Untitled Texas Attorney General Opinion ( 1996 )

Office of tfp IZIttornep&mral
%tate of PCexas
5 DAN MORALES
.ATT,>RSEY
GLSLH.,, February 7,1996
The Honorable Robert Newsom OpinionNo. DM-377
Hopkins County Attorney
110 Main Street Re: Whether a county court at law judge,
Sulphur Springs, Texas 75482 with an unexpired term greater than one
year, who declared at a county commis-
sioners court meeting that he was a
candidate for the district judgeship has
announced his candidacy or “‘infaa become
a candidate” for purposes of article XVI,
section 65 of the Texas Constitution and
related questions (RQ-820)
Dear Mr. Newsom:
You indicate that, at the March 27, 1995, meeting of the Hopkins County
CommissionersCourt, the county court at law judge (the “judge”) stated he was “at that
moment” a candidate for the judgeship of the Eighth Judicial District Court. You have
included with your letter a copy of a newspaper article that provides the following account
of the judge’s remarks at the March 27, 1995. meeting of the Hopkins County
CommissionersCourt:
It is my pledge to you gent[le]men, as well as the people of
Delta, Hopkins, Franklin and Rains counties, that upon taking office I
will do whatever is necessary to promptly and efficiently conduct
their legal business. . . It’s certainly something I’ve thought about
for some time, but it was so far away, it seemed ridiculously
premature. . [After the present district judge amtounced that he
did not intend to seek re-election], it became clear the only
reasonable course of business was to announce for the Eighth
bench. . .
I’ve worked hard to make the County Court-At-Law a pop&r
court. . . I believe it will be possible to do the same to the district
COW-t.
Bruce Alsobrook, Cable Seeking Eighth DistrictJudge Position, THENEWS-TELEGFMM,
(Sulphur Springs), Mar. 27, 1995, at 1, 10.
The Honorable Robert Newsom - Page 2 @M-377)
You also state that, at the time of the commissionerscourt meeting, the unexpired
term of the judge’s current offtce exceeded one year. With this situation in mind, you ask
several questions about article XVI, sections 17 and 65 of the Texas Constitution.
You first ask whether the judge’s declarations at the county commissioners court
meeting constitute an announcement for purposes of article XVI. section 65. The final
paragraph of article XVI, section 65 provides as follows:
[I]f any of the officers named herein [includinga county court at law
judge] shall announce their candidacy, or shall in fact become a
candidate, in any General, Special or Primary Election, for any office
of profit or trust under the laws of this State or the United States
other than the office then held, at any time when the unexpired term
of the office then held shall exceed one (1) year, such announcement
or such candidacy shall constitute an automatic resignation of the
office then held, and the vacancy thereby created shall be filled
pursuant to law in the same matureras other vacancies for such office
are filled.
To %nnounce” is “‘to deliver news; to make public or oflicial intimation of to
proclaim . . .* 1 THE OXFORDENGLISHDICTIONARY 485 (2d ed. 1989). On the
assumption that the county judge made the statements reported in the newspaper, we
conclude. as a matter of law, that the county judge has announced his candidacy or has ‘in
fact become a candidate”for purposes of article XVI, section 65. Consequently, pursuant
to article XVI, section 65, the county judge has automatically resigned his office. See
Attorney General OpinionsIM-395 (1985) at 4, WW-1253 (1962) at 3.
Your second question concerns the interrelationshipof atticle XVI, section 65 and
article XVI, section 17 of the Texas Constitution, which provides that “[a]li officers within
this State shall continue to perform the duties of their offices until their successors shall be
duly qualified.” The purpose of this provision is to prevent vacancies in office and the
consequent cessation of the finctions of government. Pluins Common Consol. Sch. Dist.
No. I v. Hayhrrrst,122 S.W.Zd 322 (Tex. Civ. App.-Amarillo 1938, no writ). You ask
whether an officer who, with more than one year remaining in his term of office,
amtounces his candidacy for another of& and who therefore automatically resigns the
current office pursuant to article XVI, section 65 remains in office pursuant to article
XVI, section 17 until a successor is duly qualified.
