Does a Texas official automatically resign by announcing a run for another office, and can they keep serving?

Plain-English summary

Texas has a constitutional "resign to run" rule. Under the last paragraph of article XVI, section 65, certain officers (including a county court-at-law judge) who announce their candidacy, or in fact become a candidate, for another office, at a time when more than one year is left in their current term, automatically resign the office they hold. The Hopkins County Attorney asked the Attorney General a string of questions after the county court-at-law judge told the commissioners court, at a March 1995 meeting, that he was "at that moment" a candidate for a district judgeship. More than a year remained in the judge's term.

The first question was whether the judge's statement counted as announcing his candidacy. The office concluded that it did, as a matter of law, on the assumption the judge made the reported remarks. Saying you are a candidate, in a public meeting, is announcing a candidacy. So under section 65, the judge automatically resigned his county court-at-law office the moment he announced.

The harder question was what that automatic resignation actually does to the office. Article XVI, section 17 of the Texas Constitution says all officers continue to perform the duties of their offices until their successors are duly qualified. This "holdover" rule exists to keep government running so an office does not sit empty. The county attorney asked whether an officer who automatically resigns under section 65 nonetheless holds over under section 17 until a replacement qualifies. The office said yes. It noted that for many other ways a Texas office becomes vacant (holding two incompatible offices, taking a federal office, moving out of the jurisdiction, a judge turning 75), courts and prior opinions have said the holdover rule does not apply, because those provisions use strong vacancy language. But section 65 is different: it speaks of "automatic resignation," and the settled law of resignations is that an officer holds over until a successor is appointed and qualifies, even after a resignation is tendered and accepted. Earlier opinions (WW-1253, C-43, H-161) had reached the same conclusion, and the office reaffirmed them. So the judge automatically resigned but kept serving until his successor qualified.

The office answered the remaining questions briefly. The judge could not be reappointed to the very office he had just vacated by automatic resignation; an earlier opinion (WW-788) had held that an officer who resigns this way is ineligible to fill the vacancy he created. The vacancy is filled the same way as other vacancies in that office: under Government Code section 25.0009, the county commissioners court appoints someone, who serves until the next general election and until a successor is elected and qualified. No statute sets a deadline for making the appointment or prescribes a special procedure, but the commissioners court has to follow the Open Meetings Act, which lets it deliberate the appointment in closed session but requires the vote to be taken in open session.

Currency note

This opinion was issued in 1996. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

This opinion construes article XVI, sections 17 and 65 of the Texas Constitution, Government Code section 25.0009, and the Open Meetings Act (Government Code chapter 551) as they stood in 1996. The constitutional resign-to-run provision and the statutes have seen amendments since then, and the body of Attorney General opinions on automatic resignation has continued to develop. Read this page for the office's 1996 reasoning, and verify the current text of article XVI, sections 17 and 65, the current vacancy-appointment statute, and current Open Meetings Act procedures before relying on any specific rule here.

What the opinion meant at the time

For local elected officials thinking about running for another office: The opinion meant that publicly announcing a candidacy for a different office, with more than a year left in the current term, triggered an automatic resignation under article XVI, section 65. It also meant the official did not have to walk out the door immediately: under article XVI, section 17 the official held over and kept performing the duties until a successor was appointed and qualified.

For commissioners courts and other appointing bodies: The opinion meant the automatically resigned officer kept serving until a replacement qualified, and that the same officer could not be reappointed to the seat he had just vacated. The appointing body filled the vacancy under the ordinary vacancy statute (here, Government Code section 25.0009 for a statutory county court judge), with no statutory deadline, but had to comply with the Open Meetings Act.

For lawyers handling officeholder and election questions: The opinion is a constitutional-construction holding that turns on the word "resignation." It distinguished section 65 (automatic resignation, which carries the holdover rule) from other vacancy provisions (sections 40, 12, 14, and article V, section 1-a) that use stronger language and do not incorporate resignation law. It reaffirmed WW-1253, C-43, H-161, and WW-788.

Common questions

Does announcing a run for another office cost a Texas official their current job?
Under article XVI, section 65 it can. If a covered officer announces a candidacy, or in fact becomes a candidate, for another office while more than one year remains in the current term, that announcement is an automatic resignation of the current office. The office concluded the Hopkins County judge's public statement qualified.

If the resignation is automatic, does the official have to stop working right away?
No, according to this opinion. Article XVI, section 17 keeps the officer in place, performing the duties of the office, until a successor is appointed and qualifies. The office held that this holdover rule applies to an automatic resignation under section 65.

