5 DAN MORALES

.ATT,>RSEY GLSLH.,, 

# Office of tfp IZIttornep %tate of PCexas February 7,1996 

# &mral

The HonorableRobert Newsom Hopkins County Attorney 110Main Street Sulphur Springs,Texas 75482 OpinionNo. DM-377
Re: Whether a county court at lawjudge, with an unexpired term greater than one year, who declared at a county commissioners court meeting that he was a candidate for the district judgeship has announcedhis candidacy or “‘ in faa become a candidate” for purposes of article XVI, section 65 of the Texas Constitution and related questions (RQ-820)
Dear Mr. Newsom:
You indicate that, at the March 27, 1995, meeting of the Hopkins County CommissionersCourt, the county court at lawjudge (the “ judge”) stated he was “at that moment” a candidate for the judgeship of the Eighth Judicial District Court. You have includedwith your letter a copy of a newspaperarticle that provides the followingaccount of the judge’ s remarks at the March 27, 1995. meeting of the Hopkins County Commissioners

Court: It is my pledge to you gent[le]men, as well as the people of Delta, Hopkins,Franklinand Rainscounties,that upon taking office I will do whatever is necessary to promptly and efficiently conduct their legal business.

. . It’ s certainly something I’ ve thought about for some time, but it was so far away, it seemed ridiculously premature.

. [After the present district judge amtounced that he did not intend to seek re-election], it became clear the only reasonable course of business was to announce for the Eighth bench.

. . I’ ve worked hard to makethe CountyCourt-At-Law a pop&r court.

. . I believe it will be possible to do the same to the district
COW-t. Bruce Alsobrook, Cable SeekingEighth DistrictJudge Position,THENEWS-TELEGFMM, (Sulphur Springs),Mar. 27, 1995,at 1, 10.The HonorableRobert Newsom - Page 2 @M-377)

You also state that, at the time of the commissioners court meeting, the unexpired term of thejudge’ s current offtce exceeded one year. With this situation in mind, you ask several questions about article XVI, sections 17 and 65 of the Texas Constitution.
You first ask whether the judge’ s declarations at the county commissionerscourt meeting constitute an announcementfor purposes of article XVI. section 65. The final paragraph of article XVI, section 65 provides as follows:

[I]f any of the officersnamed herein [includinga county court at law judge] shall announce their candidacy, or shall in fact become a candidate,in any General, Specialor 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 officethen 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 law in the same matureras other vacanciesfor such office are filled. To %nnounce” is “‘ todeliver news; to make public or oflicial intimation of to proclaim

. . .* 1 THE OXFORD ENGLISH DICTIONARY

485 (2d ed. 1989). On the assumption that the county judge made the statements reported in the newspaper, we conclude. as a matter of law, that the county judge has announcedhis candidacy or has ‘in fact become a candidate”for purposes of article XVI, section 65. Consequently,pursuant to article XVI, section 65, the county judge has automatically resigned his office. See Attorney General OpinionsIM-395 (1985) at 4, WW-1253(1962) at 3.
Your second question concernsthe interrelationship of atticle XVI, section 65 and article XVI, section 17 of the Texas Constitution,whichprovidesthat “[a]li officerswithin this State shallcontinue to perform the duties of their officesuntil their successors shallbe duly qualified.” The purpose of this provision is to prevent vacancies in office and the consequent cessation of the finctions of government. Pluins CommonConsol. Sch. Dist. No. I v. Hayhrrrst,122 S.W.Zd322 (Tex. Civ. App.-Amarillo 1938, no writ). You ask whether an officer who, with more than one year remaining in his term of office, amtounces his candidacy for another of& and who therefore automatically resigns the current office pursuant to article XVI, section 65 remains in office pursuant to article XVI, section 17 until a successoris duly qualified. Attorney General Opinion WW-1253 (1962) addressed this question and concluded that the officer held over under article XVI, section 17. This conclusion was followed in Attorney General Opinions C-43 (1963) and H-161 (1973). However,

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because of the time that has passed since this office consideredthe interaction of sections 17 and 65 of article XVI, we will addressyour question.
The “resign to run” paragraph was added to section 65 in November 1958. HI. Res. No. 31,55th Leg., R.S., 1957Tex. Gen.Laws 1641;Amendments to Constitution of Texas, 1959 Tex. Gen. Laws I[XXV, XXXVIII. Article XVI, section 65 had been adopted in 1954 to extend the terms of certain county officers from two to four years, TEXAS LEGISLATIVE

