~THEATCORNEYGENERAL 

OF TEXAS 

January 20, 1960 

Honorable Bucney Walker 

Criminal Dletrlct Attorney 

Oplnlon No.. w-788,, 

Re: Whether an officer who 

resigns his office upon 

becoming a oandldate for 

a~nother office, a8 provided,,in Article XVI, 

Section 65 of the Constitution, Is eligible 

for appointment to fill 

the, vacancy created by 

his resignation. 

Waco, Texas, 

Dear Mr, Walker: ,, 

Your request for an opinion reads as follows: 

"The County Commissioners Court of McLennan 

County has called upon my office for an opinion. 

The factual background of thls~lnqulry Is this: 

The County Judge of McLennan County Is presently 

serving a term which ends December 31, 1962. The 

County Judge contemplates announcing for one of 

the District Judge offices here. Under Artlole 

16, Section 65 of the Texas Constitution, as 

amended November 4, 1958, this action of the County 

,Judge would constitute a resignation from the 

office of County Judge. 

"The Commlsaioners Court then,wants to know 

whether,they can legally; after the announcement 

for Dlstlrlct .JuQe, appoint the incumbent ,County 

Jubge,~~ih thd ~i@e#!nqr~ gtresorlbed by, law, to fill 

~~the,ve&nag o.Wited by hid own reislgnation and 

,serve untI.l~hie 8uccesaoY? has qua&lfled,for the 

omice * 

"The speclffc proposition, 'therefore, submitted 

tb you Is as follows: 
,. ” 

t 

Honorable Burney Walker, page 2 ‘(W-788) 

” ‘Where’ an’ elected off lclai resigns, either 

voluntarily or auto&&zally,by operatldn of law, 

as the result of becoming a .oandldate for another 

office of profit or, thrust,’ under, the laws of this 

state; and the’unexplred’ term of the offici ,beltig “< 

vacat,ed exceeds one .year, may .he be app,olntedi In 

the manner prescribed by law,~ to fill the vacancy 

~.?re.ati?d ,by hl,s own reaignatlon ,and serve urit1.l his 

eucceseor has quallf led .for the-‘. Off Ice?’ 

“Attached ‘herewith 1B ,a ,brlef prepared for the 

County Judge by then law firm ‘Or Ml-on and ,Xaley, 

,’ on’ this question. ,’ 

‘. ‘X ,coneur and agree with the .rei<, reached by 

Ml&on ana :%ley,‘.and-‘1 hive bbeti.able to find no 

pr~hlbltldti, under ‘Pcxae law,s, ,‘:whlhh would prevent,. 

th6 r&&ppolntm&nt’ :iti ‘question. ., 

“It would be greatly appreofated If we cbuld 

h&e your department’s opinion in thj..s connection 

at youp earliest convehlence.” 

The .provFsfon In Artlclk XVI, 8ebtlo.n 65, of the Texas 

C&ititutlOn which Is here.inv@ved was added by an imendment 

proposed by the’ Leglslatu,re, In ~1257 and, idbpted ,in, 19%. It 

reads as follows: 

‘, 

“Provided, however,, If any if’ the ..&ficere 

named,hereln shall announce their Candidacy, ‘or 

shall in fact become. a candidate, ,ln any General, ., 

~. Special or Primary ~El6otlo~,~.for~~~ office of 

profit ?r trust under the laws ,Of ,,thls State ,oti 

:. :,. the, United State6 other ‘than the ~office than held, 

at any time when th;d uni%p$.red t&r&of the office 

.ttie~h held shall’ exoe?d one ‘(1) year, ,@uch announoement oreu,ch dandldaay shall oanetltute an automatic 

resignation of the office,then he&d; ‘and the vacancy 

thereby ore&ted shall be fllled.Duosua,nt to law in 

the ‘aa% manner aa mother .vaca;n&s for suoh office 

are filled.” .~,‘. ,,j 

Thti answer .to’your queetloii tui&&the puspose of this 

provision) atld speclflOal&y whether it wad Intended to make ‘the 

resigning officer. %nellglble’to serve ln’,tbat .,offlce while he 

was a candidate for anotheli’ office., A~ eonstltut%onal provision 

of doubtful meaning, should be construed with a view to ascertaining and carrying out the purpose foti which It was Intended,, 
:., ‘. ,, 

HOhirable B&me; Walker, page'3 (v-'@B)'~ 

having regard to the "evils sou ht to be remedied." 