Can the official be reappointed to the same office they just resigned from?
No. The office reaffirmed an earlier opinion (WW-788) holding that an officer who automatically resigns under section 65 is ineligible for appointment to fill the vacancy created in his own office.

Who fills the vacancy, and how fast?
For a statutory county court judgeship, Government Code section 25.0009 directs the county commissioners court to appoint someone, who serves until the next general election and until a successor is elected and qualified. The office found no statute setting a deadline or a special procedure, but the commissioners court had to follow the Open Meetings Act.

Background and statutory framework

The "resign to run" paragraph was added to article XVI, section 65 in 1958, building on a 1954 amendment that had extended certain county officers' terms from two to four years. The staggered four-year terms made it possible for an officer to campaign for a different office in the middle of a term, and the resign-to-run provision was meant to discourage that by treating an announcement of candidacy (with more than a year left) as an automatic resignation.

The office read the judge's public statement as an announcement under the ordinary meaning of "announce," and concluded an automatic resignation followed (citing JM-395 and WW-1253). On the holdover question, it acknowledged a line of authority (Pruitt v. Glen Rose Independent School District No. 1, a Texas Supreme Court decision; State ex rel. Peden v. Valentine; Lowe v. State, a Texas Court of Criminal Appeals decision) holding that the article XVI, section 17 holdover rule does not apply where the constitution itself creates a vacancy through provisions like section 40 (dual office holding), section 12 (federal officeholders), section 14 (residence), or article V, section 1-a (judge turning 75). It distinguished section 65 because that provision frames the event as a "resignation," and settled resignation law (Jones v. City of Jefferson; Hayhurst; Keen v. Featherston) holds that a resigning officer stays in place until a successor qualifies. Giving weight to the orderly-government policy behind section 17 (citing Ex parte Sanders, and noting commentary and Clements v. Fashing on the limited reach of resign-to-run), the office reaffirmed that an officer who automatically resigns under section 65 holds over under section 17.

On the remaining questions, the office reaffirmed WW-788 (no reappointment to the vacated office), applied Government Code section 25.0009 (commissioners court appoints a successor who serves until the next general election and qualification of an elected successor), found no statutory appointment deadline or prescribed procedure, and required compliance with the Open Meetings Act (Government Code chapter 551, sections 551.074(a)(1) and 551.102).

Citations

Constitutional and statutory provisions discussed:

• Texas Constitution article XVI, section 65 (resign to run; automatic resignation); section 17 (officers hold over until successors qualify); section 40 (no more than one civil office of emolument); section 12 (federal officeholders ineligible); section 14 (vacating office for nonresidence)
• Texas Constitution article V, section 1-a (judicial office vacant when judge reaches age 75)
• Government Code section 25.0009 (commissioners court fills vacancy in statutory county court judgeship)
• Government Code chapter 551 (Open Meetings Act); sections 551.074(a)(1), 551.102

Cases cited:

• Pruitt v. Glen Rose Independent School District No. 1, 84 S.W.2d 1004 (Tex. 1935) (section 17 inapplicable to office vacated under section 40)
• Plains Common Consol. Sch. Dist. No. 1 v. Hayhurst, 122 S.W.2d 322 (Tex. Civ. App.—Amarillo 1938, no writ) (purpose of holdover rule)
• State ex rel. Peden v. Valentine, 198 S.W. 1006 (Tex. Civ. App.—Fort Worth 1917, writ ref'd) (acceptance of incompatible office vacates the first)
• Lowe v. State, 201 S.W. 986 (Tex. Crim. App. 1918) (section 17 inapplicable to officer ineligible under section 12)
• Jones v. City of Jefferson, 1 S.W. 903 (Tex. 1886) (resigning officer holds over until successor qualifies)
• Keen v. Featherston, 69 S.W. 983 (Tex. Civ. App. 1902, writ ref'd) (same)
• Ex parte Sanders, 215 S.W.2d 325 (Tex. 1948) (orderly processes of government)
• Clements v. Fashing, 457 U.S. 957 (1982) (limited application of automatic-resignation requirements)

Attorney General Opinions discussed: JM-395 (1985), WW-1253 (1962), C-43 (1963), H-161 (1973), WW-788 (1960), DM-49 (1991), JM-1161 (1990), JM-423 (1986), O-3343 (1941), M-151 (1967), V-760, O-855 (1939), O-761 (1939).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0377
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1996/dm0377.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain (including footnote numbering) — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

February 7, 1996

The Honorable Robert Newsom
Hopkins County Attorney
110 Main Street
Sulphur Springs, Texas 75482

