Hon. Rodney Ellis, Precinct One Commissioner
Hon. Adrian Garcia, Precinct Two Commissioner
Hon. Steve Radack, Precinct Three Commissioner
Hon. R. Jack Cagle, Precinct Four Commissioner

1001 Preston Street
Houston, Texas 77002

Re: Judge William “Bill” McLeod Harris County Civil Court at Law No. 4

Dear Judge Hidalgo and Honorable Commissioners,

We would like to voice our support for Judge William “Bill” McLeod. We believe the “resign-to-run” rule set forth in Article XVI, Section 65 of the Texas Constitution, as it applies to a judge running for a judicial position, is not settled law. We will outline below the basis for this position.

1.  Texas courts have never ruled on the meaning of “office of profit or trust” found in Article XVI, Section 65 of the Texas Constitution, to determine if such a term applies to the judiciary.

The Texas Supreme Court has never ruled on the issue of whether Article XVI, Section 65 of the Texas Constitution requires a judge seeking a judicial office to resign. Texas appellate court cases that consider Article XVI, Section 65 do not pertain to judges running for judicial office. [1] The issue of whether Judge McLeod has automatically resigned pursuant to Article XVI, Section 65 would be a case of first impression for the Texas Supreme Court.

2.  The Texas Supreme Court could easily rule that Judge McLeod never resigned. The Texas Supreme Court has strongly indicated that Article XVI, Section 65 of the Texas Constitution does not apply to judges running for judicial positions. The Court has given the following three signals that it does not:

  1.  Canon 5(3) of the Texas Code of Judicial Conduct, often called a “resign-to-run” rule, directly contradicts “resign-to-run” rule Article XVI, Section 65 of the Texas Constitution, as it is being applied to Judge McLeod

[1] Ramirez v. Flores, 505 SW2d 406 (Tex. App—San Antonio 1973) (County Commissioner running for school district trustee); Standley v. Sansom, 367 SW3d 343 (Tex. App—San Antonio 2012) (Constable running for sheriff); Bianchi v. State of Texas, 444 SW3d 231 (Tex. App—Corpus Christi-Edinburg 2014) (County Attorney running for County Court at Law judge)

In Canon 5(3) of the Texas Code of Judicial Conduct, the Texas Supreme Court states:

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. A judge may continue to hold judicial office while being a candidate for election to or serving as a delegate in a state constitutional convention or while being a candidate for election to any judicial office. (emphasis added)[2]

The Texas Supreme Court explained the reasons behind Canon 5(3) in its Per Curiam Opinion Concerning Amendments to Canons 5 and 6 of the Code of Judicial Conduct dated October 30, 1997, (hereinafter “Per Curiam Op.”). Canon 5(3) comes from the American Bar Association Model Code of 1990, which states:

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 election [or in a special election], except that the judge may continue to hold judicial office while being a candidate for election to or serving as a delegate in a state constitutional convention if the judge is otherwise permitted by law to do so [or while being a candidate of election to any judicial office]. Per Curiam Op., pp. 1-2.

The words appearing in brackets do not appear in the ABA model code but were added by the Texas Supreme Court to Canon 5(3). These additional words provide insight into the Court’s objectives. The addition of “in a contested election” allows judges to remain in office even in a non-judicial race as long as the election is uncontested—a significant departure from the way Article XVI, Section 65 has been interpreted. The section of Canon 5(3) mandating that judges running in non-judicial (contested) elections must resign, implies that judges running in judicial elections need not resign. However, the Texas Supreme Court was not content to rely on inference to guide judges running for judicial office. To further clarify its intentions, the Court added the provision that a judge could stay in office “while being a candidate of election to any judicial office”.

B. The Texas Supreme Court was well aware of Article XVI, Section 65 of the Texas Constitution when it promulgated Canon 5(3). This canon appears to embody the Court’s interpretation of Article XVI, Section 65 as it applies to the judiciary.

[2]The Texas Code of Judicial Conduct is issued by the Texas Supreme Court and incorporated into the TEX. GOV’T CODE, Title 2, Sub. G, App’x B. This canon was originally numbered as 5(4) but was renumbered as 5(3) by amendment dated August 22, 2002. The Texas Supreme Court has never altered the text of the canon since its adoption.

