February 26, 1970

Honorable Tom Curtis Opinion No. H-586 District Attorney Potter County Courthouse Rer Whether, under the stated Amarillo, Texas 79101 facts, themayor 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 incumbentmayor becoming a candidate for Randall County Judge:constitute an automatic resignation' offhis office as mayor, under theprovisions 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 thatno automatic resfgna**tion** occurred, does themayor’s action in becoming a candidate for Randall County Judge otherwise affect his tenure in officepursuant to any other constitutionalprovisiona 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 theCity Charterprovides for the filling **of** thevacancy thereby created by appointment by vote of the city commissioners,

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does theprocedure set forth in ,ihethird paragraph of Article XI, Section 11 c:rltrolthe manner **in** which thevacancymust tt-filled notwithstanding any provisions of the City Charter to the contrary?"
The authority and responsibilityof this office to render official opinions is restrictedby 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 tomunicipal law,we are authorized **to** advire you only in the event the answers will in someway involveyour 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** certainpublic **offices,** including that of mayor of a city, town or village. Therefore, since the answers **to** your questions relate **to** your authorityunder Article 6253,we will proceed to consider rue.

Section 11 of Article XI of theConstitut? -..; 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** provideby nujority vote of the qualified voters voting at an election called for thatpurpome, **for** a longerterm 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 factbecome a candidate, in any general, rpecialor **primary** election, for any office **of** profit or trurt under the laws of

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this **State** or the United States other than the office then held, at any timewh:.?theunexpired 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 filledpursuant to law in t?e samemanner as other vacancies for such **office** are filled.

"Amunicipality 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 themembers of its governing body by majority vote of the qualifiedvoters in suchmunicipality, and any vacancy or vacancies occurring on suchgoverning body shallnot be filled by appointmentbutmust be filledby majority vote of the qualified voters at a special election called for suchpurposewithin 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 officerswas limitedby Section 30 of Article XVI of the Constitution of Texas to amaximum of two Learn. However, under the plain and unambiguous languageof Section 11 of Article XI no automatic :xteneionof the terms of offir: of city officers is effectuated. To the contrary, th: ~~-h~rit:l to extend terms of city officials under thispravi.,ionis optional and can onlybe exercised by a "majorityvote of tr.e qualified voters voting at an election called for thatpurpose.*

At thepresent 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 secondparagraph of **Section** 11 of Article XI applies to city officerswhose term of office is longer than twoyears, and,when such an officer becomes a candidate for any other office of profit or trust under the laws of this Stateor the United States he automatically resigns the city office then held. Whether this

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same provision applies with equal for.‘e and effect to city officerswhose terms of office do not vceed twoyears is a questionwhich lends itself topersuasive arguments upon both sides. Wehave concluded that the seconLparagraph of Section 11of Article XI has no application other than to city officerswhose terms have been extended beyond twoyears pursuant to the other provisions of such eect',on.

Rules of construction for statutes apply also to the construction of constitutionalprovisions. 12 Tex,Jur.Zd 362,Const.Law 914. In determining the extent of the application of the secondparagraph of Section 11 of Articlex1 we must consider Section 11 of Article XI in its entirety and consider each part of theprovision in relation to every otherpart in order toproduce a harmoniouswhole which comports with its overall purpose. 53Tex.Jur.Zd 229-232, Statutes 9160. The primary subjectmatter and purpose of Section 11 of Article XI is the extension of the terms of office of municipal officersbeyond the two year limitation imposedby Section 30 of Article XVI. Viewing Section 11of Article XI as awhole, we are of the opinion that it relates to one class of city officers, i.e., thosewhose term of office has been extended beyond twoyears, and that theportion which relates to the automatic resignation of one who becomes a candidate for another office has no application to city officerswhose terms have not been extendedbeyond two years, The very language of theparagraph relating to automatic resignation lends itself Yogically to this applicationbecause it says "if any of such officers

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. shall a:--
...e their candidacy, or shall in factbecome a candidate , the term such officers referring to city office-?whcze terms of officehave been extendedbeyond two years. Although this conclusion treats city officialswith terms of longer than twoyears differently from those city officialswith 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 isnot without parallel.. See Hall v. Baum, Tex,Sup., opinion delivered-February16, 1970 holding that theprohibition of Section 18 of Article III'of the Constitutionof Texas prchibited one class of senators frombeing eligible to the **office** of **governor** but did not render ineligible the remainder of themembers of the senate or themembers of the house **of** representatives.

Accordingly, in answer toyour first question,you

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are advised that the candidacy of themayor **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 toyour **: ‘** **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 themayor of the City of Amarillo is affected by any other constitutionalprovision.

You have subsequently advisedus 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 connectedwith **such office.** 

Section 40 of Article XVI of the Constitution of Texas provides in **part** as follows:

"Noperson 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 6520per year plus nerassary expenses incurred in theperformance of official duties occupied a "lucrativeoffice under this State"within themeaning 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** emolumentwithin themeaningdf Section 40 **of** Article XVI. The term emolument as used in this provisionmeans apecuniary profit, gain or advantage; the compensation authorized tobe paid for the services of the officer. Irwinv. 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,** legislativeor judicial. State

165Tenn. 381, 54 S.W.2d 941 (1932). The office of the City of Amarillo fitsboth criteria.

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It must likewisebe concedrd that the office of county judge is a civil office of emo?*unent within themeaning **of** Section **40** of Article XVI. As a cc..sequence, one person may not at the same time hold the officts **of** mayor of theCity of Amarillo and county judge. In the event that the **mayor** of the City of Amarillo is succeesful inhi- candidacy for the **office** of county judgeof Randall County and accepts and qualifies for the latter office, such acceptan&? and qualification will constitute an automaticresignation oi the office ofmayor. 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 toyour third question, you are advised that although mere candidacyof themayor of the City of Amarillo for the office of county judgedoes not affecthis tenure as mayor, because **of** theprohibition against dual office holding contained in Section 40 of Article XVI **of** theConstitution of Texas, **if** themayor is elected and qualifies for the office of county judgehewill automatically resign asmayor of the City of Amarillo.

No answeris requiredfor your fourthquestion.

Section 11 ofArticleXI of the Conetitr;i.on of Texas requiring the resignation of elective or appointive city officersupon their candidacy for any other office of profit or trust under this State or the United States applies only to those 'cityofficerswhose termsof office exceed two years. Since **the** term **of** office of **the** mayor of the City **of** Amarillohas not been extended beyond twoyears thisprovisionof the Constitution does not effectuate an automatic resignation as mayor uponhis candidacy for.county judge of Randall County.
The **office** of mayor of the City of &narillo and the office of countyjudge ue civil offices of emolumentwithin themeaningof Section 40 of Article XVI **of** the Conutitutionof Taxae. Since

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this provision prohibita one person fromholding more than one civil office of em lument, if the mayor of the City of Amarillo ia elected and qualifies as county judge of RandallCounty, the qualification fot the latteroffice ahall ipso facto **comtitute a**  resignation of the of**fice** 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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