Attorney General Opinion WW-1253 (1962) addressed this question and
concluded that the officer held over under article XVI, section 17. This conclusion was
followed in Attorney General Opinions C-43 (1963) and H-161 (1973). However,
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because of the time that has passed since this office considered the interaction of sections
17 and 65 of article XVI, we will address your question.
The “resign to run” paragraph was added to section 65 in November 1958. HI.
Res. No. 31,55th Leg., R.S., 1957 Tex. Gen. Laws 1641; Amendmentsto Constitution of
Texas, 1959 Tex. Gen. Laws I[XXV,XXXVIII. Article XVI, section 65 had been adopted
in 1954 to extend the terms of certain county officers from two to four years, TEXAS
LEGISLATIVE COUNCIL, INFORMATION CONCERNING CONSTITUTIONAL ,~~~ENDMENTS TO
BE CONSIDEREDNOVEMBER 4, Amena?nenrNo. 4 - HJ.R. No. 31 1 (1958); see S.J. Res.
No. 4, 4 12. 53d Leg., R.S., 1953 Tex. Gen. Laws 1164, 1166; Amendments to
Constitution of Texas. 1955 Tex. Gm. Laws Xxxv, XLIV. The terms were staggered so
that approximatelyone-half of the ofiices are regularly filled by election every two years.
TEXASLEGI~I,,~TWE COUNCIL, supru, at 1. The increase in term length made it possible
for county officers to devote almost their entire terms to the duties of office, in contrast to
the old system of having to run for re-election one year out of every two. Id. at 2
(arguments for amendment). However, the staggered four-year terms of office made it
possible for an officer to run for a different office at the general election in the middle of
his temt, thus defeating the purpose of the 1954 amendment-to pemtit an official to give
his undivided attention to his office for at least three years. Id. at 1. The legislature
proposed the “resign to run” provision to correct this result of the 1954 amendment. Id.;
see uh Attorney General OpinionWW-788 (1960) at 3 (citing press reports). *
We do not know of any judicial decision that addresses the interaction of sections
17 and 65 of article XVI. but we are aware of numerous judicial decisions and Attorney
General Opinions concluding that article XVI, section 17 does not apply in when an
officer vacates the office pursuant to other constitutional provisions. The Texas Supreme
Court determined, in Pruitt v. Glen Rose Independent School District No. 1, 84 S.W.Zd
1004, 1007 (Tex. 1935). that article XVI. section 17 did not apply to an officer who has
“stepped down” from office by operation of article XVI, section 40, which prohibits, with
certain specified exceptions, any person from simultaneouslyholding “more than one civil
office of emolument.” See also State ex rel. Peden v. Valentine. 198 S.W. 1006, 1007
(Tex. Civ. App.--Fort Worth 1917, writ refd) (upon acceptance of second, incompatible
office, first office is ipso facto vacated). In L-owev. Sfufe, 201 S.W. 986 (I’ex. Grim. App.
1918), the Texas Court of Criminal Appeals determined that article XVI, section 17 does
not apply to an officer who is ineligible under article XVI, section 12 of the Texas
Constitution to hold or exercise an office of profit or trust under this state because he or
she holds or exercises an office of profit or trust under the United States. Id. at 986; see
‘AttorneyGenera1OpinionWW-788 statedthat anotherpnpc of the 1958 amendment to
mticle XVI. section 65 of the constitution
wasIOreducelbe durationofsppointotents.AtmmeyGeneral
OpinionWw-788(1960)at 3.
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Attorney General Opinion DM-49 (1991); see also Attorney General Opinions TM-1161
(1990) (article XVI, section 17 is inapplicable when senate has refused to approve
governor’s appointment to ofice), lM-423 (1986) (same), O-3343 (1941) (same), M-151
(1967) at 4 (judge who reaches page of 75, whose “office . . shall become vacant”
pursuant to article V, section l-a of Texas Constitution does not hold over under article
XVI, section 17).
