If a Texas constable resigns by running for another office, what happens when his precinct is abolished?

TX AG Opinion GA-0550: A constable resigns by running, then his precinct is abolished. What now?

Plain-English summary

Kenneth Lee Brown served for years as constable of McLennan County Precinct 6 and also as a city council member in Moody, Texas. He was reelected constable for a four-year term starting January 1, 2005, and then in November 2005 was reelected to the city council. In 2006 the Commissioners Court redrew the county's constable precincts and abolished Precinct 6 effective August 24, 2006. The County had gotten legal advice that when Brown ran again for city council, he had constructively (automatically) resigned as constable, that he then held over in the constable's office, and that the holdover could be ended by appointing a successor, which the Commissioners Court did on October 31, 2006. The District Attorney asked the Attorney General two things: does the constitution's redistricting transition rule apply to a constable who constructively resigned but kept serving as a holdover, and if so, can a successor be appointed to serve out the rest of his term.

The opinion worked through four interlocking constitutional doctrines. First, it noted the dual-office-holding rules. The request assumed the offices of constable and Moody city council member are compatible, so the Attorney General assumed the same and did not decide that question. Second, the resign-to-run rule in article XVI, section 65 says certain officers, including constables, automatically resign when they announce or become a candidate for another office of profit or trust while more than a year remains on their current term. A city council seat is an office of profit or trust, and Brown had more than a year left as constable, so he automatically resigned as constable when he ran for reelection to the council in 2005.

Third, the holdover provision in article XVI, section 17 says all officers continue to perform their duties until their successors qualify, to prevent gaps in government. Texas courts have held that even a voluntary resignation does not free an officer from holding over, and the Attorney General has consistently applied the same rule to a constructive resignation under the resign-to-run provision. So Brown's duty to keep serving as constable did not end when he automatically resigned; he held over. Fourth, the redistricting transition rule in article V, section 18(c) says that when precinct boundaries change, each constable "in office on the effective date of the change" serves in the precinct where he resides for his term, even if the change abolishes his old precinct. Because Brown was a de jure holdover constable, he was "in office" on the order's effective date, so abolishing Precinct 6 did not end his duty; he had to serve as constable in the new precinct of his residence for the term to which he had been elected. Reading these provisions together, the Attorney General concluded the redistricting did not change Brown's status, and because Brown had been succeeded, the successor must serve the remainder of the four-year term that began January 1, 2005.

Currency note

This opinion was issued in 2007. 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.

The constitutional provisions on resign-to-run, holdover, dual office holding, and constable-precinct redistricting, and the Local Government Code provision on constable terms, may have been interpreted or amended further since 2007. Confirm current law and current case interpretations before relying on this analysis.

Who this opinion affected (as of 2007)

Constables and other resign-to-run officers: The opinion explained that automatically resigning by running for another office does not let the officer walk away; the holdover provision keeps the duty to serve until a successor qualifies, and that duty survives a redistricting that abolishes the officer's precinct.

Commissioners courts redistricting precincts: The opinion told them that abolishing a precinct does not terminate a holdover constable's duty to serve the elected term in the new precinct of residence, and that a qualified successor serves the remainder of that term.

Successor constables: The opinion held that a person who qualifies to succeed such a constable must serve the remainder of the term to which the prior constable had been elected, not a fresh full term.

Common questions

Does running for another office end a constable's duties right away?
No. Under article XVI, section 65 the constable automatically resigns when he becomes a candidate (with more than a year left on his term), but under the holdover provision he must keep performing the constable's duties until a successor qualifies.

Does abolishing the constable's precinct in redistricting end his term?
No. The Attorney General concluded that under article V, section 18(c), a constable in office on the effective date of the boundary change, including a holdover constable, must continue serving in the precinct where he resides for the term to which he was elected.

Can a successor be appointed, and how long does the successor serve?
Yes. A qualified successor ends the holdover service and must serve the remainder of the original four-year term, here the term that began January 1, 2005.