The Texas Supreme Court specifically cites Article XVI, Section 65 in its per curiam opinion.[1] The Court recites the history of the provision and notes that it was adopted in 1954 to lengthen the terms of certain elective offices from two (2) to four (4) years. District and appellate court judges were not included in the restrictions imposed by this provision because they already served four-year terms. The Court notes the disparity in the restrictions on running for office placed on judges in different courts and concludes that “nothing in the language or history of this proviso suggests that it is a conscious policy choice by either the Legislature or the people to give some judges, but not others, free reign to seek non-judicial office. This Court is free to place ethical restrictions on judges which may have the effect of precluding their seeking non-judicial office while serving on the bench.” Per Curiam Op., p. 8 (emphasis added)

In bringing all of the Texas judiciary under Canon 5(3), the Texas Supreme Court relies on the Texas Constitution for its authority to efficiently administer the judicial branch.  TEX. CONST. art. V, Section 31(a). The Court further states that its actions are mandated by Art. V, Section 1-a. The Court sees itself as righting an unintentional discriminatory application of the Texas Constitution’s resign-to-run provision on some judges, but not others. The Texas Supreme Court makes no mention of any restriction Art. XVI, Section 65 places on judges running for judicial office. The Court only seems to acknowledge the constitutional provision’s restrictions on judges seeking non-judicial office.

In adopting Canon 5(3), the Court does not appear to believe it is contradicting Article XVI, Section 65, but merely imposing the provision’s restrictions on all of the judiciary. The Court’s careful and thorough analysis of the need for a “resign-to-run rule” for all judges running for non-judicial offices strongly implies the Court will not hold that judges are constitutionally required to resign when they run for judicial office.

C. The Texas Supreme Court strives to explain why it believes judges may run in judicial elections without resigning. The Court distinguishes between the effect of judicial and non-judicial elections on the integrity of the judiciary and expresses concern that judges running in contested non-judicial elections damage public confidence in the judiciary.

The Court sees three problems with judges running for non-judicial offices: 1) The Code of Judicial Conduct constrains judges from stating opinions on issues because judges must preserve the appearance of impartiality and fairness. These constraints are, nevertheless, “unfair to both candidates and voters in the non-judicial campaign” because they curb debate. Per Curiam Op., p. 4.  2) Running for office entails having to raise large amounts of money to finance a campaign. 3) Contested elections may interfere with the performance of judicial duties. Per Curiam Op., pp. 4-6.

By contrast, the Texas Supreme Court has no problem with judges who want to run for judicial positions. The Court sets out how a non-judicial campaign differs from a judicial one as follows:

[3] https://www.txcourts.gov/All_Archived_Documents/SupremeCourt/AdministrativeOrders/miscdocket/97/97-9186.pdf

First, a non-judicial campaign generally involves more public scrutiny and more diverse demands than an average judicial campaign. Second, a judge’s judicial performance is almost always a pre-eminent issue in a judicial campaign, but may play little or no role in a judge’s campaign for non-judicial office. Finally, all judges must run in judicial elections, and a persuasive case can be made that a judge’s campaign for higher judicial office is a contribution to improving the judiciary; but judicial campaigns for non-judicial office confer no such benefit on the administration of justice. Per Curiam Op., p. 6 (emphasis added)

In other words, judges who run for contested, non-judicial elections must resign because they are not free to engage in the kinds of campaigning and fund-raising running for office requires, without risking the reputation and integrity of the judiciary. Judges running for judicial office, by contrast, need not resign because they are limited to running on their judicial skills and actually improve the judiciary when seeking higher judicial office. Based on this reasoning, the Texas Supreme Court would seem to welcome Judge McLeod’s intention to run for the Texas Supreme Court while he remains on the bench.

CONCLUSION

Over the last twenty (20) years, the Court has not altered one word of Canon 5(3). Its per curiam opinion offers us an inside look at how and why it may rule. Based on the language of Canon 5(3) and the supporting per curiam opinion issued by the Court, it is reasonable to believe the Texas Supreme Court could rule that Judge McLeod has not resigned his office and is well within his rights to actively run for justice of the Texas Supreme Court while he remains on the bench. In light of this canon and per curiam opinion, we respectfully request that the Commissioners’ Court vote to keep Judge William “Bill” McLeod in his position as judge of Harris County Civil Court at Law No. 4 until the Texas Supreme Court has settled the law in this matter.

Very truly yours,

Karen Turbyfill Taylor
Jay A. Taylor

 

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