Opinion No. DM-377

Re: Whether a county court at law judge, with an unexpired term greater than one year, who declared at a county commissioners court meeting that he was a candidate for the district judgeship has announced his candidacy or "in fact become a candidate" for purposes of article XVI, section 65 of the Texas Constitution and related questions (RQ-820)

Dear Mr. Newsom:

You indicate that, at the March 27, 1995, meeting of the Hopkins County Commissioners Court, the county court at law judge (the "judge") stated he was "at that moment" a candidate for the judgeship of the Eighth Judicial District Court. You have included with your letter a copy of a newspaper article that provides the following account of the judge's remarks at the March 27, 1995, meeting of the Hopkins County Commissioners Court:

It is my pledge to you gent[le]men, as well as the people of Delta, Hopkins, Franklin and Rains counties, that upon taking office I will do whatever is necessary to promptly and efficiently conduct their legal business. . . . It's certainly something I've thought about for some time, but it was so far away, it seemed ridiculously premature. . . . [After the present district judge announced that he did not intend to seek re-election], it became clear the only reasonable course of business was to announce for the Eighth bench. . . . I've worked hard to make the County Court-At-Law a popular court. . . . I believe it will be possible to do the same to the district court.

Bruce Alsobrook, Cable Seeking Eighth District Judge Position, THE NEWS-TELEGRAM, (Sulphur Springs), Mar. 27, 1995, at 1, 10.

You also state that, at the time of the commissioners court meeting, the unexpired term of the judge's current office exceeded one year. With this situation in mind, you ask several questions about article XVI, sections 17 and 65 of the Texas Constitution.

You first ask whether the judge's declarations at the county commissioners court meeting constitute an announcement for purposes of article XVI, section 65. The final paragraph of article XVI, section 65 provides as follows:

[I]f any of the officers named herein [including a county court at law judge] 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, 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.

To "announce" is "to deliver news; to make public or official intimation of; to proclaim . . . ." 1 THE OXFORD ENGLISH DICTIONARY 485 (2d ed. 1989). On the assumption that the county judge made the statements reported in the newspaper, we conclude, as a matter of law, that the county judge has announced his candidacy or has "in fact become a candidate" for purposes of article XVI, section 65. Consequently, pursuant to article XVI, section 65, the county judge has automatically resigned his office. See Attorney General Opinions JM-395 (1985) at 4, WW-1253 (1962) at 3.

Your second question concerns the interrelationship of article XVI, section 65 and article XVI, section 17 of the Texas Constitution, which provides that "[a]ll officers within this State shall continue to perform the duties of their offices until their successors shall be duly qualified." The purpose of this provision is to prevent vacancies in office and the consequent cessation of the functions of government. Plains Common Consol. Sch. Dist. No. 1 v. Hayhurst, 122 S.W.2d 322 (Tex. Civ. App.—Amarillo 1938, no writ). You ask whether an officer who, with more than one year remaining in his term of office, announces his candidacy for another office and who therefore automatically resigns the current office pursuant to article XVI, section 65 remains in office pursuant to article XVI, section 17 until a successor is duly qualified.

Attorney General Opinion WW-1253 (1962) addressed this question and concluded that the officer held over under article XVI, section 17. This conclusion was followed in Attorney General Opinions C-43 (1963) and H-161 (1973). However, because of the time that has passed since this office considered the interaction of sections 17 and 65 of article XVI, we will address your question.

The "resign to run" paragraph was added to section 65 in November 1958. H.J. Res. No. 31, 55th Leg., R.S., 1957 Tex. Gen. Laws 1641; Amendments to Constitution of Texas, 1959 Tex. Gen. Laws XXXV, XXXVIII. Article XVI, section 65 had been adopted in 1954 to extend the terms of certain county officers from two to four years, TEXAS LEGISLATIVE COUNCIL, INFORMATION CONCERNING CONSTITUTIONAL AMENDMENTS TO BE CONSIDERED NOVEMBER 4, Amendment No. 4 - H.J.R. No. 31, 1 (1958); see S.J. Res. No. 4, § 12, 53d Leg., R.S., 1953 Tex. Gen. Laws 1164, 1166; Amendments to Constitution of Texas, 1955 Tex. Gen. Laws XXXV, XLIV. The terms were staggered so that approximately one-half of the offices are regularly filled by election every two years. TEXAS LEGISLATIVE COUNCIL, supra, at 1. The increase in term length made it possible for county officers to devote almost their entire terms to the duties of office, in contrast to the old system of having to run for re-election one year out of every two. Id. at 2 (arguments for amendment). However, the staggered four-year terms of office made it possible for an officer to run for a different office at the general election in the middle of his term, thus defeating the purpose of the 1954 amendment, to permit an official to give his undivided attention to his office for at least three years. Id. at 1. The legislature proposed the "resign to run" provision to correct this result of the 1954 amendment. Id.; see also Attorney General Opinion WW-788 (1960) at 3 (citing press reports).[1]

