Untitled Texas Attorney General Opinion ( 2000 )

July to, 2000
The Honorable Tom O’Connell Opinion No. JG-0249
Collin County Criminal District Attorney
210 South McDonald, Suite 324 Re: Whether a county court at law judge who seeks
McKinney, Texas 75069 the nomination of the executive committee of a
political party to be the party’s general election
candidate for a new office automatically resigns
from office by operation of article XVI, section 65
of the Texas Constitution (RQ-0195-JC)
Dear Mr. O’Connell:
You ask whether a county court at law judge who seeks the nomination of the executive
committee of a political party to be the party’s general election candidate for a new office
automatically resigns from office by operation of article XVI, section 65 ofthe Texas Constitution,
We conclude that a person who merely seeks apolitical party’s executive committee’s nomination
to be the party’s candidate in a general election does not announce his or her candidacy or become
a candidate in fact in a general, special, or primary election within the meaning of article XVI,
section 65 and therefore does not trigger the constitutional provision’s automatic resignation
provision.
You submit your query on behalf of a county court at law judge who wishes to seek
his political party’s executive committee nomination to be the party’s general election candidate
for the vacancy in the office ofjudge of a newly created district court. See Letter from Honorable
Tom O’Connell, Collin County Criminal District Attorney, to Honorable John Comyn, Texas
Attorney General (Feb. 16,200O) (on file with Opinion Committee) [hereinafter “Request Letter”].
Chapter 202 of the Election Code provides for filling vacancies in state or county elective offices
and also applies to an election for the first full term of a newly created office. See TEX. ELEC. CODE
ANN. 5 202.003 (Vernon Supp. 2000). In certain situations, a political party’s nominee to fill a
vacancy or a new office must be nominated by the political party’s executive committee, rather than
by primary election or at a party convention. See id. 5s 202.004-,006. To be nominated by a party’s
executive committee, a person must receive a favorable vote of the majority of the committee
members present. See id. 5 202.006; see also id. 5 145.036(d). You ask if seeking apolitical party’s
executive committee’s nomination to be the party’s candidate for a new office in a general election
constitutes an automatic resignation under article XVI, section 65 of the Texas Constitution.
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Article XVI, section 65 provides that certain elected district, county, and precinct officers
who run for another “office of profit or trust under the laws of this State or the United States” more
than a year before the expiration of their current term of office automatically resign from office.
See TEX. CONST. art. XVI, $65(b). It applies to “Judges ofthe County Courts at Law,” id. art. XVI,
5 65(a), and its automatic resignation provision is triggered by a candidacy for the office of district
court judge, see Tex. Att’y Gen. Op. No. DM-377 (1996) (county court at law judge who announced
candidacy for district court judgeship automatically resigned by operation ofarticle XVI, section 65).
You inform us that the county court at lawjudge at issue has more than a year remaining in his term,
See Request Letter. Therefore, article XVI, section 65 will affect the county court at law judge you
describe if seeking a political party’s executive committee nomination to be the patty’s candidate
for a new office in a general election triggers article XVI, section 65’s automatic resignation
provision.
For purposes of this issue, the operative language of article XVI, section 65 provides as
follows:
If any of the officers named herein shall announce their
candidacy, or shall in fact become a candidate, in any General,
Special or Prima y Election, for any office ofprotit 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 OYsuch candidacy shall
constitute an automatic resignation of the oflice then held, and the
vacancy thereby created shall be tilled pursuant to law in the same
manner as other vacancies for such office are tilled.
TEX. CONST. art. XVI, 5 65(b) (emphasis added),
Attorney general opinions indicate that an officer announces his or her candidacy for office
for purposes of this constitutional provision by making a written or oral statement “[i]f a reasonable
person may conclude from the statement that the individual intends, without qualification, to run for
the office in question,” Tex. Att’y Gen. LO-95-071, at 2. Under these opinions, a person who has
merely stated that he or she will “seriously consider running” for an office if the incumbent resigns
has not announced his or her candidacy. See id. By contrast, a person who states without
qualification in a public meeting or press release that he or she will run for a particular office has
announced his or her candidacy for purposes of article XVI, section 65. See Tex. Att’y Gen. Op.
Nos. DM-377 (1996) (county court at law judge’s statement at a commissioners court meeting that
he was “at that moment” a candidate for a judgeship constituted an announcement for purposes of
article XVI, section 65); WW-1253 (1962) (justice of the peace’s issuance ofpress release stating
that he would be a candidate for another office constituted an announcement for purposes of article
XVI, section 65).