Did the Attorney General decide whether constable and city council member are compatible offices?
No. The request assumed the two offices were compatible, so the Attorney General assumed the same and did not resolve that question.

Background and statutory framework

The Texas Constitution and the common law prohibit dual office holding in certain circumstances. Article XVI, section 40 bars holding more than one office of emolument at once, and the common-law incompatibility doctrine bars holding two offices with conflicting duties, though not where neither office is subordinate to or able to interfere with the other (Tex. Const. art. XVI, § 40; De Alejandro v. Hunter, 951 S.W.2d 102, 106 (Tex. App.-Corpus Christi 1997, orig. proceeding); Turner v. Trinity Indep. Sch. Dist. Bd. of Trs., 700 S.W.2d 1, 2 (Tex. App.-Houston [14th Dist.] 1983, no writ); Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928)). The opinion assumed, as the request did, that constable and Moody city council member are compatible.

Article XVI, section 65 provides that certain officers, including constables, automatically resign when they announce or become a candidate for another office of profit or trust while more than one year remains on their term. A city council seat is an office of profit or trust, so Brown automatically resigned as constable when he ran for reelection to the council (Tex. Const. art. XVI, § 65, § 12). Article XVI, section 17, the holdover provision, requires officers to continue performing their duties until successors qualify, to prevent gaps in government, and it is mandatory; courts have held even a voluntary resignation does not end holdover service, and the Attorney General has applied the same to a constructive resignation (Tex. Const. art. XVI, § 17; Plains Common Consol. Sch. Dist. No. 1 v. Hayhurst, 122 S.W.2d 322, 326 (Tex. Civ. App.-Amarillo 1938, no writ); Delamora v. State, 128 S.W.3d 344, 356 (Tex. App.-Austin 2004, pet. ref'd); Willmann v. City of San Antonio, 123 S.W.3d 469, 481 (Tex. App.-San Antonio 2003, pet. denied); Crawford v. State, 153 S.W.3d 497, 505 (Tex. App.-Amarillo 2004, no pet.)).

Article V, section 18(a) lets the commissioners court divide the county into precincts, and section 18(c) provides that when precinct boundaries change, each constable in office on the effective date, or elected to a term beginning on or after it, serves in the precinct where he resides for his term, even if the change abolishes his old precinct. The key requirement is being "in office on the effective date," without regard to why; Brown was a de jure holdover constable and so was in office, meaning abolishing Precinct 6 did not end his duty to serve in the new precinct of his residence (Tex. Const. art. V, § 18, § 18(a), § 18(c); Tex. Loc. Gov't Code Ann. § 81.021(b) (Vernon 1999); Dunbar v. Brazoria County, 224 S.W.2d 738, 740-41 (Tex. Civ. App.-Galveston 1949, writ ref'd); Kimbrough v. Barnett, 55 S.W. 120, 122 (Tex. 1900)). Holdover after accepting a second, incompatible office would be a different matter (Pruitt v. Glen Rose Indep. Sch. Dist., 84 S.W.2d 1004, 1007 (Tex. 1935)). Construing these provisions together and giving effect to each, the Attorney General concluded redistricting did not change Brown's constructive resignation or holdover status, so Brown had to serve until a successor qualified or his term ended, and the successor serves the remainder of the term that began January 1, 2005 (Collingsworth County v. Allred, 40 S.W.2d 13, 15 (Tex. 1931)). The opinion also noted that the redistricting required federal preclearance to be effective as law (Branch v. Smith, 538 U.S. 254, 311 (2003)).