~pkowslcg v. Newman ‘134 Tex a&” !~6s’~w~2~d1% {igy 

In@.. co. v. Warstill 124 Tex 

mls ,provlslon doessnot In e&es; terms'mke the resignkg 

officer lnellgfble to appointment to fill the vacanoy;but we , 

are of the opinion' that it should be so oonstrued if Ons purpose of the amendmbnb wa8 to prevent. the officer from holding ', 

) the.,office during oandibaoy:for another office. a 

A review of the background of this provision is essential 

to an as&ertalnment of its purpose. aBy conatltutlonal amendments adopted in 1954, the terms of certain oounty and district 

officers were Increased from two years to four years0 and the 

terms were staggered so that appraxlmately one-half of the 

offices are tiegularly filled by eleotlon every two years. 

Under this new.arrangement, It was possible for an officer to 

ruri for another offfce.ln the middle o? hi,8 term without rellnqulshing the offlae he then held. X$ he was not elected to 

the other office, 'he continued to hold the office to which he 

had been previously elected; if he was elected to the other 

office, his~acceptanoe of that office oreated a vacancy of two 

years In the offLce he formerly held,,and the vacancy had to be 

filled by appointment until the next general election. The 

effect of election to the othe,r office was to turri an elective 

office Into an'appointlve office for ap 

!l 

r~oxlmately half the 

term (and in practical effect for a fu& two years); a result 

which 1s contra,z!y to the often-expressed 'concept that elective 

offices should be filled by the people rather than by appolntment and that the offlce,should be returned to the people for 

filling as soon ads practieabbe after a,vaoancy occurs. In our 

opinion, one purpose of the 199 amendment was to reduce the 

duration of appofntmente;s Under this amendment* there Is still 

a vacancy which must be filled by appointment from the date of 

the resignation Until the, following general election, but the 

length of the time for which the appointee serves will in moat 

instances be considerably less than for a vacancy occurring 

after then election. Appointment of the resigning offloer'to 

fill the~.vaeancy izntfl the next general eleotion would not be 

Inconsistent with thla purpoeep and 'if this were the only purpose of the amendment we would hold that he ooUld be appointed 

to, fill the vaoanoy,. The brief which you furnished us reaohes 

the conclusion that this is the only pkpoae of the amendment 

and thst the 'officer could be appointed to fill the vacancy. 

However9 we are convinced that the Legislature also had another 

purpose in mfna when it proposed the amendment and that the 

people general~l.yso understood when they adopted it, 

Unfortunately, the Texas Legfslature doe8 not preserve 

an offfclal rcoord of eommlttee hearfnge and floor debate8 and 
Honorable,Burney Walker, page 4 (Ww-788) 

discussions. There Is nothing In the legislative journals and 

other official records to give a' clue to ,the purposes of ,the 

amendment beyond,the,wordlng of the~amendment:itself; But as 

_~ to likely' lnt&tit':~Of'.the :Legl~slature-~"and,,.the~und~erstandl.ng ~atid 

Intent of the~,eX~Ctoi?ate~~conce~nlngS~s~~meanin~~and puti age, : 

We have found,ttiat 'in $he~,numerous fiubllq dls'cusa~dns'd,,~.the~ :, 

amendment prlor~ t,q ,ttie ,1958 'eletitlon':~thc, @ommen$atorsi~',Oon.blsteqtly 

': ment~loned~ that. done ,of. ~ttie' purpcisea. was,.:tO :prevent~'an~~,offlc,e 

'~holder.:from,devOt,ing more~thati the.la&yezir Of:hi.s'.four-year, 

".~ term of~offi,~e~~to,a~~politlc~l campaign for another office. The 

followi&' excerpts,lllustrate the, nature of these co&m&fits., 

Dallas Newsi ~,Ootober” 17, ,:1958: .~~ ': ~., ',: ~, ', .,:, 

. 

