February 26, 1970 

Honorable Tom Curtis Opinion No. H-586 

District Attorney 

Potter County Courthouse Rer Whether, under the stated 

Amarillo, Texas 79101 facts, the mayor of Amarillo 

resigned his office upon 

becoming a candidate for 

county judge; and related 

Dear Mr. Curtis: questions. 

In your recent letter to this office you state 

that on February 2, 1970, Mr. J. Ernest Stroud, the incumbent 

mayor of the City of Amarillo , officially filed and announced 

as a candidate for the office of county judge of Randall 

County, and, at that time the unexpired term of his office 

as mayor exceeded one year. 

the following questions: 

You request our opinion upon 

"1. Did the incumbent mayor becoming a 

candidate for Randall County Judge:constitute 

an automatic resignation' offhis office as 

mayor, under the provisions of Article XI, 

Section 11 of the T.*xas Constitution7 

"2. If such did constitute an automatic 

resignation, on what date did that rerlgnation 

occur? 

"3. In the event that your opinion as 

to question No. 1 is that no automatic resfgnation occurred, does the mayor’s action in becoming a candidate for Randall County Judge 

otherwise affect his tenure in office pursuant 

to any other constitutional provisiona or 

statutes of the State of Texas? 

"4" In the event your opinion as to 

question No. 1 is that an automatic resignation did occur, and the City Charter provides 

for the filling of the vacancy thereby created 

by appointment by vote of the city commissioners, 

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Hon. Tom Curtis, page 2 (M-586, 

does the procedure set forth in ,ihe third paragraph of Article XI, Section 11 c:rltrol the 

manner in which the vacancy must tt- filled 

notwithstanding any provisions of the City 

Charter to the contrary?" 

The authority and responsibility of this office to 

render official opinions is restricted by he provisions of 

Article 4399, Vernon's Civil Statutes. That article does not 

confer upon this office any authority to advise cities', towns 

or villages upon questions of municipal law. It has further 

been the long standing policy of this office to advise those 

officiala, boards and agencies mentioned in Article 4399 

only insofar as the facts and questions submitted relate to 

their official duties, authority or reaponsibilities.~ Since 

the questions you have submitted relate to municipal law, we 

are authorized to advire you only in the event the answers 

will in some way involve your official duties, authority or 

responsibilities. 

Under the provisions of Article 6253, Vernon's Civil 

Statutes, district attorneys, inter alia, have authority to 

institute quo warrant0 proceedings to determine a person's 

right to occupy certain public offices, including that of 

mayor of a city, town or village. Therefore, since the answers 

to your questions relate to your authority under Article 

6253, we will proceed to consider rue. 

Section 11 of Article XI of the Constitut? -. .; 

Texas provides as follows: 

"Sec. 11. A Home Rule City may provide by 

charter or charter amendment, and a city, town 

or village operating under the general law6 may 

provide by nujority vote of the qualified voters 

voting at an election called for that purpome, 

for a longer term of office than two (2) years 

for its officorr, either elective or appointive, 

or both, but not to exceed four (4) years1 provided, however, that tenure under Civil Service 

l hall not be affectad hereby. 

*Provided, howavar, if any of ruch officers, 

l leotivo, or apgointive, mhall announce their 

candidacy, or ahall in fact become a candidate, 

in any general, rpecial or primary election, for 

any office of profit or trurt under the laws of 

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Hon. Tom Curtis, page 3(~-5SSj 

this State or the United States other than the 

office then held, at any time wh:.? the unexpired 

term of the office then held shall exceed one 

(1) year, such announcement or euci candidacy 

shall constitute an automatic resignation of the 

office then held, and the vacancy thereby created 

shall be filled pursuant to law in t?e same manner as other vacancies for such office are filled. 

"A municipality SO providing a term exceeding two (2) years but not exceeding four (4) 

years for any of its non-civil service officers 

must elect all of the members of its governing 

body by majority vote of the qualified voters in 

such municipality, and any vacancy or vacancies 

occurring on such governing body shall not be 

filled by appointment but must be filled by 

majority vote of the qualified voters at a 

special election called for such purpose within one hundred and twenty (120) days after such 

vacancy or vacancies occur." 