Citations

Constitution and statutes:

• Tex. Const. art. V, § 18, § 18(a), § 18(c)
• Tex. Const. art. XVI, § 40
• Tex. Const. art. XVI, § 65
• Tex. Const. art. XVI, § 17
• Tex. Const. art. XVI, § 12
• Tex. Loc. Gov't Code Ann. § 81.021(b) (Vernon 1999)

Cases:

• De Alejandro v. Hunter, 951 S.W.2d 102, 106 (Tex. App.-Corpus Christi 1997, orig. proceeding)
• Turner v. Trinity Indep. Sch. Dist. Bd. of Trs., 700 S.W.2d 1, 2 (Tex. App.-Houston [14th Dist.] 1983, no writ)
• Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928)
• Plains Common Consol. Sch. Dist. No. 1 v. Hayhurst, 122 S.W.2d 322, 326 (Tex. Civ. App.-Amarillo 1938, no writ)
• Delamora v. State, 128 S.W.3d 344, 356 (Tex. App.-Austin 2004, pet. ref'd)
• Willmann v. City of San Antonio, 123 S.W.3d 469, 481 (Tex. App.-San Antonio 2003, pet. denied)
• Crawford v. State, 153 S.W.3d 497, 505 (Tex. App.-Amarillo 2004, no pet.)
• Pruitt v. Glen Rose Indep. Sch. Dist., 84 S.W.2d 1004, 1007 (Tex. 1935)
• Dunbar v. Brazoria County, 224 S.W.2d 738, 740-41 (Tex. Civ. App.-Galveston 1949, writ ref'd)
• Kimbrough v. Barnett, 55 S.W. 120, 122 (Tex. 1900)
• Collingsworth County v. Allred, 40 S.W.2d 13, 15 (Tex. 1931)
• Branch v. Smith, 538 U.S. 254, 311 (2003)

Attorney General opinions referenced: WW-1316 (1962), GA-0468 (2006), GA-0057 (2003), JM-553 (1986), JM-395 (1985), GA-0488 (2006), H-161 (1973), JC-0318 (2000), DM-377 (1996), WW-1253 (1962), JC-0462 (2002), GA-0015 (2003).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0550
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2007/ga0550.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain - the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

June 7, 2007

The Honorable John W. Segrest
McLennan County Criminal District Attorney
219 North 6th Street, Suite 200
Waco, Texas 76701

Opinion No. GA-0550

Re: Effect of constable's constructive resignation prior to the county's redistricting that abolished the constable's precinct (RQ-0554-GA)

Dear Mr. Segrest:

You ask about the effect of a constable's constructive resignation prior to the county's redistricting that abolished the constable's precinct.[1] You relate that McLennan County previously was divided into eight justice of the peace and constable precincts pursuant to article V, section 18 of the Texas Constitution. See Request Letter, supra note 1, at 1. Article V, section 18 governs constable precincts generally and provides for transition following redistricting, as will be discussed in more detail below. See TEX. CONST. art. V, § 18.

Kenneth Lee Brown has served as both constable of McLennan County Precinct 6 and as a city council member of Moody, Texas for several years.[2] He was reelected as constable of Precinct 6 for a four-year term beginning January 1, 2005. See Segrest Letter of Aug. 31, 2006, supra note 2, at 2. In November of that year he was reelected to the city council and began serving a new term in January 2006. See id. In 2006, the Commissioners Court redistricted McLennan County's constable precincts, abolishing Precinct 6 with a stated effective date of August 24, 2006. See Request Letter, supra note 1, at 1.[3] The Commissioners Court received legal advice that (1) while simultaneous service as constable and city council member is not unlawful per se, when Brown declared candidacy for reelection to the city council he constructively resigned as constable; (2) following Brown's constructive resignation, he held over in office as constable; and (3) Brown's holdover service could be terminated by appointing a successor constable. See Segrest Letter of Aug. 31, 2006, supra note 2, at 2-6. On October 31, 2006, the Commissioners Court selected a constable to succeed Brown. See Request Letter, supra note 1, at 2. In light of this sequence of events, you raise the following issues:

1. Whether article V, section 18(c) of the constitution, which provides for a constable's continuing service following precinct redistricting, applies to a constable who has constructively resigned under article XVI, section 65 but continues to serve as a holdover officer under article XVI, section 17; and

2. If so, whether a successor to such a constable may be appointed to serve the remainder of the constable's term.

See id. at 2-3. Your questions require consideration of the interrelation of (1) the dual office-holding provisions of article XVI, section 40 of the Texas Constitution and the concomitant common-law incompatibility doctrine; (2) the resign-to-run provisions of article XVI, section 65; (3) the office-holdover provisions of article XVI, section 17; and (4) the transitional redistricting provisions of article V, section 18.