Cdnstitutional.:‘change,.,,aS, -1954, ',:w&b .~b::ii&& .it 1': A :, : 

po,~s’s@iJ.e~~~~$6r ,d.otitit~( ~ffl~ers::to::d~~~ts~‘al~~st~:, : ‘~ .: ~.~i 

thelr~'entlre't;;e,rms,~~b duties of,.,Office. Under 

the: 2-year term.'sys$em, they had, to, ruti fo,r ~~ 

,I~ 'Pe-eM3$o'n one year, out of ,'.eyery two. "~' ,: . . .' 

oVer$ooki?d-&such. ~off’io.e: hr&%irs‘:‘. OdiiI@ru~,“fo.@ ,. ,~t ‘., 

other :offl%es In the’ middle bf ~~ttieir terms,.,: .' 

,. 

"The .new i&e,'lf 'agproved,'by~voters, would 

tend to force office holders tq,glve~undlvid&d 

attention to;hiS .office., for Eit,~leiSt three"gear8, 

of a faur-year t,erm. " " i ',,, 

~~ ~, 

.' 

., .:,. ..~ 

', Houston Chroni&, &&ber 8,,~$@ -Is: ':'. .:,::,/,',~y~ I 

." ".-~, '~ 

"T~he primary pus$osei ~of ':'8&tin& up fb&&ar :. 

terms~ ,for lo'cqil officer8 tiae,,go,:‘en&blt! WeaL to:’ :, > 

devote mor,q time, to offloqdtiti&8 ,.than.',wae",possl-.,,~,' 

‘, ~ble-dor ,expedieht--wheti ~.the$.~~d:~;tp: Suti:~$b~'pe- 

,eJectlo,$ every, two'years.~. It. wati.the $@islatiir~!a 

idea,~ In. su‘bmi$+-ig Amendmetit 'NQ'.",4 .that~ %iaving ',. 

open the.’ .Oppo,titu$l,t$ to,’ rtin’ Pby some.~dth&r office, ~‘’ . 

~,~ ” ‘~ “at ,qL+-$e,rij ,woUld $aftly ~,dtjfeat tihat~‘.ptiti$oae.” 

.~ 

.,,’ ,. 

.;,;.,~ 

‘. ‘. 

.’ 

‘. F@@ort; prepared by T&x Research Association of 

.tiouston, and Harris County, Inc. : 

!lhen~ the, &n<i&;ai: g~e&fn&t’, &$e&ing ,,’ 

t,he:'t'em of various qoutity .OtiPid$al,& f&m't&'~tO ' ,:~' 

,, ., 

~(. ', 
Honorable Burney Walker, page 5 (~~-788) 

four years was adopted In 1954, It was the conception that the longer terms of office would’ 

reduce time spent In running for election and 

would allow county offfcfals to concentrate .on 

their jobs. That is, a four year term, it was 

thought, would permit fan oPfl.ciaS to ,glve.his 

office his undivided attention f,or at. least three, 

years., without, the necessity .of running again. 

“Because, under the ,provlsions of the 199 

ame’idment;, approximately half of,the, officers of 

each county areelected every tvjo~~. yeara:,for,~fbriti ,,‘, 

year’terms,, .lt 1s possible f,Or. an officer ‘to run .’ 

for, a different: office at the general election 

coming in the micjdl’+ ,of his term and thereby d,efeat the baelc purpose of the. 1954 iunendment. 

This ,new amendment would require the offlc’ial to 

resign before~ announcing for some other’office 

and thus prevent him from campa~gnlngfor anbther 

office and preaumbly ,neglectihg .tq adequately 

fulfill the dQtie% of the off&c& .$o~. whloh he,~ was 

previ~ously”ele&ed;” ” “. 

