5 DAN MORALES 

.ATT,>RSEY GLSLH.,, 

Office of tfp IZIttornep 

%tate of PCexas 

February 7,1996 

&mral 

The Honorable Robert Newsom 

Hopkins County Attorney 

110 Main Street 

Sulphur Springs, Texas 75482 

Opinion No. DM-377 

Re: Whether a county court at law judge, 

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 

announced his 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 

Commissioners Court, the county court at law judge (the “judge”) stated he was “at that 

moment” a candidate for the judgeship of the Eighth Judicial District Court. You have 

included with your letter a copy of a newspaper article that provides the following account 

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, Franklin and Rains counties, 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 make the County Court-At-Law a pop&r 

court. . . I believe it will be possible to do the same to the district 

COW-t. 

Bruce Alsobrook, Cable Seeking Eighth District Judge Position, THE NEWS-TELEGFMM, 

(Sulphur Springs), Mar. 27, 1995, at 1, 10. 
The Honorable Robert Newsom - Page 2 @M-377) 

You also state that, at the time of the commissioners court meeting, the unexpired 

term of the judge’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 commissioners court 

meeting constitute an announcement for purposes of article XVI. section 65. The final 

paragraph of article XVI, section 65 provides as follows: 

[I]f any of the officers named herein [including a county court at law 

judge] 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 law in the same maturer as other vacancies for such office 

are filled. 

To %nnounce” is “‘to deliver 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 announced his 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 Opinions IM-395 (1985) at 4, WW-1253 (1962) at 3. 

Your second question concerns the interrelationship of atticle XVI, section 65 and 

article XVI, section 17 of the Texas Constitution, which provides that “[a]li officers within 

this State shall continue to perform the duties of their offices until their successors shall be 

duly qualified.” The purpose of this provision is to prevent vacancies in office and the 

consequent cessation of the finctions of government. Pluins Common Consol. Sch. Dist. 

No. I v. Hayhrrrst, 122 S.W.Zd 322 (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 successor is 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, 

p. 2049 
The Honorable Robert Newsom - Page 3 @M-377) 

because of the time that has passed since this office considered the interaction of sections 

17 and 65 of article XVI, we will address your question. 

The “resign to run” paragraph was added to section 65 in November 1958. HI. 

Res. No. 31,55th Leg., R.S., 1957 Tex. 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 

BE CONSIDEREDNOVEMBER 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 approximately one-half of the ofiices are regularly filled by election every two years. 

TEXAS LEGI~I,,~TWE COUNCIL, supru, at 1. The increase in term length made it possible 

for county officers to 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 officer to run for a different office at the general election in the middle of 

his temt, thus defeating the purpose of the 1954 amendment-to pemtit an official to 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 General Opinion WW-788 (1960) at 3 (citing press reports). * 

We do not know of any judicial decision that 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 

officer vacates the office pursuant to other constitutional provisions. The Texas Supreme 

Court determined, in Pruitt v. Glen Rose Independent School District No. 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 office by operation of article XVI, section 40, which prohibits, with 

certain specified exceptions, any person from simultaneously holding “more than one civil 

office of emolument.” See also State ex 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 Criminal Appeals determined that 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 Genera1 Opinion WW-788 stated that another pnpc of the 1958 amendment to 

mticle XVI. section 65 of the constitution was IO reduce lbe duration ofsppointotents. Atmmey General 

Opinion Ww-788 (1960) at 3. 

p. 2050 
The Honorable Robert Newsom - Page 4 @M-377) 

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 appointment to ofice), lM-423 (1986) (same), O-3343 (1941) (same), M-151 

(1967) at 4 (judge who reaches page of 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 distinguished from the authorities cited. 

Attorney General Opinion WW-1253, in reaching its conclusion that 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 ‘de jure’ officer.” Attorney General Opinion WW-1253 (1962) at 3. This 

conclusion was based on the following authorities: Jones v. Cig ofJe#erson, 1 S.W. 903 

(Tcx. 1886), Plains Common Consolidated School District No. I v. Hayhurst, 122 

S.W.Zd 322 (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 

resignation has been tendered to the proper authority and accepted continues in office until 

his successor is appointed and qualifies. See Jones v. City ofJefferson, 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 follows in 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 de jure officer. 

Attorney General Opinion H-I 6 I (I 973) at 2, 

Article XVI, section 65, pertains to the “automatic resignation” of officers, and 

Attorney General Opinions WW-1253 and H-161 construe this provision consistently with 

the well-established rule about resignations: that an officer holds over until his 

replacement is appointed and qualifies, even atIer his resignation is tendered and accepted. 

We believe the prior opinions of our office correctly relied on the express language of 

article XVI, section 65, and correctly concluded that persons who automatically resign an 

office pursuant to that provision still hold over in office until a successor is appointed and 

qualifies. 

p. 2051 
The Honorable Robert Newsom - Page 5 @M-377) 

Other constitutional provisions creating vacancies use 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 exercising certain 

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 appropriate jurisdiction 

“shall vacate the office so held.” Article V, section l-a provides that when a judge reaches 

the age of 75, his “office . . shall become vacant.” None of these constitutional provision 

incorporate the concept of resignation or the body of law related to that term. 

As commentators have noted, the policy served by the “resign to run” provision, to 

limit the time during which a county officer may campaign for other office, does not apply 

to all officeholders in the state. “If it is thought generally that officeholders should 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.” GEORGE D. 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 application of 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 

automatically resigns 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 commissioners court 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 law judge--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 appointment to 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 believe this conclusion is 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 

Opinion H- 16 1. 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 

p. 2052 
The Honorable Robert Newsom - Page 6 @M-377) 

Government Code requires the county commissioners court to appoint an individual to fill 

a vacancy in the offtce of judge 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 commissioners court must appoint a 

new judge. Moreover, we are unaware of any statute specifically prescribing procedures 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 commissioners court may 

deliberate the appointment in a closed meeting, although the commissioners must vote on 

the appointment in a meeting open 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 announced his candidacy or 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 county judge has automatically resigned his office. However, 

he continues to hold over in his office under XVI, section 17 of the 

Texas Constitution, until his successor is appointed and qualifies for 

office. Attorney General Opinions WW-1253 (1962), C-43 (1963), 

and H-I 61 ( 1973) are affirmed on this issue. 

Attorney General Opinion WW-788 (1960). which concluded 

that an officer who automatically resigns his office pursuant to article 

XVI, section 65 of the Texas Constitution is ineligible for 

appointment to till the vacancy created in his office, is affirmed. 

Sectjon 25.0009(a) of the Government Code rquires the county 

commissioners wmt to appoint an individual to 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 new judge; nor does any statute specifically prescribe the 

procedure a commissioners court must use to appoint an individual 

p. 2053 
The Honorable Robert Newsom - Page 7 @M-377) 

to the office of county court at law judge. The commissioners court 

must, of course, comply with the Open Meetings Act, Gov’t Code 

ch. 55 1, in appointing the new county court at law judge. 

DAN MORALES 

Attorney General of Texas 

JORGE VEGA 

First Assistant Attorney General 

SARAH J. SHIRLEY 

Chair, Opinion Committee 

Prepared by Susan L. Garrison 

Assistant Attorney General 

p. 2054