I. Dual Office Holding and Common-Law Incompatibility

A preliminary issue is whether a person may hold the offices of constable and city council member simultaneously. The Texas Constitution and the common law both prohibit dual office holding in certain circumstances. Article XVI, section 40 of the constitution does not allow a person to hold more than one office of emolument at the same time. See TEX. CONST. art. XVI, § 40; De Alejandro v. Hunter, 951 S.W.2d 102, 106 (Tex. App.-Corpus Christi 1997, orig. proceeding) (a person who accepts a second office of emolument automatically resigns the first office). The common-law doctrine of incompatibility prohibits a person from holding two offices that impose inconsistent or conflicting duties. See Turner v. Trinity Indep. Sch. Dist. Bd. of Trs., 700 S.W.2d 1, 2 (Tex. App.-Houston [14th Dist.] 1983, no writ).[4] Dual office holding does not offend this aspect of the common law, however, when "neither office is accountable to, under the dominion of, or subordinate to the other, and neither has any right to interfere with the other in the performance of any official duty." Id.

You have not asked whether the offices of county constable and city council member of Moody, Texas are compatible under the constitution and the common law, nor have you provided information about the offices that would help resolve the issue. Rather, your questions assume that the offices of county constable and Moody, Texas city council member are compatible. See Request Letter, supra note 1, at 2-3; see also Segrest Letter of Aug. 31, 2006, supra note 2, at 3 (opining that the offices are compatible); Tex. Att'y Gen. Op. No. WW-1316 (1962) at 2-3 (concluding that the offices of constable and uncompensated alderman are not incompatible under the constitution or the common law). Thus, we likewise will assume that the offices here are compatible as we address your questions. However, as we have noted on another occasion, even when two offices are compatible and may be held by one person simultaneously, the constitution's resign-to-run provisions may complicate dual office holding in the long term, as we presently discuss. See Tex. Att'y Gen. Op. No. GA-0468 (2006) at 3.

II. Resign to Run

Article XVI, section 65 of the constitution specifies circumstances that constitute a constructive resignation when an officeholder runs for another office:

If [certain district, county, and precinct officers, including constables] shall announce their candidacy, or shall in fact become a candidate, . . . 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.

TEX. CONST. art. XVI, § 65 (emphasis added). Although no court has addressed the question, this office has determined that a city council member occupies an office of profit or trust. See Tex. Att'y Gen. Op. Nos. GA-0057 (2003) at 3 (advising that city council member holds an "office of profit or trust" under Texas Constitution article XVI, § 12), JM-553 (1986) at 2 (advising that a home-rule city council member holds an office of trust under Texas Constitution article XVI, section 65), JM-395 (1985) at 4 (advising that general-law city council member holds an office of trust under Texas Constitution article XVI, section 65). Brown had more than one year left in his unexpired term as constable when he successfully ran for reelection as city council member, an office of profit or trust. Consequently, Brown automatically resigned as constable when he became a candidate for city council for the November 2005 election.

III. Office Holdover

Next we consider whether Brown's constructive resignation terminated his duty to continue in office as constable. Article XVI, section 17 of the constitution, known as the "holdover provision," states: "All officers within this State shall continue to perform the duties of their offices until their successors shall be duly qualified." TEX. CONST. art. XVI, § 17. The purpose of this provision "is to prevent vacancies in office and a consequent cessation of the functions of government." Plains Common Consol. Sch. Dist. No. 1 v. Hayhurst, 122 S.W.2d 322, 326 (Tex. Civ. App.-Amarillo 1938, no writ) (citation omitted). Where it applies, the holdover provision is mandatory. See id.[5] Accordingly, an officer's authority and responsibilities continue undiminished during such holdover service. An officer who holds over pursuant to the constitution is a de jure officer possessing all the authority of the office, as well as the right to continue receiving compensation. See Delamora v. State, 128 S.W.3d 344, 356 (Tex. App.-Austin 2004, pet. ref'd).