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Opinions of this office are less clear about how one “in fact become[s] a candidate” for
purposes of article XVI, section 65. One opinion suggests in dicta that an officer does not “in fact
become a candidate” until he or she “actually completes the tiling requirements for the office.” Tex.
Att’y Gen. LO-95-071, at 1-2 n. 1. It also assumes “that one may ‘announce his or her candidacy’
without thereby becoming a ‘candidate,’ but that one may never ‘become a candidate’ without
having, either previously or simultaneously, ‘announce[d] his or her candidacy.“’ Id. Another
opinion suggests that an officer announces his or her candidacy for office by the act ofapplying with
a political party to tile for election to an office. See Tex. Att’y Gen. Op. No. JM-132 (1984)
(concluding that officer who applied with a political party to tile for election to a board of directors
ofa water district, an office for which he was ineligible, had announced his candidacy and that it was
irrelevant to the effect of the announcement that he was ineligible to assume the second office).
These opinions conflate the act of announcing a candidacy with the act of applying for a
place on the ballot, muddying what it means to “in fact become a candidate.” Under these opinions
it is not clear, for example, how far into the process of applying, filing, and qualifying for a place
on the ballot one must go before triggering automatic resignation by becoming a candidate. We
conclude that an officer “in fact become[s] a candidate” by the act of applying for a place on the
ballot, Under the Election Code, a person who applies for a place on the ballot does so as a
“candidate.” TEX. ELEC. CODE ANN. 5 141.031 (Vernon Supp. 2000) (“A candidate’s application
for a place on the ballot must .“); see also id. §§ 142.002 (Vernon 1986) (independent
candidate must tile an application complying with section 141.03 l), 143.005 (Vernon Supp. 2000)
(requirements for application of candidate for city office), 144.003 (candidate for office ofpolitical
subdivision other than county or city must make an application for a place on the ballot). Indeed,
the application for most public offices must include a statement that the person, “being a candidate
for” the particular office, will support and defend the constitution and laws ofthe United States and
the State of Texas. See id. 5 141.031(4)(K) (Vernon Supp. 2000). Thus, an officer “in fact becomes
a candidate” by the act of applying for a place on the ballot; it is not relevant to article XVI, section
65 whether the officer is eligible to hold the second office or whether his or her name is actually
placed on the ballot. Attorney General Opinion JM-132 (1984) and Letter Opinion 95-071 are
modified to the extent their reasoning is inconsistent with this analysis.
We have located no court case or attorney general opinion addressing whether the act of
seeking apolitical party’s executive committee’s nomination to be the party’s candidate in a general
election triggers the constitutional automatic resignation provision. Thus, the issue you raise appears
to be a question of first impression. The Texas Supreme Court construes constitutional and statutory
provisions relating to eligibility for office narrowly: “Any constitutional or statutory provision
which restricts the right to hold office must be strictly construed against ineligibility.” Wentworth
Y. Meyer, 839 S.W.2d 766,767 (Tex. 1992) (citing Brown Y. Meyer, 787 S.W.2d 42 (Tex.1990)).
Construing the article XVI, section 65 automatic resignation provision narrowly in accordance with
this rule of construction and prior attorney general opinions, we conclude that an officeholder who
merely seeks a political party’s executive committee’s nomination to be the party’s candidate in a
general election does not automatically resign.
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We conclude that the mere act of seeking a party’s executive committee’s nomination does
not constitute an announcement of a candidacy for office in a general, special, or primary election
within the meaning of article XVI, section 65. When a person seeks a political party’s nomination
to be the party’s candidate in the general election, the person’s candidacy for office in the general
election is entirely contingent on obtaining the executive committee’s nomination. Therefore, we
do not believe that a reasonable person may conclude from the fact that an officeholder seeks his or
her party’s executive committee’s nomination to be the party’s general election candidate that the
officeholder intends, without qualification, to run for the office in question in the general election,
See Tex. Att’y Gen. LO-95-071.
We further conclude that a person does not “in fact become a candidate” by the mere act of
seeking his or her political party’s executive committee nomination. The Election Code does not
provide any formal mechanism for a person to declare his or her interest in an executive committee’s
nomination, and an executive committee is not limited in making a nomination to persons who have
expressed an interest in the nomination. See TEX. ELEC. CODE ANN. chs. 145,202 (Vernon 1986 &
Supp. 2000). The general election candidacy of a person who seeks such a nomination is entirely
contingent upon receiving a favorable vote of the majority of the executive committee, see id.
