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### r HonorablePabloAvila ZavalaCountyAttorney ZavalaCounty Courthouse CrystalCity, Texas 78839 OpinionNo. JM-553

Re: Whether a mayor automatically resignshis positionupon announcing his candidacy for the position of county judge

Dear Mr. Avila:

You ask whether themayor of Crystal Citymay continue to occupy his office as mayor while he holds another office or is a candidate for another office. He :Lnitiallyserved Crystal City as a city council member and was ap:?ointedto the position of mayor, a nonpaying position. He had a,little over a year left on his term as mayor when he filed for thf:office of county judge for Zavala County. Based on these facts,you first ask whether themayor of Crystal City may continue to hold that office after becoming a candidate for the office of county judge. You also ask whether there is a conflict of interest in the interimbefore the election.

The mayor is also a justice of the peace in Zavala County. You state that he had over one:year left on his term as justice of the peacewhen he filed for reelactionto the city council of Crystal City in March of 1985. You ar;kwhether the mayor automatically relinquishedhis positionas just:lce of thepeace,pursuant to articleXVI, section 65, of the Texas Constitution,by becoming a candidate for city councilwhen more than a year remained on his unexpired term as justice of thepeace.

We will answeryour secondquestion first.The personyou inquire about was serving as city :ouncilmanand justice of the peace at the time he filed for reelectian to the city council. You do not ask and
we do not decidewhether thisdual servicewas permissible.See Turner V. Trinity IndependentSchoo,l DistrictBoard of Trustees, 70m.W.Zd 1 (Tex. App. - Houston [14tl;Dist.] 1983, no writ); Attorney General opinion JM-395 (1985). Pou ask simply whether this individual automatically resigned his position as justice of the peace when he announcedhis candidacy for #city councilmember.
Attorney General 0pin:LonJM-395 (1985) considered whether a justice of the peace automatically resigned his office pursuant to article XVI, section 65, **oE** the Texas Constitutionwhen he announced his candidacy for city councilmember of a general law city at a time when he had more than one year remaining on his unexpired term as

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justice. Article XVI, sect:lon 65, of the Texas Constitutionprovides
as follows:

Sec. 65. St,%ggeringTerms of Office -- The

followingofficerselectedat the GeneralElection inNovember, 195i1, and thereafter,shall serve for the full termsprovided in thisConstitution:
(a) District Clerks; (b) County Clerks; (c) CountyJudges; ((1) Judges of County Courts at Law, County Criminal Courts, County Probate Courts and County Domestic Relations Courts; (e) County Treasurers; (f) C:riminalDistrict Attorneys; (g) County Surveyors;; (h) Inspectors of Hides and Animals; (I) Comty Commissioners for Precincts Two and Four; (j:~ Justices of the Peace.

. . . . Provided,howlrver,if any of the officersnamed Provided,howlrver, officers herein shall an&&e their candidacy,or shall in candidacy, fact become a c&didate, in any General, Special

c&didate, General, Special
or Primary Election, for any office of profit or Primary Election, trust under the laws of this State or the United States other th& the office then held, at any

u&pired time when the u&pired term of the office then held shall exceed one (1)year, such announcement or such candida:)rshall constitute an automatic resignation of 1:heoffice then held, and the vacancy thereby created shall be filled pursuant to law in the satne manner as other vacancies for such office are E:illed. (Emphasisadded). held shall exceed one (1)year, such announcement or such candida:)rshall constitute an automatic resignation of 1:heoffice then held, and the vacancy thereby created shall be filled pursuant to law in the satne manner as other vacancies for such office are E:illed. (Emphasisadded).
This provision applj.esto a justice of the peace. Attorney General Opinion JM-395 c~lcluded that a councilman of a general law city occupied an office of trust within article XVI, section 65, of the Texas Constitution. This conclusion also applies to a city councilmanof a home rule city. He engages in governmentalactivities and exercisesa portion of the sovereignpowers of the state and thus also occupiesan office of trustwithin articleXVI, section 65. Tex. Const. art. XI, 95;Willis v. Potts, -- 377 S.W.2d 622 (Tex. 1964). The person in questionhad OVI:I' one year remaining onhis term as justice of the peace when he fi:.edfor reelection to the city council of Crystal City in March of 1.985.He therefore resigned his office as justice of the peace at **t,hat** time, pursuant to article XVI, section 65, of **the** Texas Constitution.