Not even an officer's voluntary resignation will terminate the officer's duty to serve as a holdover officer under article XVI, section 17. See Willmann v. City of San Antonio, 123 S.W.3d 469, 481 (Tex. App.-San Antonio 2003, pet. denied) (citing Tex. Att'y Gen. Op. No. H-161 (1973) at 2); Crawford v. State, 153 S.W.3d 497, 505 (Tex. App.-Amarillo 2004, no pet.) (holding that constable who resigned continued as a holdover officer even though commissioners court failed to select a successor and was unlikely to select a successor). "Under the Constitution an officer cannot arbitrarily divest himself of the obligation and authority to perform the duties of his office until his successor qualifies; and even though he resigns and his resignation is accepted, the law operates to continue him in office until his successor qualifies." Hayhurst, 122 S.W.2d at 326-27 (quoting 34 TEX. JUR. 370-71 (1934)).

While the courts have established that an officer who tenders a resignation continues to serve as a holdover officer, no court has addressed whether the same principles apply to an officer whose resignation is constructive under article XVI, section 65. However, the policy animating article XVI, section 17, continuity in the functioning of government, applies whether a qualified officer's resignation is actual or is constructive under article XVI, section 65. Accordingly, this office has consistently opined that article XVI, section 17 applies to hold over an officer who constructively resigns under article XVI, section 65 by running for another office. See Tex. Att'y Gen. Op. Nos. JC-0318 (2000) at 5, DM-377 (1996) at 5, H-161 (1973) at 2, WW-1253 (1962) at 3. Here, Brown's duty to serve as constable did not end when he automatically resigned by running for reelection to the city council. Next we consider whether Brown's duty to serve as a holdover officer continued after the Commissioners Court abolished Precinct 6.

IV. Transition Following Redistricting of Constable Precincts

Article V, section 18(a) of the constitution provides for the commissioners court to divide the county into precincts. See TEX. CONST. art. V, § 18(a). Generally, each precinct is to be served by a constable who "shall hold his office for four years and until his successor shall be elected and qualified." Id. Section 18(c) provides for transition in the event a commissioners court changes precinct boundaries:

When the boundaries of justice of the peace and constable precincts are changed, each Justice and Constable in office on the effective date of the change, or elected to a term of office beginning on or after the effective date of the change, shall serve in the precinct in which the person resides for the term to which each was elected or appointed, even though the change in boundaries places the person's residence outside the precinct for which he was elected or appointed, abolishes the precinct for which he was elected or appointed, or temporarily results in extra Justices or Constables serving in a precinct.

TEX. CONST. art. V, § 18(c) (emphasis added). Under subsection (c), an order abolishing a precinct does not terminate the constable's duty to serve the current term of office for which the constable was elected or appointed. See id. Such a constable continues to hold a public office, which is

the right, authority, and duty created and conferred by law, by which, for a given period, either fixed by law, or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public.

Dunbar v. Brazoria County, 224 S.W.2d 738, 740-41 (Tex. Civ. App.-Galveston 1949, writ ref'd) (quoting Kimbrough v. Barnett, 55 S.W. 120, 122 (Tex. 1900)). Under article V, section 18(c), the constable's duties of office do not change after the constable's prior precinct has been abolished by redistricting. See Tex. Att'y Gen. Op. No. JC-0462 (2002) at 3 (advising that no "law changes a constable's duties in a precinct where two constables are temporarily serving because of a boundary change"). Nor does such redistricting change the constable's term of office. See TEX. LOC. GOV'T CODE ANN. § 81.021(b) (Vernon 1999). The only change expressed in article V, section 18(c) is the precinct in which the constable shall serve.