5 145.036(d) (Vernon Supp. 2000), and having the chair of the executive committee “certify in
writing the nominee’s name for placement on the ballot,” id. 4 145.037(a). Thus, a person who
merely seeks his or her party’s executive committee’s nomination to be the party’s candidate in the
general election does not “in fact become a candidate[] in any General, Special or Primary Election”
for purposes of article XVI, section 65.
We acknowledge that this is a close question. Clearly, a person who has expressed interest
in being his or her party’s nominee in the general election has expressed interest in becoming a
candidate. Given the contingencies involved, however, we cannot conclude that such an expression
of interest constitutes an announcement of candidacy for purposes of article XVI, section 65. See
discussion supra. Furthermore, although such a person has put his name in the running to become
a candidate, he is not yet a candidate. Activity indicating interest in an office that falls short of
announcing a candidacy or becoming a candidate in an election does not trigger the resign-to-run
provision. See Tex. Att’y Gen. LO-96-107 (article XVI, section 65 automatic resignation provision
only triggered by candidacy in an election; it is not triggered by act of seeking gubernatorial
nomination). In addition, although one could argue that seeking a political party’s executive
committee’s nomination is the functional equivalent ofbecoming a candidate in a primary election
and that therefore the automatic resignation provision should be construed to apply to such conduct,
we believe that this broad reading ofthe phrase “in fact become acandidate[] in any General, Special
or Primary Election” would be contrary to the rule of strict construction. See Wentworth, 839
S.W.2d at 767.
Finally, you express concern that section 25 1.OO1 of the Election Code, which defines the
term “candidate” as a person who “takes affirmative action for the purpose of gaining nomination
or election to public office,” includes as an example of affirmative action “the seeking of the
nomination of an executive committee of a political party to till a vacancy.” TEX. ELEC. CODE ANN.
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5 251,001(1)(H) (Vernon Supp. 2000). Your brief states that this provision is unconstitutional
because “it is an attempt by the legislature to define the terms of [article XVI, section 651 and
violates the separation of powers doctrine as an encroachment on the judiciary’s power to interpret
the State’s Constitution.” Brief from Honorable Tom O’Connell, Collin County Criminal District
Attorney, to Honorable John Comyn, Texas Attorney General (Feb. 16,200O) (on tile with Opinion
Committee). We believe this concern is misplaced.
Section 25 1.001 defines the term “candidate” for purposes of title 15 of the Election Code,
which governs campaign contributions and expenditures, reporting requirements, and campaign
advertising. It is within the legislature’s prerogative to define the term “candidate” broadly for these
purposes. While some of the affirmative actions listed in section 25 1.001 may be very relevant to
whether a person has announced a candidacy for office or become a candidate in fact within the
meaning of article XVI, section 65, there is no indication in the statute that the legislature intended
the section 25 1.OOl( l)(H) definition of “candidate” to define the term for purposes of article XVI,
section 65. Compare TEX. ELEC. CODE ANN. 5 251.001(1)(H) (Vernon Supp. 2000), with id.
5 25 1.OOl( l)(A) (including as an affirmative action indicating person is a candidate “the tiling of
a campaign treasurer appointment, except that the tiling does not constitute candidacy or an
announcement of candidacy for purposes of the automatic resignation provisions of Article XVI,
Section 65, or Article XI, Section 11, of the Texas Constitution”). Thus, we do not believe that the
statutory provision controls the meaning of candidate for purposes of the constitutional provision,
Furthermore, as section 25 1.OOl( l)(H) is not dispositive, we need not address whether a statute
purporting to define the constitutional term is within the legislature’s authority.
In sum, a person who merely seeks a political party’s executive committee’s nomination to
be the party’s candidate for a new office in a general election does not trigger the automatic
resignation provisions of article XVI, section 65 ofthe Texas Constitution. Accordingly, it does not
appear that the county court at law judge you describe would automatically resign from his current
office merely by seeking such a nomination.
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SUMMARY
A person who merely seeks a political party’s executive
committee’s nomination to be the party’s candidate for a new office
in a general election does not annOunce his or her candidacy or
become a candidate in fact in a general, special, or primary election
within the meaning of article XVI, section 65 of the Texas
Constitution and therefore does not trigger the constitutional
provision’s automatic resignation provision. Attorney General
Opinion JM-132 (1984) and Letter Opinion 95-071 are modified.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK RENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Mary R. Grouter
Assistant Attorney General - Opinion Committee