Untitled Texas Attorney General Opinion ( 1984 )

The Attorney General of Texas
JIM MATYOX March 6, 1984
AttorneyGeneral
Supreme Court Building Honorable Patrick J. Ridley opinion No. JM-132
P. 0. Box 12549 Bell County Attorney
Austin. TX. ?9?11- 2549 P. 0. Box 474 Re: Automatic resignation of
51214752501 Belton, Texas 76513 county comissioner from office
Telex 9101974~1357
Telecopier 5121475-0256
by filing for candidacy for
another office
714 Ja~hscm. Suite 7W Dear Mr. Ridley:
Dallas. TX. 75202.4506
2141742.8944
You have asked.whether. by reason of article XVI, section 65 of
the Texas Constitution, a county commissioner with more than one year
4924 Alberta Ave.. Suite 100 of his term remaining, has automatically vacated his office by
El Paso. TX. 79905.2793 applying with a political party to file for election to the board of
915/533-3464 directors of a water improvement district, an office~for which he was
ineligible by reason of special circumstances. You have stated, and
..d1 Texas. Suite 700
we will assume, that the commissioner at issue is a land developer and
Hws,on. TX. 77002.311 t is ineligible for this position under section 50.026 of the Water
?131223-5895 Code, which bars land developers from membership on the governing body
of a water district. It is our opinion that the commissioner has
vacated his county position, pursuant to article XVI, section 65 of
606 Broadway. Suite 312
Lubbock. TX. 794013479
the Texas Constitution, regardless of his ineligibility to hold the
9061747~5239 office for which be has filed.
A pertinent portion of article XVI, section 65 was approved by
4309 N. Tenth. Suite S
the voters In 1958:
McAllen. TX. 78501-1695
5121652-4547
Provided, however. if any of the officers named
herein [County officials] shall announce their
200 Main Plaza. Suite 400 candidacy, or shall in fact become a candidate, in
San Antonio. TX. 79205.2797
5121225-4191
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
An Equal Opportunity/ then held, at any time when the unexpired term of
Affirmative Action Employer 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 vacany thereby created shall be
filled pursuant to law in the same manner as other
vacancies for such office are filled.
r Section 65 does not violate the equal protection clause of the
federal Constitution. Clements v. Fashing, 102 S. Ct. 2836 (1982). A
p. 559
Honorable Patrick J. Ridley - Page 2 (JM-132)
-\
comparable provision applies to municipalities. -Cf. Tex. Const.. art.
XI. 011.
The position of water district board director is unquestionably
an "office of trust'! under section 65. In an opinion based upon
similar facts, this office concluded that a justice of the peace, upon
announcing as a candidate for director of a water control and
improvement district, automatically resigned his office. when there
was more than one year remaining in his term. Attorney General
Opinion H-767 (1967). Section 65 has also been construed to effect
the automatic resignation of a county conxuissionerwho seeks election
to a school board with more than one year remaining in his term.
Ramirez v. Flares. 505 S.W.2d 406 (Tex. Civ. App. - San Antonio 1973,
writ ref'd n.r.e.); Attorney General Opinion C-43 (1963).
Under the plain language of article XVI, section 65, one's mere
announcement for another office constitutes an automatic resignation.
See Attorney General Opinion WW-1253 (1962) (announcement made by
press release published in a newspaper). It is irrelevant that the
office holder announcing his candidacy for another office is
ineligible on other grounds to assuma the position for which he has
announced. Therefore, a vacancy in the office of county conmissioner
?
presently exists.
SUMMARY
A county commissioner who files an application
to place his name on the ballot in an election for
the directorship of a water district automatically
vacates his office if more than one year remains
in his term, even though he Is ineligible for the
office of water district director.
JIM MATTOX -
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by David Brooks
Assistant Attorney General ?
p. 560
Honorable Patrick J. Ridley - Page 3 (JM-132)
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Jon Bible
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
Bruce Youngblood
p. 561