Prior to the adoption of Section 11 of Article XI 

at the general election in 1958, the term of office for all 

city officers was limited by Section 30 of Article XVI of the 

Constitution of Texas to a maximum of two Learn. However, 

under the plain and unambiguous language of Section 11 of 

Article XI no automatic :xteneion of the terms of offir: of 

city officers is effectuated. To the contrary, th: ~~-h~rit:l 

to extend terms of city officials under this pravi.,ion is 

optional and can only be exercised by a "majority vote of tr.e 

qualified voters voting at an election called for that purpose.* 

At the present time the City of Amarillo has not 

exercised the option to extend the terms of its officers 

pursuant to Section 11 of Article Xl, and, Article V, Section 

2, of the city charter currently provides for two-year terms 

for the offices of mayor and city commissioner. 

It is beyond question that the second paragraph of 

Section 11 of Article XI applies to city officers whose term 

of office is longer than two years, and, when such an officer 

becomes a candidate for any other office of profit or trust 

under the laws of this State or the United States he automatically resigns the city office then held. Whether this 

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Hon. Tom Curtis, page 4 (M-586, 

same provision applies with equal for.‘e and effect to city 

officers whose terms of office do not vceed two years is a 

question which lends itself to persuasive arguments upon both 

sides. We have concluded that the seconL paragraph of Section 

11 of Article XI has no application other than to city officers whose terms have been extended beyond two years pursuant to the other provisions of such eect',on. 

Rules of construction for statutes apply also to 

the construction of constitutional provisions. 12 Tex,Jur.Zd 

362, Const.Law 914. In determining the extent of the application of the second paragraph of Section 11 of Article x1 

we must consider Section 11 of Article XI in its entirety and 

consider each part of the provision in relation to every 

other part in order to produce a harmonious whole which comports with its overall purpose. 53 Tex.Jur.Zd 229-232, 

Statutes 9160. The primary subject matter and purpose of 

Section 11 of Article XI is the extension of the terms of 

office of municipal officers beyond the two year limitation 

imposed by Section 30 of Article XVI. Viewing Section 11 of 

Article XI as a whole, we are of the opinion that it relates 

to one class of city officers, i.e., those whose term of 

office has been extended beyond two years, and that the portion 

which relates to the automatic resignation of one who becomes 

a candidate for another office has no application to city officers whose terms have not been extended beyond two years, 

The very language of the paragraph relating to automatic 

resignation lends itself Yogically to this application because it says "if any of such officers . e . shall a:-- . ..e 

their candidacy, or shall in fact become a candidate , the 

term such officers referring to city office-? whcze terms of 

office have been extended beyond two years. Although this 

conclusion treats city officials with terms of longer than 

two years differently from those city officials with terms 

of two years it is not a matter which we are empowered t9 

correct. The power to amend and change the Constitution is 

reposed solely in the people. Carpenter v. Sheppard, 135 

Tex. 413, 145 S.W.Zd 562 (1940). The apparent anomaly is not 

without parallel.. See Hall v. Baum, Tex,Sup., opinion delivered -February 16, 1970 holding that the prohibition of 

Section 18 of Article III'of the Constitution of Texas prchibited one class of senators from being eligible to the 

office of governor but did not render ineligible the remainder of the members of the senate or the members of the 

house of representatives. 

Accordingly, in answer to your first question, you 

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Hon. Tom Curtis, page 5 (M-5t"l 

are advised that the candidacy of the mayor of the City of 

Amarillo for the office of county juire of Randall County 

did not constitute an automatic resig.:.ltion as mayor under 

the provisions of Section 11 of Article XI of the Constitution 

of Texas. 

In view of our answer to your :‘iret question, no 

answer is required to your second queetict. 

We pass now to the question of whether, under the 

. facts presented, the tenure in office of the mayor of the 

City of Amarillo is affected by any other constitutional provision. 

You have subsequently advised us by telephone that 

the charter of the City of Amarillo provides that the mayor 

shall receive the sum of $10 per week and all necessary expenses in the. performance of his official duties. The office 

of county judge entitles the holder thereof to a salary and 

other specified expenses connected with such office. 

