Question raised about McKee’s status as district attorney

By Michael V. Hannigan

A question has been raised about the propriety of R. Scott McKee continuing to be district attorney after announcing his candidacy for the 392nd District Court bench. (Hat tip to Rich Flowers of the Athens Daily Review for first reporting on this issue.)

It is an interesting question.

McKee has been the Henderson County District Attorney since 2009 and in September issued a press release to local media officially announcing his intentions to run for judge instead of re-running for DA.

The primary for this election cycle is March 1, 2016, with the general election on Nov. 8, 2016. Winning candidates will take office in January 2017.

Those details are important, because according to the Texas Constitution (Art. 16, Sec. 65), district attorney is one of the positions where announcing your candidacy for a different office is like giving an automatic resignation for your current office — if there is more than one year and 30 days left in your term.

McKee officially filed for office on Dec. 3, but according to several Texas Attorney General opinions, an automatic resignation is triggered when a candidate makes an announcement that is “certain and public.”

I can think of few things as certain and public as a press release, so it appears McKee automatically resigned in September.

That does not mean he has to leave his current office, however. In fact, the State Constitution forbids him to leave.

According to Article 16, Sec. 17, “All officers within this State shall continue to perform the duties of their offices until their successors shall be duly qualified.”

This is called being a “holdover,” and means McKee must continue to be the district attorney until his successor is in place.

So who gets to replace a district attorney in case of a vacancy? It is the governor.

Interestingly, I found that answer in an Attorney General’s Opinion about Henderson County from back in 1983. The important part of that opinion with respect to McKee reads like this:

“… (T)he same provisions apply to filling a vacancy in an office of a district judge and filling a vacancy in an office of a criminal district attorney. … The Texas Constitution provides that a vacancy in the office of a district judge shall be filled by appointment of the governor …”

So, McKee is required by law to remain as district attorney until he is replaced by the governor or until a new DA is selected in the next general election.

McKee told the Athens Review, “I’ve been in contact with the Governor’s Office and I’m going to continue to serve at his pleasure until Jan. 1, 2017.”