Bulletin prepared ,by, League of Women. Voters. of Texas: 

?h&& : titao’ ?Se”F,@R, @e’ ,$mi$ndrn&td sa$ :, 

“The ,automati& .~reslgnatlon feature would 

keep. theee officials on t.he job rather than 

campaignfng fck a different offl.ce at talpayers 1 expense, with, then ,resultant, loss of 

servf.ce s 

“Unde’r present’, provisions a candidate may wait 

to resign f.rom one office until the last minute 

before being sworn In for another. This pr&tlce 

la not fair t,o the people for, It then ‘,leaves an 

unexplred:term to, be filled by a costly speolal ‘, 

elections or by appol$nei?t : !’ 

.’ .; 

While these private, un6ffloial l&er$retatlbns are not 

conclusive of the, Intent and purpose of the,amefidinent, they give 

an Insight into ,the $revallfng conception of the ,“evll sought to 

beg rem&die&! bye ‘the amendment O This ,puPpose~ o$ seeking to, limit 

polltloal. activity to the last year ,of .the: four-yea? term also 

furrilshea ‘an e%planation of. low, ,th&:,&&etidment ,‘provide& for automatlc reslgnat,ion if the officer ‘becomes a candidate for another 
Honorable Burne Walker, page 6 (W-788) 

offlc'e more than one year before expiration of his term rather 

than tying the resignation to the length of the unexpired 

portion of the term after'the election at which he Is a candidate for another office. 

As further substantiation of this purpose, another constitutional amendment proposed by the same Legislature and 

adopted at the same election as the 1958 amendment to Section 

65 of Article XVI, also contains a similar provision for automatic resignation of municipal officers holding terms of more 

than two,years. Texas Constltution,'Artlcle XI, Section 11, 

adopted November 4, 1958, This provision with respect to munlcipal officers cannot be satisfactorily rationalized on the ground 

that its sole purpose was to reduce the appolntive tenure or to 

eliminate the expense of a special election which would result 

from the officer's election to another office, but It comp,orts 

withthe purpose to prevent the off,lcer from engaging in a 

political campaign for another office at any time except the 

last,year of his term, 

To permit an officer who Is running for another office 

in the middle of his term to be reinstated In the office by 

appointment after his resignation would defeat this purpose 

of the amendment. Being convinced that this was one of the 

purposes, we hold that he may hot be appointed to fill the 

vacancy created by his resignation. * 

In the brief wh1c.h you furnished us0 it was stated that 

the only comparable statutory enactment or constitutional provision that the author had been able to find Is a Montana 

;$?~;40,. 

construed in Mulholland V. Ayres, 99 P,2d 234 (Mont. 

We also have been unable to find any other case 

construing a similar provision. The Supreme Court of Montana 

summarized the statute and Its purpose as follows: 

"Section 1 of Chapter116 of the Laws of 1937 

provides, In substance, that whenever any person 

holding any office under the laws of the state, the 

term of which Is longer than two years, shall become a candlda%e for election to any elective 

office; other than for re-election to the office 

held bye him, he shall resign the office held by 

him, and if he fails to do so the office shall become vacant and unoccupied ipso facto. Section 2 

provides for filling such vacancies. Section 3 provides: 'This act shall not apply * * * .(e) to the 

incumbent of any office whose term of office expires 

within (70) seventy'days after the ensuing general 

election. 

, 

\ 

: * 

1 
I, 

. 

Honorable Burney Walker, page 7 (~~-788) 

“The question presented Is whether there la 

now’s vadanog In the office of state senator for 

SilVer Bow county. In.conaiderfng this question 

we must look flrst’to the object and purpose of 

the Act and the evil sought to be remedied by It. 

It Is plain %h@t the purpose of Chapter 1.16 18 to 

encourage the Pilling of vacancies by election, 

rather than by appointment; bg reducing the duration of appointments and to,dlscourage a person 

already holding one office carrying more than a 

two-year term and the’term of which would not expire until more than seventy days after the ensuing 

general ilectlon, Srom retaining that office while 

endeavoring to,obtaln another at auoh election. 