We do not know of any judicial decision that addresses the interaction of sections 17 and 65 of article XVI, but we are aware of numerous judicial decisions and Attorney General Opinions concluding that article XVI, section 17 does not apply when an officer vacates the office pursuant to other constitutional provisions. The Texas Supreme Court determined, in Pruitt v. Glen Rose Independent School District No. 1, 84 S.W.2d 1004, 1007 (Tex. 1935), that article XVI, section 17 did not apply to an officer who has "stepped down" from office by operation of article XVI, section 40, which prohibits, with certain specified exceptions, any person from simultaneously holding "more than one civil office of emolument." See also State ex rel. Peden v. Valentine, 198 S.W. 1006, 1007 (Tex. Civ. App.—Fort Worth 1917, writ ref'd) (upon acceptance of second, incompatible office, first office is ipso facto vacated). In Lowe v. State, 201 S.W. 986 (Tex. Crim. App. 1918), the Texas Court of Criminal Appeals determined that article XVI, section 17 does not apply to an officer who is ineligible under article XVI, section 12 of the Texas Constitution to hold or exercise an office of profit or trust under this state because he or she holds or exercises an office of profit or trust under the United States. Id. at 986; see Attorney General Opinion DM-49 (1991); see also Attorney General Opinions JM-1161 (1990) (article XVI, section 17 is inapplicable when senate has refused to approve governor's appointment to office), JM-423 (1986) (same), O-3343 (1941) (same), M-151 (1967) at 4 (judge who reaches age of 75, whose "office . . . shall become vacant" pursuant to article V, section 1-a of Texas Constitution does not hold over under article XVI, section 17).

Although the cases and prior opinions of this office suggest that article XVI, section 17 generally does not apply to vacancies created by operation of the constitution, we believe that article XVI, section 65 may be distinguished from the authorities cited. Attorney General Opinion WW-1253, in reaching its conclusion that article XVI, section 17 applied to officers who automatically resigned, stated that "an officer whose resignation has been effected but whose successor has not been appointed retains the position as a 'de jure' officer." Attorney General Opinion WW-1253 (1962) at 3. This conclusion was based on the following authorities: Jones v. City of Jefferson, 1 S.W. 903 (Tex. 1886), Plains Common Consolidated School District No. 1 v. Hayhurst, 122 S.W.2d 322 (Tex. Civ. App.—Amarillo 1938, no writ), Keen v. Featherston, 69 S.W. 983 (Tex. Civ. App. 1902, writ ref'd), and Attorney General Opinions V-760, O-855 (1939) and O-761 (1939). Except for Attorney General Opinion V-760, which recites the purposes of article XVI, section 17, these authorities state that an officer whose resignation has been tendered to the proper authority and accepted continues in office until his successor is appointed and qualifies. See Jones v. City of Jefferson, 1 S.W. at 905; Plains Common Consol. Sch. Dist. No. 1 v. Hayhurst, 122 S.W.2d at 326. Attorney General Opinion H-161, addressing the automatic resignation of a justice of the peace under article XVI, section 65, states as follows in regard to article XVI, section 17:

The recognized purpose of this provision is to insure against vacancies in office and a consequent cessation of the functions of government. Section 17 provides for officers to hold over in the performance of the duties of office, even after resignation until a successor has been elected or appointed and has qualified. The officer who has resigned retains his position, in spite of his resignation, as a de jure officer.

Attorney General Opinion H-161 (1973) at 2.

Article XVI, section 65, pertains to the "automatic resignation" of officers, and Attorney General Opinions WW-1253 and H-161 construe this provision consistently with the well-established rule about resignations: that an officer holds over until his replacement is appointed and qualifies, even after his resignation is tendered and accepted. We believe the prior opinions of our office correctly relied on the express language of article XVI, section 65, and correctly concluded that persons who automatically resign an office pursuant to that provision still hold over in office until a successor is appointed and qualifies.

Other constitutional provisions creating vacancies use different, and often stronger, language than section 65. Article XVI, section 40, does not refer to a resignation, but states that "[n]o person shall hold or exercise at the same time, more than one civil office of emolument." Article XVI, section 12, states that persons holding or exercising certain federal offices shall not "be eligible" for offices of profit or trust under this state. Article XVI, section 14 states that officers who do not reside within the appropriate jurisdiction "shall vacate the office so held." Article V, section 1-a provides that when a judge reaches the age of 75, his "office . . . shall become vacant." None of these constitutional provisions incorporate the concept of resignation or the body of law related to that term.

