## ~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~hheld 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. aByconatltutlonal 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!lr~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 adspractieabbe 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 andHonorable,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 ~~ttieirterms,.,: .'

,. "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~heprimary pus$osei ~of ':'8&tin& up fb&&ar :. terms~,for lo'cqil officer8 tiae,,go,:‘en&blt! WeaLto:’ :, > 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 $revallfng conception of the ,“evll sought to begrem&die&! bye‘the amendment O This ,puPpose~o$ 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

### HonorableBurne Walker,page 

## 6 (W-788)

offlc'e more than one year before expirationof his term rather than tying the resignationto the length of the unexpired portion of the term after'theelectionat which he Is a candidate for another office. As further substantiation of this purpose,another constitutional

amendmentproposedby the same Legislatureand adopted at the same electionas the 1958 amendmentto Section 

## 65of Article XVI, also containsa similarprovisionfor automatic resignationof municipal officersholding terms of more than two,years. Texas Constltution,'Artlcle XI, Section 11, adoptedNovember 4, 1958, This provisionwith respect to munlcipal officers cannot be satisfactorily rationalizedon the ground that its sole purpose was to reduce the appolntivetenure or to eliminatethe expense of a specialelectionwhich would result from the officer'selection to another office,but It comp,orts withthe purpose to prevent the off,lcer from engaging in a political campaignfor another office at any time except the last,yearof his term, To permit an officerwho Is running for another office in the middle of his term to be reinstatedIn the office by appointmentafter his resignation would defeat this purpose of the amendment. Being convincedthat this was one of the purposes,we hold that he may hot be appointedto fill the vacancy createdby his resignation. *
In the brief wh1c.h you furnishedus0 it was stated that the only comparablestatutory 

### enactmentor constitutionalprovision that the author had been able to find Is a Montana ;$?~;40,.

construedin MulhollandV. Ayres, 99 P,2d 234 (Mont. We also have been unable to find any other case construinga similarprovision. The Supreme Court of Montana summarizedthe statuteand Its purpose as follows:

"Section1 of Chapter116 of the Laws of 1937 provides, In substance,that wheneverany person holding any office under the laws of the state, the term of which Is longer than two years, shall become a candlda%efor election to any elective office; other than for re-electionto 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 unoccupiedipso facto. Section 2 provides for filling such vacancies. Section

## 3 provides: 'Thisact shall not apply * * * .(e) to the incumbentof any office whose term of office expires within 

## (70)

seventy'days

after the ensuinggeneral election.

, \

: * 1I,

. 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 youHonorabl6 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.nhis 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 pro

### vided 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 OPINIONCOMMIT W. V. Geppert, Chairman Cecil C. Cammack, Jr. James R. Irlon,, III Elmer MaVey. C. K. Rlahddds REVICEWH)::

FORTHEATTORNEY

GENERAL. BY: Leonard Pessmore