The effect of chapter 116 i?‘to eauae a vacancy to 

exist in time 80 that. it can be filled by eJectIon 

at the same election which causes the vacancy, and 

making the Interim appointment of .short dtiratlon.” 

The court construed the statute aa havlngsas one of Its 

purposes the reduc,tion of ‘duration of appointments, but it also 

Sound that another purpose was to dlacourage the office ho,lder’ 

from retaining the office while endeavoring to obtain another. 

The question of ellglbility,for ,appointment to fill the vacancy 

wa8 not involved In that case. Whether the court would have 

used the WoPd “prevent ” instead of “discourage” if that question had be’en presented is oonjectural, but at least ft can be 

seen that the,couz% considered retention of the office while 

seeking another.& one of the evils sought to be remedied. 

In thfa opinion we’are not passing on the constitutionality 

of the 1958,amendmentatto Section 65, of Article XVI with regard 

to posafble,inf?action OS the equal protection clauee of the 

14th Amendment ~to the United States Cdhstitution, or other 

poaslble constitutional objections ~whlch might be leveled.against 

it. We recognize that this requirement of automatic resignation 

Imposed on ofS%cers covered by Sectfon 65# when there Is no 

‘comparable prqvi.slon applicable to district and appellate jud~ges 

and other dfetrlet and state officer8 having terms OS four or 

81x years, .and various ,other phaees of It.8 application as conk 

etrued In this opinion, raise a poetifbility of ,invalidity under 

the Federal Constitution. Seq, e.g., Mulholland v. Ayres, supra; 

Burrougb B v. Lylea, 142 ,Tex. 764,,~ 1.81 3 W 24 ~(0 (1944) But we 

a0 not f 1 th t it fs neceesary Sor ua’t: pass ins Its ionstltutlonallt~ln a&werlng your question, We are mentioning possible 

Invalidity, not by way oS~ intimatl,ng that we think it is invalid 

under the Federal’ Constltutfon, but because the brief which you 
Honorabl6 Burney Walker, page 8 (W-788) 

furnished ua has suggested that lt,would. be Invalid If the 

OfficeF is lnel&glbJe fork appointment. We do not think it is, 

Incumbent upon the Commis.aloners court to obtain a ruling on 

its constltlltiohallty before making an appointment In the 

event theG+mty Judge beiximes a dandldate'for the other office. 

Bquaf protectXon.ls 8 Iprivate right tb b6 asserted by the indlvldu&l,who, alB,Uns'to have'been deprived of It. If the County 

Judge beoam@ a 'aandldate ,for the other office and &t the same 

time lnsieta that-he is entitled tb continue 3i.n his present 

office, he nil1 have rqqourse to the courts to protect whatever 

fight he @Lght haoe,to tha'offlae~against the adverse alald tf 

the Commleelonere Coq?tls ap?oLntee. .' 

This opinion Is limited to eligibility for Bppolntment 

where there is more than one year remaining lnthe unexpired 

term of the reslgnlng officer. It does not~rule on whether he 

would,be eligible, for appointment, ii the unexplred,term was 

less than one year when the appolntment~was made. 

SUMMARY 

A County Judge or other precinct, county ore 

district offlcer'llsted In Article XVI, Section 

65 of the ,Texas Constitution who voluntarily resigns his office to become a Candidate for another 

office or who automatically resigns hi.9 office by 

becoming a candidate for another office as provided In Aptlale XVI, Section 65, la not eligible, 

during such cand.ldacy, for appointm'ent to,flll the 

vamnay~oreated by his resignation where there Is 

more than one gear remaining in the unexpired term 

of.,the office from which ,he resigns. 

Yours very truly, 

WILT+ WILi3QN 

Attorney General, of Texas 
* . . . 

Honorabl~.Burney Walker, page .9 (W-788) 

APPROVEDz 

OPINION COMMIT 

W. V. Geppert, Chairman 

Cecil C. Cammack, Jr. 

James R. Irlon,, III 

Elmer MaVey. 

C. K. Rlahddds 

REVICEWH):: FOR THE ATTORNEY GENERAL. 

BY: 

Leonard Pessmore