w39 

TEEATTORNEY GENERAL 

OFTEXAS. 

WILLWIJBON 

nnoanrWG-~ 

February 2, 1962 

Honorable F. T. Graham 

Criminal District Attorney 

Cameron County 

Brownsville, Texas 

Opinion No. WW-1253 

Re: Whether under the 

alleged facts a 

Dear Mr. Graham: 

In your 

office you allege 

follows: 

Justice of the Peace 

for Cameron County 

"announced his candidacy" within the 

meaning of Section 

65 of Article XVI of 

the Texas Constitution 

and related questions. 

letter requesting an opinion from this 

certain facts which we summarize as 

Mr. D. J. Lerma was elected Justice of the Peace 

: on July 26, 1958, for a four year term,beginning January 

1, 1959, and expiring December 31, 1962. On'December 11, 

1961, he issued a press release, pertaining to his political 

aspirations, to the Brownsville Herald. Pursuant to this 

press release, Mr. Ierma was 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. 'With the 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." [Emphasis added) 

* Mr. Bill Rudd, Managing Editor of the Brownsville 

Herald, states that Mr. Lerma was accurately quoted In 

that the statements were taken directly from the written 

"release" Mr. Lerma submitted to the Herald's news office. 

Subsequently on January 25, 1962, Mr. Lerma filed his 

application with the Chairman of the County Democratic 

Executive Committee for the office of Judge of the County 

Court at Law. 

With regard to the foregoing circumstances, you 

I ask three questions which are substantially as follows: 
. 

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

1. Whether 14r. Lerma "announced his candidacy" 

within the meaning of Section 65 of Article XVI of the 

Texas Constitution by causing a "press release" to be 

printed in the Brownsville Herald on December 11, 1961, 

and thereby automatically constituting a resignation from 

his office of Justice of the Peace. 

2. If such action constituted an automatic 

resignation and a vacancy exists, does Mr. Lerma continue 

to hold office until a successor has been appointed and 

qualified? 

3. Assuming the answer to the first question 

is in the affirmative and 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 Constitution which was proposed by the Legislature in 1957, and 

adopted in 1958. This amendment, forbids certain named 

officials including Justices 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 resignation of 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 Primary Election, 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 then held shall exceed one (1) year, 

such announcement or such candidacy shall 

constitute an automatic resignation of the 

office then held, and the vacancy thereby 

created shall be filled pursuant to iaw in 

the same manner as other vacancies for such 

office are filled." (Emphasis added) 

After applying the alleged facts in this dase 

to the plain and unambiguous wording of the provision 

quoted above, 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. 

constituted an automatic resignation of the office of 

Justice of 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 officers within th?.s' State shall continue 

to perform the duties of their offices untiltheir successors shall be duly qualified.! 

"This provision, ~that officers shall hold 

overafter the expiration of their terms. until 

their successors are elected or appointed and 

have qualified was placed in the Constitution 

to prevent public convenience from suffering 

because of a vacancy in office,~ and to insure 

against vacancies in ~office except in classes 

of cases or for causes provided for in other 

sections of 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 officer vJhOSe resignation 

has been 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)pinlon O-855 ( 

Attorney General's Opinion v-760 (,19&g)< 

On the. basis of these authorities, it is our 

opinion that Kr. Lerma has served as a de jure Justice.of 

the Peace since December 11, 1961, and continues to serve 

as a de jure Justice of the 'Peace until the County Commissioners 

Court, by t'?e authority of Section 28 of Article V of the 

Texas Constitution, apnoints someone to fill t'ne vacancy 

and that person has been duly qualified. 

negative. 

The third question must be answered in toe 

Attorney General's Opinion No. w-788 (1960) 

held that an officer listed in Section 65 of Article XVI 
Honorable F. T. Grahamj'page 4 (WW-1253) 

of the Texas Constitution, who voluntarily resigns his 

office to become a candidate 'for another office or who 

automatically resigns 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 created by his resignation where there 

is more than one year remaining In the unexpired term 

of the office from which he resigns. This opinion reasoned 

that, if an officer who 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 

purpose being to discourage office seeking until the 

unexpired term of the office holder did not exceed one 

year. - 

However, this opinion was limited to eligibility 

for appointment.where there 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,term was less than one.year 

when the appointment was made. 

Mr. Lermals appointment, under the‘facts here 

submitted would-in effect permit the very thing the-1958 

amendment was intended to prevent. We are of the opinion 

that the resigning officer may not be appointed to succeed 

himself while 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 

appointed his successor and that appointee has 

been duly qualified. Mr. Lermafs appointment, ~. 

under the facts here submitted would in effect 

perm"t the very thing the 1958 amendment was 

intended to,prevent. We are of the opinion 

that the resigning~ officer may not be appointed 

to succeed himself while he is a candidate.for the 

other office. 

_. : 
5491 

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.