Although the cases and prior opinions of this office suggest that article XVI.
section 17 generally does not apply to vacancies created by operation of the constitution,
we believe that article XVI, section 65 may be distinguished from the authorities cited.
Attorney General Opinion WW-1253, in reaching its conclusion that article XVI, section
17. applied to officers who automatically resigned, stated that “an officer whose
resignation has been effected but whose successor has not been appointed retains the
position as a ‘de jure’ officer.” Attorney General Opinion WW-1253 (1962) at 3. This
conclusionwas based on the following authorities: Jones v. Cig ofJe#erson, 1 S.W. 903
(Tcx. 1886), Plains Common Consolidated School District No. I v. Hayhurst, 122
S.W.Zd322 (Tex. Civ. App:-Amarillo 1938, no writ), Keen v. Featherston, 69 S.W. 983
(‘kx. Civ. App. 1902, writ refd), and Attorney General Opiions V-760, O-855 (1939)
and O-761 (1939). Except for Attorney General Opinion V-766, which recites the
purposes of article XVI, section 17, these authorities state that an officer whose
resignation has been tendered to the proper authority and accepted continues in office until
his successor is appointed and qualifies. See Jones v. City ofJefferson, 1 S.W. at 905;
Plai,rc Common Consol. Sch. Dist. No. 1 v. Hayhurst, 122 S.W.2d at 326. Anomey
General Opinion H-161, addressing the automatic resignation of a justice of the peace
under article XVI, section 65, states as follows in regard to article XVI, section 17:
The recognized purpose of this provision is to insure against
vacancies in office and a consequent cessation of the functions of
government. Section 17 provides for o!Scers to hold over in the
perfortnance of the duties of office, even after resignation until a
successor has been elected or appointed and has qualified. The
officer who has resigned retains his position, in spite of his
resignation, as a de jure officer.
Attorney General OpinionH-I 6 I (I 973) at 2,
Article XVI, section 65, pertains to the “automatic resignation” of officers, and
Attorney General Opinions WW-1253 and H-161 construe this provision consistently with
the well-established rule about resignations: that an officer holds over until his
replacement is appointed and qualifies, even atIer his resignation is tendered and accepted.
We believe the prior opinions of our office correctly relied on the express language of
article XVI, section 65, and correctly concluded that persons who automatically resign an
office pursuant to that provision still hold over in office until a successor is appointed and
qualifies.
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Other constitutional provisions creating vacancies use different, and often stronger,
language than section 65. Article XVI, section 40, does not refer to a resignation, but
states that “[n]o person shall hold or exercise at the same time, more than one civil office
of emolument,” Article XVI, section 12, states that persons holding or exercising certain
federal offices shall not “be eligible”for offices of profit or tNSt under this state. Article
XVI, section 14 states that offtcers who do not reside with the appropriate jurisdiction
“shall vacate the office so held.” Article V, section l-a provides that when a judge reaches
the age of 75, his “office . . shall become vacant.” None of these constitutional provision
incorporate the concept of resignation or the body of law related to that term.
As commentators have noted, the policy served by the “resign to run” provision, to
limit the time during which a county officer may campaign for other office, does not apply
to all officeholdersin the state. “If it is thought generally that officeholders should forfeit
their positions when they amtounce for other officers, the provision should apply to
members of the legislature and statewide elected officials as well as those named in this
section.” GEORGED. BRADEN,THE CONSTITUTION OF TIE STATE OF TEXAS: AN
ANNOTATED AND COMPARATIVEhWLYSIs 813 (1977); ,see genera& elements v.