We turn to your firirtquestion: whether **the** mayor of Crystal City may continue to hold that office after becoming a candidate for county judge at a time wh:n he had more than a year remaining of his term as mayor. Article XI, section 11, of the Texas Constitution pertains to the term of ofEice of city officers. It also includes a

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provision for automatic m~signation of city officers who become candidates for another of:iiceunder certain circumstances. Article XI. section 11. of the constitutionprovides inpart:

Sec. 11. A g,me Rule City may provide by charter or chartfir amendment,and a city, town or village 0peratir.gunder the general laws may provide by majority vote of the qualified voters voting at an electioncalled for thatpurpose, for
a longer term of office than two (2)years for its officers, either elective or appointive,or both, but not to exceed four (4) years; provided, however, that terureunder Civil Service shall not be affectedhereby.
Provided, however, if any of such officers, elective or ap:?ointive, shall announce their candidacy,or shz.11 in factbecome a candidate, in any general, spectal 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 a?7 time when the unexpired term of the office then held shall exceed one (1) year, such announcemen,: or such candidacy shall constitute an automatic resignation of the office then held, and the vacancy thereby created shall be filledpursuant l:cs law in the samemanner as other vacancies for such. office are filled.

The constitutionalprovision was construed by Attorney General Opinion M-586 (1970).which consideredwhether the mayor of Amarillo resigned his office upon hecoming a candidate for county judge at a time when the unexpired te'm of his office exceeded one year. The opinion determined that the provision for automatic resignation applied only to city officerswhose term of officewas longer than two years, having been extend<:d beyond two years under the authority of paragraph one of article XI, section 11. Attorney General Opinion M-586, at 3-4. The mayor of Amarillo served only a two year term, accordingly, he was not subject to the provision for automatic resignation in articleXI, section 11.

The answer to your question depends upon whether the mayor of CrystalCity serves a twoyear term, or whether his term of officehas been lengthenedbeyond two :years. If he serves only a twoyear term, he is not subject to the provision in article XI, section 11 for automaticresignation. If his term asmayor is longer than twoyears, thenhe will automatically resign that office by becoming a candidate for any other "office of profit or trust" at any time when his unexpired term as mayor exceeds one year. A county judge occupies an office of profit. See Tex. Const. art. V. 515. Thus, if themayor's term of office exceeds two years, his becoming a candidate for the office of county judge at a time when he had more than one year left

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to serve as mayor would constitutehis automatic resignation from his office asmayor.

In the event that themayor of Crystal Citymay continue to hold his office while running fcr the office of county judge, you wish to know whether he would be jmvolved in a conflict of interest in the interim before the election.. The mere fact that this individual is serving as a mayor while nmning for the office of county judge does not involvehim in a conflict of interest. Whether he has engaged in conduct that would violate 'anylaw depends upon all the surrounding facts and circumstancesand isbeyond the scope of this opinion. See - Penal Code art. 39.01.

SUMMARY

Under article XVI, section 65, of the Texas Constitution a justice of the peace who announces his candidacy for city councilman of a home rule city at a timewhmzn more than one year remained on his unexpired tern of office as justice thereby automaticallyresigned that office.

Under article XI. section 11, of the Texas Constitution the mayor of a city whose term of office is two yems does not automaticallyresign that office by becoming a candidate for county judge at a time ohen his unexpired term of office
asmayor exceeds 'meyear. If themayor's term of office exceeds two years, then his announcinghis candidacy for comty judge at a time when more than oneyear resmlns on his term asmayor constitutes an automatic resignation of the office of mayor.

AttorneyGeneral of Texas

JACKHIGHTOWER First AssistantAttorney General

MARY KELLER ExecutiveAssistantAttorney General

RICK GILPIN Chairman,Opinion Comittee
Preparedby SusanL. Garrison AssistantAttorney General

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