New JP will also be a PSJA trustee?

An unusual occurrence may be in play with regard to the Democrat JP primary win last Tuesday by PSJA ISD Board Trustee Cynthia Gutierrez.

Some people are asking, will she have to step down as board trustee next January, or can she retain her current board seat?

The man she is replacing, longterm JP “Bobby” Contreras, who passed away last July after sitting on the Hidalgo County Precinct 2, Place 1, seat for 25 years, was in the exact same spot when he was sworn into office in 2000. At the time, he had been on the school board for 12 years.

Contreras voluntarily stepped down as board trustee because, as he said at the time, he wanted to devote all his attention to the court.

“Serving as JP is a full-time job,” he said. “Being a board trustee takes time, too, especially if you actually read through the board packet before each meeting. I can’t see doing both without doing an injustice to one or the other.”

What the Law Says

Since Gutierrez will face no Republican candidate in the November general election, because no one ran on the GOP side, Gutierrez’s Jan. 1, 2027, swearing-in ceremony is a shoo-in.

But what about her schoolboard seat? To figure that out, one has to look at the Texas Constitution, which prohibits one person from simultaneously holding more than one paid public office (civil office of emolument).

The key word is “paid.” The state doesn’t want one person drawing two paychecks from the taxpayers.

There is, however, a loophole in Article XVI, Section 40 of the constitution, which lists a few public offices that are exempt from the dual-office ban, and Justice of the Peace is right near the top of the list.

Also, because public school board trustees serve for free, the school board seat isn’t considered a “civil office of emolument.”

Meaning, Cynthia Gutierrez will be in the clear come next January: her job at Judge Contreras’s old office, as this county’s new JP in Precinct 2, will pay her bills, while her gig at PSJA ISD is categorized as an unpaid public service.

The Lawsuit

Like almost everything under the sun, this, too, in past years, landed in court – the JP question.

In 1983, a lawsuit was filed titled Turner v.Trinity ISD.

This has since been the primary legal case cited during dual discussions — JP and board trustee rolled into one person.

A lawsuit was filed arguing that a specific individual, who was serving as a Justice of the Peace, could not simultaneously serve as a trustee for the Trinity Independent School District.

That lawsuit got deep into the constitutional weeds — Separation of Powers.

Since the JP was part of the judicial branch, and a board trustee was part of the executive branch, the two were incompatible. So said the plaintiff in that case.

The Texas Court of Appeals ruled in favor of the JP, allowing him to retain both jobs, so to speak. The court found no evidence that the duties of a JP interfered with the duties of a school board trustee.

In other words, they were not “incompatible” with one another.

Back in the late 1990s, the Texas AG’s office looked at a similar case and suggested that a justice of the peace and a school trustee could indeed coexist. The logic was that a justice of the peace has “limited jurisdiction” and doesn’t usually oversee the school board’s business. If a school case did end up in the judge’s court, he/she could simply make a motion to recuse.

The only caveat to that being, a few years earlier, the AG ruled that a county attorney couldn’t sit on a school board because of “conflicting loyalties.” The argument being, a county lawyer cannot be fully loyal to the county’s interests while also protecting the school district’s interests if they ever clashed over taxes, land, or local ordinances.

Since a justice of the peace is not a county attorney, and in fact, most JPs in Hidalgo County have never gone to law school, the argument falls back on the Texas Constitution, which clearly exempts JPs from any dual-office ban someone might throw at them in a court of law.

Unless Gutierrez voluntarily does what Bobby Contreras did 26 years ago, resign from the school board after assuming the new duties of JP, Cynthia Gutierrez will serve out the two remaining years of Contreras’s current term. She will then have to run again for reelection in the March 2028 Democrat primary.

Her term as PSJA ISD board trustee, should she choose to stay, expires in November 2028.