COUNCIL,

INFORMATION

CONCERNING

CONSTITUTIONAL

,~~~ENDMENTS

TO BECONSIDEREDNOVEMBER 4, Amena?nenr

No. 4 - HJ.R. No. 31 1 (1958); see S.J. Res. No. 4, 4 12. 53d Leg., R.S., 1953 Tex. Gen. Laws 1164, 1166; Amendments to Constitution of Texas. 1955 Tex. Gm. Laws Xxxv, XLIV.The terms were staggered so that approximatelyone-halfof the ofiices are regularly filledby election every two years. TEXAS LEGI~I,,~TWECOUNCIL, supru, at 1. The increase in term length made it possible for county officersto devote almost their entire terms to the duties of office, in contrast to the old system of having to run for re-election one year out of every two. Id. at 2 (arguments for amendment). However, the staggered four-year terms of office made it possible for an officerto run for a differentoffice at the general election in the middle of his temt, thus defeatingthe purpose of the 1954 amendment-to pemtit an officialto give his undivided attention to his office for at least three years. Id. at 1. The legislature proposed the “resign to run” provision to correct this result of the 1954 amendment. Id.; see uh Attorney GeneralOpinionWW-788(1960) at 3 (citing press reports).*
We do not know of anyjudicial decisionthat addresses the interaction of sections 17 and 65 of article XVI. but we are aware of numerous judicial decisions and Attorney General Opinions concluding that article XVI, section 17 does not apply in when an officervacates the officepursuant to other constitutionalprovisions. The Texas Supreme Court determined, in Pruittv. Glen Rose IndependentSchool DistrictNo. 1, 84 S.W.Zd 1004, 1007 (Tex. 1935).that article XVI. section 17 did not apply to an officer who has

“stepped down” from officeby operation of article XVI, section 40, whichprohibits, with certain specifiedexceptions, any person from simultaneously holding “more than one civil office of emolument.” See also Stateex rel. Peden v. Valentine. 198 S.W. 1006, 1007 (Tex. Civ. App.--Fort Worth 1917, writ refd) (upon acceptance of second, incompatible office,first office is ipso facto vacated). In L-owe v. Sfufe,201 S.W. 986 (I’ ex. Grim. App. 1918), the Texas Court of CriminalAppeals determinedthat article XVI, section 17 does not apply to an officer who is ineligible under article XVI, section 12 of the Texas Constitution to hold or exercise an office of profit or trust under this state because he or she holds or exercises an office of profit or trust under the United States. Id. at 986; see

‘Attorney

Genera1Opinion

WW-788 stated

that another

pnpc of the 1958 amendmentto mticle XVI. section 65 oftheconstitution was IO reduce lbeduration

ofsppointotents.

Atmmey General Opinion Ww-788 (1960) at 3.

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Attorney General Opinion DM-49 (1991); see also Attorney General Opinions TM-1 161 (1990) (article XVI, section 17 is inapplicable when senate has refused to approve governor’ s appointmentto ofice), lM-423 (1986) (same), O-3343 (1941) (same), M-151 (1967) at 4 (judge who reaches pageof 75, whose “office

. . shall become vacant” pursuant to article V, section l-a of Texas Constitution does not hold over under article XVI, section 17). Although the cases and prior opinions of this office suggest that article XVI. section 17 generally does not apply to vacancies created by operation of the constitution, we believe that article XVI, section 65 may be distinguishedfrom the authorities cited. Attorney General OpinionWW-1253,in reaching its conclusionthat article XVI, section 17. applied to officers who automatically resigned, stated that “an officer whose resignation has been effected but whose successor has not been appointed retains the position as a ‘dejure’ officer.” Attorney General OpinionWW-1253 (1962) at 3. This conclusionwas based on the followingauthorities: Jones v. Cig ofJe#erson, 1 S.W. 903 (Tcx. 1886), Plains Common ConsolidatedSchool District No. I v. Hayhurst, 122 S.W.Zd322 (Tex. Civ. App:-Amarillo 1938,no writ), Keen v. Featherston, 69 S.W. 983 ( ‘kx. Civ. App. 1902, writ refd), and Attorney General Opiions V-760, O-855 (1939) and O-761 (1939). Except for Attorney General Opinion V-766, which recites the purposes of article XVI, section 17, these authorities state that an officer whose resignationhas been tendered to the proper authority and accepted continuesin officeuntil his successor is appointed and qualifies. See Jones v. CityofJefferson, 1 S.W. at 905; Plai,rc Common Consol. Sch. Dist. No. 1 v. Hayhurst, 122 S.W.2d at 326. Anomey General Opinion H-161, addressing the automatic resignation of a justice of the peace under article XVI, section 65, states as followsin regard to article XVI, section 17:

The recognized purpose of this provision is to insure against vacancies in office and a consequent cessation of the functions of government. Section 17 provides for o!Scers to hold over in the perfortnance of the duties of office, even after resignation until a successor has been elected or appointed and has qualified. The officer who has resigned retains his position, in spite of his resignation, as a dejure officer.
Attorney General OpinionH-I 6I (I 973) at 2,
Article XVI, section 65, pertains to the “automatic resignation” of officers, and Attorney General OpinionsWW-1253and H-161 construe this provision consistentlywith the well-established rule about resignations: that an officer holds over until his replacementis appointed and qualifies,even atIer his resignationis tendered and accepted. We believe the prior opinions of our office correctly relied on the express language of article XVI, section 65, and correctly concludedthat persons who automaticallyresign an office pursuant to that provision still hold over in office until a successor is appointed and qualifies.