Fashing, 457.U.S. 957, 970 (1982). The limited application of the automatic resignation
requirement suggests that it may be less weighty than other, more generally applicable,
constitutional provisions. Moreover, the policy underlying section 65 will still be
effectuated when the officer’s replacement is appointed and qualities. Under the
circumstances, we believe we should give great weight to the public policy encompassed
in article XVI, section 17-the preservation of the orderly processes of government. See
Ex parre Sanders, 215 S.W.Zd 325 (Tex. 1948). Accordingly, an officer who
automatically resigns an office pursuant to article XVI, section 65 will hold over in office
pursuant to article XVI, section 17 until a successor is appointed and qualifies. We aflirm
the conclusions of Attorney General Opinions WW-1253, C-43, H-161, and opinions
relying on them.
Your third question asks whether the commissionerscourt may appoint the judge
who has resigned pursuant to article XVI, section 65 of the constitution to the now-vacant
office of county court at law judge--the same post from which the judge has resigned.
This office concluded in Attorney General Opinion WW-788 that an officer who
automatically resigns his offtce pursuant to article XVI, section 65 of the Texas
Constitution is ineligiblefor appointment to fill the vacancy created in his office. Attorney
General Opinion WW-788 (1960) at 8 (summary); see ulso Attorney General Opinion
WW-1253 (1962) at 3-4. We believe this conclusionis sound, and we a&n it here.
We need not answer your fourth and fifth questions, which assume that the officer
does not hold over after his automatic resignation. See generuh) Attorney General
Opinion H- 161. Your sixth and seventh questions focus on the procedure the county must
use to fill the vacancy created by the judge’s candidacy. Article XVI, section 65 of the
Texas Constitution states, “[T]he vacancy. shall be filled pursuant to law in the same
manner as other vacancies for such offtce are tilled.” Section 25.0009(a) of the
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Government Code requires the county commissionerscourt to appoint an individualto fill
a vacancy in the offtce of judge of a statutory county court. “The appointee holds offtce
until the next general election and until the successor is elected and has qualified.” Gov’t
Code 0 25.0009(b).
Nothing in section 25.0009, nor in any other statute of which we are aware,
specifies a particular time period within which the commissioners court must appoint a
new judge. Moreover, we are unaware of any statute specificallyprescribing procedures a
wmmissioners court must use to appoint an individualto the office of county wurt at law
judge. Under the Gpen Meetings Act, Gov’t Code ch. 55 1, the commissioners court may
deliberate the appointment in a closed meeting, although the commissioners must vote on
the appointment in a meeting open to the public. See Gov’t Code 55 551.074(a)(l), .102.
SUMMARY
Under the facts presented, the county court at law judge of
Hopkins County has announced his candidacy or has “in fact become
a candidate”as a matter of law for purposes of article XVI, section
65 of the Texas Constitution. Thus, pursuant to article XVI, section
65, the county judge has automaticallyresigned his office. However,
he continues to hold over in his office under XVI, section 17 of the
Texas Constitution, until his successor is appointed and qualifies for
office. Attorney General Opinions WW-1253 (1962), C-43 (1963),
and H-I 61 ( 1973) are affirmedon this issue.
Attorney General Opinion WW-788 (1960). which concluded
that an officer who automaticallyresigns his office pursuant to article
XVI, section 65 of the Texas Constitution is ineligible for
appointment to till the vacancy created in his office, is affirmed.
Sectjon 25.0009(a) of the Government Code rquires the county
commissionerswmt to appoint an individualto fill a vacancy in the
offtce of judge of a statutory county wurt. Nothing in section
25.0009, nor in any other statute of which we are aware, specifies a
particular time period within which the wmmissioners court must
appoint a new judge; nor does any statute specifically prescribe the
procedure a commissioners court must use to appoint an individual
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to the office of county court at law judge. The commissioners court
must, of course, comply with the Open Meetings Act, Gov’t Code
ch. 55 1, in appointing the new county court at law judge.
DAN MORALES
Attorney General of Texas
JORGE VEGA
First Assistant Attorney General
SARAH J. SHIRLEY
Chair, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
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