As commentators have noted, the policy served by the "resign to run" provision, to limit the time during which a county officer may campaign for other office, does not apply to all officeholders in the state. "If it is thought generally that officeholders should forfeit their positions when they announce for other officers, the provision should apply to members of the legislature and statewide elected officials as well as those named in this section." GEORGE D. BRADEN, THE CONSTITUTION OF THE STATE OF TEXAS: AN ANNOTATED AND COMPARATIVE ANALYSIS 813 (1977); see generally Clements v. Fashing, 457 U.S. 957, 970 (1982). The limited application of the automatic resignation requirement suggests that it may be less weighty than other, more generally applicable, constitutional provisions. Moreover, the policy underlying section 65 will still be effectuated when the officer's replacement is appointed and qualifies. Under the circumstances, we believe we should give great weight to the public policy encompassed in article XVI, section 17, the preservation of the orderly processes of government. See Ex parte Sanders, 215 S.W.2d 325 (Tex. 1948). Accordingly, an officer who automatically resigns an office pursuant to article XVI, section 65 will hold over in office pursuant to article XVI, section 17 until a successor is appointed and qualifies. We affirm the conclusions of Attorney General Opinions WW-1253, C-43, H-161, and opinions relying on them.

Your third question asks whether the commissioners court may appoint the judge who has resigned pursuant to article XVI, section 65 of the constitution to the now-vacant office of county court at law judge, the same post from which the judge has resigned. This office concluded in Attorney General Opinion WW-788 that an officer who automatically resigns his office pursuant to article XVI, section 65 of the Texas Constitution is ineligible for appointment to fill the vacancy created in his office. Attorney General Opinion WW-788 (1960) at 8 (summary); see also Attorney General Opinion WW-1253 (1962) at 3-4. We believe this conclusion is sound, and we affirm it here.

We need not answer your fourth and fifth questions, which assume that the officer does not hold over after his automatic resignation. See generally Attorney General Opinion H-161. Your sixth and seventh questions focus on the procedure the county must use to fill the vacancy created by the judge's candidacy. Article XVI, section 65 of the Texas Constitution states, "[T]he vacancy . . . shall be filled pursuant to law in the same manner as other vacancies for such office are filled." Section 25.0009(a) of the Government Code requires the county commissioners court to appoint an individual to fill a vacancy in the office of judge of a statutory county court. "The appointee holds office until the next general election and until the successor is elected and has qualified." Gov't Code § 25.0009(b).

Nothing in section 25.0009, nor in any other statute of which we are aware, specifies a particular time period within which the commissioners court must appoint a new judge. Moreover, we are unaware of any statute specifically prescribing procedures a commissioners court must use to appoint an individual to the office of county court at law judge. Under the Open Meetings Act, Gov't Code ch. 551, the commissioners court may deliberate the appointment in a closed meeting, although the commissioners must vote on the appointment in a meeting open to the public. See Gov't Code §§ 551.074(a)(1), .102.

[1] Attorney General Opinion WW-788 stated that another purpose of the 1958 amendment to article XVI, section 65 of the constitution was to reduce the duration of appointments. Attorney General Opinion WW-788 (1960) at 3.

SUMMARY

Under the facts presented, the county court at law judge of Hopkins County has announced his candidacy or has "in fact become a candidate" as a matter of law for purposes of article XVI, section 65 of the Texas Constitution. Thus, pursuant to article XVI, section 65, the county judge has automatically resigned his office. However, he continues to hold over in his office under article XVI, section 17 of the Texas Constitution, until his successor is appointed and qualifies for office. Attorney General Opinions WW-1253 (1962), C-43 (1963), and H-161 (1973) are affirmed on this issue.

Attorney General Opinion WW-788 (1960), which concluded that an officer who automatically resigns his office pursuant to article XVI, section 65 of the Texas Constitution is ineligible for appointment to fill the vacancy created in his office, is affirmed.

Section 25.0009(a) of the Government Code requires the county commissioners court to appoint an individual to fill a vacancy in the office of judge of a statutory county court. Nothing in section 25.0009, nor in any other statute of which we are aware, specifies a particular time period within which the commissioners court must appoint a new judge; nor does any statute specifically prescribe the procedure a commissioners court must use to appoint an individual to the office of county court at law judge. The commissioners court must, of course, comply with the Open Meetings Act, Gov't Code ch. 551, in appointing the new county court at law judge.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General