‘ 

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Honorable Pablo Avila 

Zavala County Attorney 

Zavala County Courthouse 

Crystal City, Texas 78839 

Opinion No. JM-553 

Re: Whether a mayor automatically 

resigns his position upon announcing 

his candidacy for the position of 

county judge 

Dear Mr. Avila: 

You ask whether the mayor of Crystal City may continue to occupy 

his office as mayor while he holds another office or is a candidate 

for another office. He :Lnitially served Crystal City as a city 

council member and was ap:?ointed to 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 the mayor 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 interim before 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 

peace when he filed for reelaction to the city council of Crystal City 

in March of 1985. You ar;k whether the mayor automatically relinquished his position as just:lce of the peace, pursuant to article XVI, 

section 65, of the Texas Constitution, by becoming a candidate for 

city council when more than a year remained on his unexpired term as 

justice of the peace. 

We will answer your second question first. The person you inquire 

about was serving as city :ouncilman and justice of the peace at the 

time he filed for reelectian to the city council. You do not ask and 

we do not decide whether this dual service was permissible. See Turner 

V. Trinity Independent Schoo,l District Board 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 

announced his candidacy for #city council member. 

Attorney General 0pin:Lon JM-395 (1985) considered whether a 

justice of the peace automatically resigned his office pursuant to 

article XVI, section 65, oE the Texas Constitution when he announced 

his candidacy for city council member of a general law city at a time 

when he had more than one year remaining on his unexpired term as 

p. 2454 
Honorable Pablo Avila - Pa&e 2 (JM-553) , 

justice. Article XVI, sect:lon 65, of the Texas Constitution provides 

as follows: 

Sec. 65. St,%ggering Terms of Office -- The 

following officers elected at the General Election 

in November, 195i1, and thereafter, shall serve for 

the full terms provided in this Constitution: 

(a) District Clerks; (b) County Clerks; (c) 

County Judges; ((1) Judges of County Courts at Law, 

County Criminal Courts, County Probate Courts and 

County Domestic Relations Courts; (e) County 

Treasurers; (f) C:riminal District Attorneys; (g) 

County Surveyors;; (h) Inspectors of Hides and 

Animals; (I) Comty Commissioners for Precincts 

Two and Four; (j:~ Justices of the Peace. 

. . . . 

Provided, Provided, howlrver, howlrver, if any of the officers officers named 

herein shall an&&e their candidacy, candidacy, or shall in 

fact become a c&didate, c&didate, in any General, General, Special Special 

or Primary Primary Election, Election, for any office of profit or 

trust under the laws of this State or the United 

States other th& the office then held, at any 

time when the u&pired u&pired term of the office then 

held shall exceed one (1) year, such announcement 

or such candida:)r shall constitute an automatic 

resignation of 1:he office 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. (Emphasis added). 

held shall exceed one (1) year, such announcement 

or such candida:)r shall constitute an automatic 

resignation of 1:he office 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. (Emphasis added). 

This provision applj.es to 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 

councilman of a home rule city. He engages in governmental activities 

and exercises a portion of the sovereign powers of the state and thus 

also occupies an office of trust within article XVI, section 65. Tex. 

Const. art. XI, 95; Willis v. Potts, -- 377 S.W.2d 622 (Tex. 1964). The 

person in question had OVI:I' one year remaining on his term as justice 

of the peace when he fi:.ed for 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 firirt question: 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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Honorable Pablo Avila - Page 3 (JM-553) 

provision for automatic m~signation of city officers who become 

candidates for another of:iice under certain circumstances. Article 

XI. section 11. of the constitution provides in part: 

Sec. 11. A g,me Rule City may provide by 

charter or chartfir amendment, and a city, town or 

village 0peratir.g under the general laws may 

provide by majority vote of the qualified voters 

voting at an election called for that purpose, 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 terure under Civil Service shall not 

be affected hereby. 

Provided, however, if any of such officers, 

elective or ap:?ointive, shall announce their 

candidacy, or shz.11 in fact become 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 

filled pursuant l:cs law in the same manner as other 

vacancies for such. office are filled. 

The constitutional provision was construed by Attorney General 

Opinion M-586 (1970). which considered whether 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 officers whose term of office was 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 article XI, section 11. 

The answer to your question depends upon whether the mayor of 

Crystal City serves a two year term, or whether his term of office has 

been lengthened beyond two :years. If he serves only a two year term, 

he is not subject to the provision in article XI, section 11 for 

automatic resignation. If his term as mayor is longer than two years, 

then he 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 the mayor'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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Honorable Pablo Avila - Page 4 (JM-553) 

to serve as mayor would constitute his automatic resignation from his 

office as mayor. 

In the event that the mayor of Crystal City may 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 involve him in a conflict of interest. Whether he has engaged in 

conduct that would violate 'any law depends upon all the surrounding 

facts and circumstances and is beyond 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 time whmzn more than one year remained on 

his unexpired tern of office as justice thereby 

automatically resigned 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 automatically resign 

that office by becoming a candidate for county 

judge at a time ohen his unexpired term of office 

as mayor exceeds 'me year. If the mayor's term of 

office exceeds two years, then his announcing his 

candidacy for comty judge at a time when more 

than one year resmlns on his term as mayor constitutes an automatic resignation of the office of 

mayor. 

Attorney General of Texas 

JACK HIGHTOWER 

First Assistant Attorney General 

MARY KELLER 

Executive Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Comittee 

Prepared by Susan L. Garrison 

Assistant Attorney General 

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