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Other constitutionalprovisionscreatingvacanciesuse different,and often stronger, language than section 65. Article XVI, section 40, does not refer to a resignation, but states that “[n]o person shall hold or exercise at the same time, more than one civil office of emolument,” Article XVI, section 12, states that persons holding or exercisingcertain federal offices shall not “be eligible”for offices of profit or tNSt under this state. Article XVI, section 14 states that offtcers who do not reside with the appropriatejurisdiction

“shallvacate the office so held.” ArticleV, section l-a provides that when ajudge reaches the age of 75, his “office

. . shall become vacant.” None of these constitutional provision incorporate the concept ofresignationor the body of law related to that term. As commentatorshave noted, the policy served by the “resignto run” provision, to limitthe time duringwhich a county officermay campaignfor other office, does not apply to all officeholdersin the state. “If it is thought generallythat officeholdersshould forfeit their positions when they amtounce for other officers, the provision should apply to members of the legislature and statewide elected officials as well as those named in this section.” GEORGED. BRADEN, THE CONSTITUTION OF TIE STATE OF TEXAS: AN ANNOTATED AND COMPARATIVE hWLYSIs 813 (1977); ,see genera& elements v. Fashing, 457.U.S. 957, 970 (1982). The limited applicationof the automatic resignation requirement suggests that it may be less weighty than other, more generally applicable, constitutional provisions. Moreover, the policy underlying section 65 will still be effectuated when the officer’ s replacement is appointed and qualities. Under the circumstances,we believe we should give great weight to the public policy encompassed in article XVI, section 17-the preservation of the orderly processes of government. See Ex parre Sanders, 215 S.W.Zd 325 (Tex. 1948). Accordingly, an officer who automaticallyresigns an office pursuant to article XVI, section 65 will hold over in office pursuant to article XVI, section 17 until a successor is appointed and qualifies. We aflirm the conclusions of Attorney General Opinions WW-1253, C-43, H-161, and opinions relying on them.
Your third question asks whether the commissionerscourt may appoint the judge who has resigned pursuant to article XVI, section 65 of the constitution to the now-vacant office of county court at lawjudge--the same post from which the judge has resigned. This office concluded in Attorney General Opinion WW-788 that an officer who automatically resigns his offtce pursuant to article XVI, section 65 of the Texas Constitution is ineligible

for appointmentto fill the vacancy created in his office. Attorney General Opinion WW-788 (1960) at 8 (summary); see ulso Attorney General Opinion WW-1253 (1962) at 3-4. We believethis conclusionis sound, and we a&n it here.
We need not answer your fourth and fifth questions, which assume that the officer does not hold over after his automatic resignation. See generuh) Attorney General OpinionH- 161. Your sixth and seventh questions focus on the procedure the county must use to fill the vacancy created by the judge’ s candidacy. Article XVI, section 65 of the Texas Constitution states, “[T]he vacancy. shall be filled pursuant to law in the same manner as other vacancies for such offtce are tilled.” Section 25.0009(a) of the

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GovernmentCode requires the county commissioners court to appoint an individualto fill a vacancy in the offtce ofjudge of a statutory county court. “The appointee holds offtce until the next general election and until the successor is elected and has qualified.” Gov’ t Code 0 25.0009(b). Nothing in section 25.0009, nor in any other statute of which we are aware, specifies a particular time period within which the commissionerscourt must appoint a new judge. Moreover, we are unaware of any statute specifically prescribingprocedures a wmmissioners court must use to appoint an individual to the office of county wurt at law judge. Under the Gpen Meetings Act, Gov’ t Code ch. 55 1, the commissionerscourt may deliberatethe appointmentin a closed meeting, although the commissionersmust vote on the appointmentin a meetingopen to the public. See Gov’ t Code 55 551.074(a)(l), .102.
SUMMARY
Under the facts presented, the county court at law judge of Hopkins County has announcedhis candidacyor has “in fact become a candidate” as a matter of law for purposes of article XVI, section 65 of the Texas Constitution. Thus, pursuant to article XVI, section 65, the countyjudge has automaticallyresignedhis office. However, he continues to hold over in his office under XVI, section 17 of the Texas Constitution,until his successor is appointed and qualifiesfor office. Attorney General OpinionsWW-1253 (1962), C-43 (1963), and H-I 61 ( 1973)are affirmedon this issue. Attorney General Opinion WW-788 (1960). which concluded that an officer who automaticallyresignshis officepursuant to article XVI, section 65 of the Texas Constitution is ineligible for appointmentto till the vacancy created in his office,is affirmed. Sectjon 25.0009(a) of the GovernmentCode rquires the county commissionerswmt to appoint an individualto fill a vacancy in the offtce of judge of a statutory county wurt. Nothing in section 25.0009, nor in any other statute of which we are aware, specifies a particular time period within which the wmmissioners court must appoint a newjudge; nor does any statute specificallyprescribe the procedure a commissionerscourt must use to appoint an individual

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to the office of county court at lawjudge. The commissionerscourt must, of course, comply with the Open Meetings Act, Gov’ t Code ch. 55 1, in appointingthe new county court at law judge.

DAN MORALES Attorney Generalof Texas
JORGEVEGA First AssistantAttorney General
SARAHJ. SHIRLEY Chair, OpinionCommittee Prepared by SusanL. Garrison Assistant Attorney General

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