Untitled Texas Attorney General Opinion ( 2010 )

GREG ABBOTT
April 13,2010
The Honorable Geoffrey I. Barr Opinion No. GA-0769
Comal County Criminal District Attorney
150 North Seguin Avenue, Suite 307 Re: Whether a county commissioner has announced
New Braunfels, Texas 78 130 his candidacy or become a candidate in fact for
election to another office, thereby automatically
resigning the office of county commissioner by virtue
of article XVI, section 65 of the Texas Constitution
(RQ-0836-GA)
Dear Mr. Barr:
Under article XVI, section 65 of the Texas Constitution, certain officers, including county
commissioners, automatically resign their current office if they "shall announce their candidacy, or
shall in fact become a candidate" in an election for another office when the remaining term of their
current office exceeds one year. TEX.CONST.art. XVI, 5 65 (the "resign-to-run provision"). You
ask about the application of that provision to a Comal County Commissioner, whose current term
'
of office expires December 3 1, 20 12. Your request letter includes numerous affidavits, letters,
filings, newspaper accounts and internet printouts that contain conflicting information about a county
commissioner's purported interest in the office of Texas Railroad Commi~sioner.~ You specifically
ask whether, by various statements and actions described in the request letter, the county
commissioner (1) has become a candidate in fact for the office of Texas Railroad Commissioner or
(2) has announced his candidacy for that office, thereby automatically resigning his office as county
commissioner under article XVI, section 65. Request Letter at 9.
The automatic resignation provisions of article XVI, section 65 may be triggered by either
announcing candidacy for another office or becoming a candidate in fact for another office. TEX.
CONST.art. XVI, 5 65; Tex. Att'y Gen. Op. No. GA-0643 (2008) at 3-4. For article XVI, section
65 purposes, this office has determined that "[aln officer 'in fact become[s] a candidate' by formally
applying for a place on the ballot." Tex. Att'y Gen. Op. No. GA-0210 (2004) at 2; accord Tex. Att'y
'See Request Letter at 1 (available at http://www.texasattorneygeneral.gov).
'Id. (Exhibits A-0).
The Honorable Geoffrey I. Barr - Page 2 (GA-0769)
Gen. Op. No. JC-0249 (2000) at 3.3 Your recitation of facts does not suggest that the county
commissioner has applied for a place on any ballot to run for another office. Consequently, in
answer to your first question, we conclude that the facts you describe do not establish that the county
commissioner has become a candidate in fact under article XVI, section 65 of the constitution.
Your second question is whether, from the facts you have described, the county
commissioner has announced his candidacy for another office, resulting in automatic resignation
under the constitution. Relying on the generally understood meaning of article XVI, section 65, this
office has previously explained "that an officer announces candidacy for office by making a written
or oral statement from which a reasonable person may conclude that the individual intends, without
qualification, to run for the office in question." Tex. Att'y Gen. Op. No. GA-0643 (2008) at 6;
accord Tex. Att'y Gen. Op. Nos. GA-0210 (2004) at 2, JC-0249 (2000) at 2. The word "announce:'
as used in article XVI, section 65 indicates that the statement must be public. Tex. Att'y Gen. Op.
No. GA-0210 (2004) at 2 (citing WEBSTER'SNINTHNEWCOLLEGIATE DICTIONARY 87 (9th ed.
1990) for its definition of the word "announce" as meaning "to make known publicly"). Thus, under
prior opinions of this office, an announcement must be both certain and public in order to trigger
automatic resignation. Tex. Att'y Gen. Op. No. GA-0210 (2004) at 2. Generally, a statement
"indicating interest in an office that falls short of announcing a candidacy . . . does not trigger the
resign-to-run provision." Tex. Att'y Gen. Op. No. JC-0249 (2000) at 4. See also Tex. Att'y Gen.
LO-95-071, at 2 (determining that the statement that a person will "seriously consider running" for
an office if the incumbent resigns is not an unqualified statement that may trigger automatic
resignation of the person's current office). Also, a person's statement concerning another office
must be viewed in context to determine if it constitutes an unqualified announcement of candidacy
for that office. Tex. Att'y Gen. Op. No. JC-0249 (2000) at 4 (determining that merely seeking a
party's executive committee's nomination to run for another office is not sufficiently certain to
constitute an announcement of a candidacy under article XVI, section 65, because "the person's
candidacy in the general election is entirely contingent on obtaining the executive committee's
nomination"). By contrast, a person's unqualified statement made in a public meeting or press
release that the person intends to run for aparticular office constitutes an announcement of candidacy
for article XVI, section 65 purposes. Id.
Prior attorney general opinions have considered whether a person's undisputed statement or
action constitutes an announcement of candidacy that triggered automatic resignation under the
constitution. See, e.g., Tex. Att'y Gen. Op. Nos. GA-0210 (2004) at 3 (determining that a justice
of the peace who stated privately that he would be a candidate for another office did not thereby
'As you note, section 25 1.001 of the Election Code broadly defines "candidate7' as a person who "takes
affirmative action for the purpose of gaining nomination or election to public office," or for the purpose of satisfying
campaign fmancial obligations. See Request Letter at 7 (citing section 25 1.001(1) of the Election Code). The statute
gives several examples of such affirmative action, such as filing for a place on the ballot, announcing a candidacy, or
soliciting support or campaign contributions under certain circumstances. TEX.ELEC.CODEANN.9 25 l.OOl(l)(a)--(h)
(Vernon Supp. 2009). However, section 25 1.OO 1 expressly defmes terms for purposes of title 15 of the Election Code,
"Regulating Political Funds and Campaigns." In Attorney General Opinion JC-0249, this office determined that section
25 1.OO 1's definition of the word candidate for those particular statutory purposes does not control the construction of
article XVI, section 65, regarding automatic resignation. Tex. Att'y Gen. Op. No. JC-0249 (2000) at 5.
The Honorable Geoffrey I. Barr - Page 3 (GA-0769)
announce his candidacy under the constitution), DM-377 (1996) at 1-2 (county court at law judge's
statement at a commissioners court meeting that he was "at that moment" a candidate for another
office was an announcement of candidacy that constituted automatic resignation of the current
office). The facts you relate in your request letter, however, are not undisputed. To the contrary, the
facts as described reveal a pronounced disagreement about the content of statements made, actions
taken, and the circumstances in which they occurred. Consequently, we cannot determine as amatter
of law whether the county commissioner has announced his candidacy for another office, thereby
automatically resigning his current office. See Tex. Att'y Gen. Op. No. GA-0643 (2008) at 7 n.4
(explaining that "[tlhis office does not find facts or resolve questions of fact; thus, attorney general
opinions ordinarily answer only questions that can be answered as a matter of law").
The Honorable Geoffrey I. Ban - Page 4 (GA-0769)
S U M M A R Y
The facts as presented in the request do not suggest that the
county commissioner has applied for a place on the ballot for another
office. As a result, they do not establish that he has become a
candidate in fact under article XVI, section 65 of the Texas
Constitution.
The facts presented in the request indicate a pronounced
disagreement about the content of statements made and actions taken
by the county commissioner as well as the circumstances in which
they occurred. Consequently, we cannot determine as a matter of law
whether the county commissioner has announced his candidacy for
another office, thereby automatically resigning his current office.
Attorn
0 G neral of Texas
ANDREW WEBER
First Assistant Attorney General
JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
William A. Hill
Assistant Attorney General, Opinion Committee