Untitled Texas Attorney General Opinion

‘
Honorable Pablo Avila Opinion No. JM-553
Zavala County Attorney
Zavala County Courthouse Re: Whether a mayor automatically
Crystal City, Texas 78839 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 non-
paying 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 relin-
quished his position as just:lceof 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,lDistrict 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 #citycouncil 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
r 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:lon65, 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, howlrver,if any of the officers named
herein shall an&&e their candidacy, or shall in
fact become a c&didate, 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 th& the office then held, at any
time when the 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 satnemanner 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
p. 2455
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 chartfiramendment, 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.11in 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 consti-
tute 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<:dbeyond 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 un-
expired 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
p. 2456
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 whmznmore 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 consti-
tutes 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
p. 2457