Untitled Texas Attorney General Opinion ( 2004 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
June 29,2004
The Honorable Richard J. Miller Opinion No. GA-02 10
Bell County Attorney
Post Office Box 1127 Re: Whether under article XVI, section 65 of the
Belton, Texas 765 13 Texas Constitution a justice of the peace announced
his candidacy for another office on December 3 1 by
informing a newspaper reporter that he would be a
candidate for another office (RQ-0162-GA)
Dear Mr. Miller:
You ask whether under article XVI, section 65 of the Texas Constitution a particular justice
of the peace announced his candidacy for another office on December 3 1 by informing a newspaper
reporter that he would be a candidate for another office.’
Your query is limited to a very specific fact situation. You explain that a justice of the peace
in your county, whose term was to expire on December 3 1, 2004, conferred privately with a
newspaper reporter on December 3 1,2003. See Request Letter, supra note 1, at 1. He affirmatively
stated to the reporter that he intended to run for the office of county commissioner in the March 2004
primary. See id. The next day, January 1,2004, the reporter’s story on the justice of the peace’s
candidacy appeared in the newspaper. See id. You do not provide us with any information about
other statements the justice of the peace may have made about his plans to run for county
commissioner before January 1,2004. Our analysis is limited to the effect of the conversation with
the reporter.
Under article XVI, section 65(b) of the Texas Constitution, justices of the peace and other
local office holders, see TEX. CONST. art. XVI, 5 65(a), who run for another office in certain
circumstances automatically resign their current office:
If any of the officers named [in section (a)] 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,
‘See Letter from Honorable Richard J. Miller, Bell County Attorney, to Honorable Greg Abbott, Texas Attorney
General (Jan. 7,2004) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter
Request Letter].
The Honorable Richard J. Miller - Page 2 (GA-0210)
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
manner as other vacancies for such office are filled.
Id. art. XVI, 0 65(b). Automatic resignation occurs only if the office holder announces the candidacy
or in fact becomes a candidate for another office “when the unexpired term of the office then held
shall exceed one (1) year.” Id. You wish to know whether the justice of the peace announced his
candidacy by speaking with the reporter on December 31, 2003, in which case he automatically
resigned because his remaining term as justice of the peace on that date exceeded one year. See
Request Letter, supra note 1, at 1. On January 1,2004, when the newspaper published the reporter’s
story, the justice of the peace’s remaining term did not exceed one year.
Under article XVI, section 65, automatic resignation is triggered in either of two ways -
announcing one’s candidacy or in fact becoming a candidate. An officer “in fact become[s] a
candidate” by formally applying for a place on the ballot. See Ramirez v. Hares, 505 S.W.2d 406,
409-l 1 (Tex. Civ. App.-San Antonio 1974, writ ref d n.r.e.); Tex. Att’y Gen. Op. No. JC-0249
(2000) at 3. Prior attorney general opinions have concluded that an officer announces a candidacy
for office by making a written or oral statement “[i]f a reasonable person may conclude from the
statement that the individual intends, without qualification, to run for the office in question.” Tex.
Att’y Gen. Op. No. JC-0249 (2000) at 2 (citing Tex. Att’y Gen. LO-95-071, at 2). A person who has
merely stated that he or she will “seriously consider running” for an office if the incumbent resigns
has not announced a candidacy. See id. By contrast, a person who states without qualification that
he or she will run for a particular office has announced a candidacy for purposes of these provisions.
See id.; see also Tex. Att’y Gen. Op. Nos. DM-377 (1996), WW-1253 (1962). These attorney
general opinions also suggest that an announcement is a statement that the.office holder makes in
a public setting or a statement that is otherwise available to the public. See, e.g., Tex. Att’y Gen. Op.
Nos. DM-377 (1996) (county court at law judge’s statement at a commissioners court meeting that
he was “at that moment” a candidate for a judgeship constituted an announcement for purposes of
article XVI, section 65); WW-1253 (1962) (newspaper publication of justice of the peace’s press
release stating that he would be a candidate for another office constituted an announcement for
purposes of article XVI, section 65).
Here, there is no doubt that the justice of the peace stated with certainty to the reporter that
he would be a candidate for county commissioner. See Request Letter, supra note 1, at 1. The
question is whether the conversation constituted an announcement for purposes of the resign to run
provision. We are not aware of any judicial or attorney general opinion addressing whether an office
holder’s statement made privately to a reporter constitutes an announcement under article XVI,
section 65. However, prior opinions of the office indicate that an announcement must be both
certain andpublic to trigger automatic resignation. See Tex. Att’y Gen. Op. Nos. DM-377 (1996),
WW-1253 (1962). This is consistent with the common understanding of the word “announce” to
mean “to make known publicly.” WEBSTER’S NINTH NEW COLLEGIATEDICTIONARY 87 (9th ed.
1990); see also Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578,580 (Tex. 2000) (“Presuming
The Honorable Richard J. Miller - Page 3 (GA-0210)
that the language of the Texas Constitution is carefully selected, we construe its words as they are
generally understood.“). It is also consistent with the rule that constitutional and statutory provisions
relating to eligibility for office must be strictly construed against ineligibility. See Wentworth v.
Meyer, 839 S.W.2d 766,767 (Tex. 1992) (“Any constitutional or statutory provision which restricts
the right to hold office must be strictly construed against ineligibility.“) (citing Brown v. Meyer, 787
S.W.2d 42 (Tex. 1990)). In certain cases, an officer holder’s statement to anewspaperreporter could
constitute or result in an announcement that is public as of the day of the statement. Based on the
facts you have relayed, however, it appears that the justice of the peace’s conversation with the
reporter was private and did not result in any publication of information about the justice of the
peace’s plans on December 31. A finder of fact could reasonably conclude on this basis that
the justice of the peace’s December 31 conversation with the reporter did not constitute an
announcement of the justice of the peace’s candidacy for county commissioner. This office has no
basis for concluding as a matter of law that the justice of the peace automatically resigned under
article XVI, section 65.
The Honorable Richard J. Miller - Page 4 (GA-0210)
SUMMARY
A justice of the peace did not automatically resign under
article XVI, section 65 ofthe Texas Constitution merely by informing
a newspaper reporter on December 3 1 that he was running for another
office. Assuming that the private conversation did not result in any
publication of the information on December 3 1, a finder of fact could
reasonably conclude that there was no announcement on December
31.
Very truly yours,
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Mary R. Crouter
Assistant Attorney General, Opinion Committee