Section 40 of Article XVI of the Constitution of 

Texas provides in part as follows: 

"No person shall hold or exercise, at the 

same time, more than one civil office of emolument, except . . .I 

In Willis v. Potts, 377 S.W.ld 622 (Tex,E.*- 1264). 

it was held that a citv councilman of the Citv of t>rt Worth 

who was entitled to 6520 per year plus nerassary expenses 

incurred in the performance of official duties occupied a 

"lucrative office under this State" within the meaning of 

Section 19 of Article III of the Constitution of Texas. We 

hold that the office of mayor of the City of Amarillo, which 

carries with it the same salary and expenses as in the Potts 

case, is a civil off ice of emolument within the meaningdf 

Section 40 of Article XVI. The term emolument as used in this 

provision means a pecuniary profit, gain or advantage; the 

compensation authorized to be paid for the services of the 

officer. Irwin v. State, 177 S.W.2d 970 (Tex.Crim.App. 1944) I 

The term civil office is used and understood to distinguish 

one from a military officer and coverts all officers whether 

their duties are executive, legislative or judicial. State 

165 Tenn. 381, 54 S.W.2d 941 (1932). The office of 

the City of Amarillo fits both criteria. 

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Hon. Tom Curtis, page 6(M-586 

It must likewise be concedrd that the office of 

county judge is a civil office of emo?*unent within the meaning 

of Section 40 of Article XVI. As a cc..sequence, one person 

may not at the same time hold the officts of mayor of the City 

of Amarillo and county judge. In the event that the mayor of 

the City of Amarillo is succeesful in hi- candidacy for the 

office of county judge of Randall County and accepts and qualifies for the latter office, such acceptan&? and qualification 

will constitute an automatic resignation oi the office of mayor. 

The prohibition of Section 40 of Article XVI allows of no 

other result. State v. Brinkerhoff, 66 Tex. 45, 17 S.W. 109 

(1886); Ddem V* Sinton Ind. Sch. Diet., 234 S.W. 1090 ,(Tex. t 

Sup. 1921); Pruitt v. Glen Rose Ind. Sch. Diet. No. 1, 126 

Tex. 45, 84 S.W.Zd 1004 (1935); State v. Valentine, r98 S-W, 

1006 (Tex.Civ.App. 1917, error ref.). 

In answer to your third question, you are advised 

that although mere candidacy of the mayor of the City of 

Amarillo for the office of county judge does not affect his 

tenure as mayor, because of the prohibition against dual office 

holding contained in Section 40 of Article XVI of the Constitution of Texas, if the mayor is elected and qualifies for the 

office of county judge he will automatically resign as mayor 

of the City of Amarillo. 

No answer is required for your fourth question. 

Section 11 of Article XI of the Conetitr;i.on 

of Texas requiring the resignation of elective or 

appointive city officers upon their candidacy for 

any other office of profit or trust under this 

State or the United States applies only to those 

'city officers whose terms of office exceed two 

years. Since the term of office of the mayor of 

the City of Amarillo has not been extended beyond two years this provision of the Constitution 

does not effectuate an automatic resignation as 

mayor upon his candidacy for.county judge of 

Randall County. 

The office of mayor of the City of &narillo 

and the office of county judge ue civil offices 

of emolument within the meaning of Section 40 of 

Article XVI of the Conutitution of Taxae. Since 

-2797- 
lion. Tom Curtis, page 7&l-586, 

this provision prohibita one person from holding 

more than one civil office of em lument, if the 

mayor of the City of Amarillo ia elected and 

qualifies as county judge of Randall County, 

the qualification fot the latter office ahall 

ipso facto comtitute a resignation of the office of mayor. 

General of Texas 

Prepared by W. 0. Shultz 

Assitstant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kern8 Taylor, Chairman 

W. E. Allen, Acting Co-chairman 

John Grace 

Jack Dillard 

Harold Kennedy 

Pat Cain 

John Reeve8 

MEADE F. GRIFFIN 

Staff Legal Amietant 

ALPREDWALKER 

Executive Assistant 

NOLA WHITE 

First Aanistant 

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