## w39
TEEATTORNEY GENERAL

OFTEXAS.

WILLWIJBON nnoanrWG-~ February 2, 

### 1962

Honorable F. T. Graham CriminalDistrict Attorney Cameron County Brownsville, Texas Opinion No. WW-1253

Re: Whether under the alleged facts a

Dear Mr. Graham:

In your officeyou allege follows: Justice of the Peace for Cameron County "announcedhis candidacy" within the meaning of Section 

### 65 of Article XVI of the Texas Constitution and related questions.
letter requestingan opinion from this certain factswhich we summarize as

Mr. D. J. Lermawas elected Justice of the Peace : on July 

### 26, 1958,for a four year term,beginning January 1, 1959, and expiringDecember 

### 31, 1962. On'December 11, 

### 1961,he issued a press release,pertaining to his political aspirations, to the BrownsvilleHerald. Pursuant to this press release, Mr. Iermawas quoted In the Brownsville Herald on December 11, 

### 1961,as follows:

"It is my desire--and I have been urged by my friends--to seek the elective post of County Court At Law Judge,' said~ Lerma. 'Withthe election set for May 5, only four months away, I find it necessary to announce at this time that I will be a candidate for the position of County Court at Law Judge." [Emphasisadded)

*Mr. Bill Rudd, Managing Editor of the Brownsville Herald, states that Mr. Lerma was accurately quoted In that the statementswere taken directly from the written "release"Mr. Lerma submitted to the Herald's news office. Subsequentlyon January 25, 

### 1962,Mr. Lerma filed his applicationwith the Chairman of the County Democratic ExecutiveCommittee for the office of Judge of the County Courtat Law.

With regard to the foregoing circumstances,you I ask three questionswhich are substantiallyas follows:.

Honorable F. T. Graham,page 2 (W1253)

1. Whether 14r.

Lerma "announcedhis candidacy" within the meaning of Section 

### 65 of Article XVI of the Texas Constitutionby causing a "pressrelease" to be printed in the BrownsvilleHerald on December 11, 

### 1961, and thereby automaticallyconstitutinga resignation from his office of Justice of the Peace.

2. If such action constitutedan automatic resignationand a vacancy exists, does Mr. Lerma continue to hold office until a successorhas been appointed and qualified?



### 3. Assuming the answer to the first question is in the affirmativeand a vacancy presently exists in the office of Justice of the Peace,would the Commissioners Court be authorized to appoint P-z. Lerma to fill such vacancy?
The answer to the first question is resolvep by an amendment to Section 

### 65 of Article XVI of the Texas Constitutionwhich was proposed by the Legislature in 1957, and adopted in 1958. This amendment, forbids certain named officials includingJustices of the Peace from announcing
or becoming a candidate in General, Special or Primary elections for any office of profit or trust at any time when the unexpired term exceeds one year. Such announcement or candidacy constitutes an automatic resignationof the office then held. That portion of Section 

### 65 most pertinent to our discussion reads as follows:

"Provided,however if any of the officers named herein shall announce their candidacy, or shall in fact become a candidate, in any General, Special or PrimaryElection, 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 thenheld shall exceed one (1)year, such announcement or such candidacy shall constitutean automatic resignationof the office then held, and the vacancy thereby created shallbe filled pursuant to iaw in the same manner as other vacancies for such office are filled." (Emphasisadded)
After applying the alleged facts in this dase to the plain and unambiguouswording of the provision quotedabove, it is'our opinion that Mr. Lerma "announced

## 5490

Honorable F. T. Graham,~ page 3 (~~~-1253)

his candidacy"within the meaning.of the constitutional provision on December 11, 196l+the date the n,ewspap~er article in ques.tion appeared in.the Brownsville Herald. of the operation of the provis?.on, such announcement. constitutedan automatic resignation of the office of Justiceof the Peace.

The answer to yo&second question isresolved by.Section 17 of Article XVI of the Texas~ Constitution. mis provision reads,as,follows:

"All officerswithin th?.s' State shall continue to perform the duties of their offices untiltheir successors shallbe duly qualified.!
"Thisprovision,~thatofficers shall hold overafter the expiration of their terms. until their successorsare elected or appointed and have qualifiedwas placed in the Constitution to prevent public convenience from suffering because of a vacancy in office,~ and to insure against vacancies in~officeexcept in classes of cases or for causes provided for in other sectionsof the Constitution." "Interpretive Commentary, Section 17, Article XVI, Vernon's Annotated Texas Constitution).

It is now an accepted proposition'of law that this section is mandatory;and'an officervJhOSe resignation hasbeen effected but whose successor has not been appointed retains the nosition as a "de jure" officer, Featherstom,- S.W. 983 (Civ.-App. 1902); Pla!~~&mon

-761 (1939);Attorney General'sX)pinlonO-855 ( AttorneyGeneral's Opinionv-760 (,19&g)<

On the. basis of these authorities, it is our opinionthat Kr. Lerma has servedas a de jure Justice.of the Peace since December 11, 1961, and continues to serve as a de jure Justice of the 'Peaceuntil the County Commissioners Court,by t'?e

authority of Section 

### 28 of ArticleV of the TexasConstitution,apnoints someone to fill t'ne vacancy and thatperson has been duly qualified.

negative.The third questionmust be answered in toe

Attorney General's Opinion No. 

### w-788 (1960) held that an officer listed in Section 65 of Article XVIHonorable F. T. Grahamj'page 4 (WW-1253)

of the Texas Constitution,who voluntarilyresignshis office to become a candidate 'foranother office or who automaticallyresigns his office by becoming a candidate for another office as provided in Section 

### 65 of Article XVI, Is not eligible during such candidacy, for appointment to fill the vac*.ncy createdby his resignationwhere there is more than one year remaining In the unexpired term of the office from which he resigns. This opinion reasoned that, if an officerwho is running for another office In the middle of his term Was permitted to be reinstated In the. offitie by appointment after his resignation,it would defeat the primary purpose of the amendment, the purposebeing to discourage office seekinguntil the unexpired term of the office holder did not exceed one year. -

However, this opinion was limited to eligibility for appointment.wherethere is more than one year remaining in the unexpired term of the resigning officer. It did not rule on whether an officer would be eligible 'fork.I appointment If the unexplred,termwas less than one.year when the appointmentwas made.

Mr. Lermals appointment, under the‘factshere submittedwould-in effectpermit the very thing the-1958 amendmentwas intended to prevent. We are of the opinion that the resigning officer may not be appointed to succeed himselfwhile he is a candidate for the other office.

SUMMARY
Under the facts submitted, Mr. D. J. Lerma, Justice of the Peace forcameron County, auto-. matically resigned his office on December 11,~ 

### 1961,by the operation of Section 

### 65 of Article XVI of the Texas Constitution. Mr. Lerma continues to serve as the de jure.Justice of the Peace for his precinct until the Commissioners Court has appointedhis successor and that appointeehas been duly qualified. Mr. Lermafs appointment,~. under the facts here submittedwould in effect perm"t the very thing the 

### 1958amendmentwas intended to,prevent. We are of the opinion that the resigning~ officer may not be appointed to succeedhimself while he is a candidate.for the other office.

_. :

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Honorable F. T. Graham, page 

### 5 (WW-1253)

Yours very truly,

1RW:lh:mkh WILL WILSON

APPROVED:

OPINION COMMITTEE W. V. Geppert,Chairman
Bob~Shanndn Mary Kate Wall Leon Pesek Jack Price
~3EVIEWEDFORTHEATTORNEYGENERAL BY: Houghton Brownlee, Jr.