Article V, section 18(c)'s key requirement is that the constable must be "in office on the effective date" of the change in precinct boundaries. See TEX. CONST. art. V, § 18(c). But that section does not qualify its directive based on the particular circumstance that cause a person to be "in office" on the effective date. Brown was a de jure constable on the effective date of the Commissioners Court order changing precinct boundaries, albeit by virtue of his holdover status. As a de jure constable, Brown was "in office" on the order's effective date. See Hayhurst, 122 S.W.2d at 326-27 ("the law operates to continue [a holdover officer] in office until his successor qualifies"). Therefore, under article V, § 18(c), Brown had a duty to serve as a constable in the newly drawn precinct in which he resided.

We conclude that abolishing precinct 6 did not terminate Brown's duty under article V, section 18(c) of the constitution to serve as a constable in the new precinct in which he resided for the term to which he had been elected. Different "provisions of a Constitution which relate to the same subject-matter should be construed together and considered in the light of each other," and effect must be given to each part. Collingsworth County v. Allred, 40 S.W.2d 13, 15 (Tex. 1931). To give effect to article XVI, section 65 and article XVI, section 17, we must conclude that redistricting did not change the import of Brown's constructive resignation or his status as a holdover officer. Accordingly, upon redistricting Brown had the duty to serve as constable in his precinct of residence until his successor qualified or until the end of the term for which Brown had been elected, whichever might occur first. And because Brown was succeeded as constable, the successor has the duty to serve the remainder of Brown's four-year term that began January 1, 2005.

SUMMARY

A person who constructively resigns the office of constable by declaring candidacy for another office of profit or trust holds over in office as constable until a successor qualifies. A constable who is in office as a holdover officer on the effective date of a commissioners court order that changes precinct boundaries has the duty to serve as constable in the precinct of the constable's residence until his successor qualifies or until the end of the term for which the constable was elected or appointed. A person who qualifies to succeed such a constable must serve the remainder of the holdover constable's term to which he was elected.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

KENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee

Footnotes

[1] See Letter from Honorable John W. Segrest, McLennan County Criminal District Attorney, to Honorable Greg Abbott, Attorney General of Texas, at 2-3 (Nov. 17, 2006) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

[2] See Letter attached to Request Letter from Honorable John W. Segrest, McLennan County Criminal District Attorney, to Honorable Jim Lewis, McLennan County Judge, at 2 (Aug. 31, 2006) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Segrest Letter of Aug. 31, 2006].

[3] The U.S. Department of Justice approved the redistricting on October 18, 2006. See Letter attached to Request Letter from John Tanner, Chief, Voting Section, U.S. Department of Justice, to David M. Guinn and Michael D. Morrison, Guinn and Morrison (Oct. 18, 2006) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us). "Preclearance is the final step in the process of redistricting. If the apportionment plan is not precleared, it is not 'effective as law,' and cannot be implemented." Branch v. Smith, 538 U.S. 254, 311 (2003) (O'Connor, J., concurring in part and dissenting in part).

[4] The common-law doctrine of incompatibility also prohibits a person "from appointing himself to another public position, or from holding both an office and an employment subordinate to the office." Tex. Att'y Gen. Op. No. GA-0488 (2006) at 2; see also Ehlinger v. Clark, 8 S.W.2d 666, 674 (Tex. 1928). Because neither a constable nor a city council member appoints or employs the other, these aspects of common-law incompatibility are not at issue here.

[5] Article XVI, section 17 of the constitution does not authorize an officer to hold over in one office after accepting and qualifying for a second office if the offices are incompatible under the constitution or the common law. See Pruitt v. Glen Rose Indep. Sch. Dist., 84 S.W.2d 1004, 1007 (Tex. 1935) (concerning holdover and dual officeholder provisions of the constitution); Tex. Att'y Gen. Op. No. GA-0015 (2003) at 5 (concerning holdover and the common-law incompatibility doctrine). As noted in section I, supra, we assume that the offices of constable and city council member of Moody, Texas are not incompatible.