Does a Texas legislator have to resign to run for Governor?

TX AG Opinion GA-0698: Must a Texas legislator resign to run for Governor?

Plain-English summary

A House committee chair, relaying a question from a colleague, asked whether a member of the Texas House of Representatives must immediately resign after announcing a candidacy for Governor during the first year of a two-year term. The same question extended to a legislator who only announces the formation of an exploratory committee to consider running.

The Attorney General walked through the Texas Constitution's resign-to-run rules and found none that reached this situation. Article III, section 19 makes a person holding a "lucrative office" in state, federal, or foreign government ineligible for the Legislature during the term for which that person was elected or appointed. Article XVI, section 65(b) forces certain district and county officials to resign upon announcing candidacy for another office. Neither provision, and no statute, prohibits a sitting legislator from running for Governor while keeping the House seat.

The opinion leaned on the settled presumption that people are eligible to run for and hold office, citing the Texas Supreme Court's instruction that courts decide in favor of eligibility whenever possible. With no constitutional or statutory bar in sight, a legislator is not legally required to resign upon announcing a run for Governor. Because no Texas statute even addresses exploratory committees, and because announcing an actual candidacy does not trigger resignation, the lesser step of merely exploring a candidacy does not trigger it either.

Currency note

This opinion was issued in 2009. 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.

Resign-to-run rules in the Texas Constitution and Election Code have been amended over the years. Confirm the current text of article III, section 19 and article XVI, section 65 before relying on this analysis.

Who this opinion affected (as of 2009)

State legislators: The opinion concluded that a House member could announce a run for Governor, or form an exploratory committee, during the first year of a two-year term without being required to resign.

Election administrators and the public: The opinion explained that the resign-to-run provisions in article XVI, section 65 reached certain district and county officials, not a legislator running for Governor.

Common questions

Did a Texas House member have to quit to run for Governor?
No. The opinion found no constitutional or statutory provision requiring resignation upon announcing that candidacy.

What about just forming an exploratory committee?
The opinion said no Texas statute addresses exploratory committees, and since announcing an actual candidacy did not require resignation, exploring one did not either.

Which officials does the resign-to-run rule cover?
The opinion pointed to article XVI, section 65(b), which requires certain district and county officials to resign upon announcing candidacy for another office, and to article III, section 19's "lucrative office" bar, neither of which reached this legislator.

Background and statutory framework

Several provisions of the Texas Constitution restrict officials from seeking one elected office while serving in another. Article III, section 19 makes a person holding a "lucrative office" in state, federal, or foreign government ineligible for the Legislature during the term for which the person was elected or appointed (Tex. Const. art. III, § 19). Article XVI, section 65(b) requires certain district and county officials to resign upon announcing candidacy for another office (Tex. Const. art. XVI, § 65(b)). Texas law otherwise presumes individuals are eligible to run for and hold office, and courts decide in favor of eligibility whenever possible (Wentworth v. Meyer, 839 S.W.2d 766, 768 (Tex. 1992)). Finding no provision restricting a state legislator from running for Governor, the opinion concluded that resignation was not required, and that the same held for forming an exploratory committee.

Citations

Statutes:

• Tex. Const. art. III, § 19
• Tex. Const. art. XVI, § 65(b)

Cases:

• Wentworth v. Meyer, 839 S.W.2d 766, 768 (Tex. 1992)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0698
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2009/ga0698.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

March 4, 2009

The Honorable Rob Eissler
Chair, Committee on Public Education
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910

Opinion No. GA-0698

Re: Consequences attending a legislator's announcement of his candidacy for Governor during the first year of a two-year term (RQ-0736-GA)

Dear Representative Eissler:

You have requested that we answer the questions submitted by your colleague, Representative Leo Berman, former chair of the Committee on Elections. We were asked whether a legislator serving in the Texas House of Representatives must immediately resign that position after announcing his candidacy for Governor during the first year of a two-year term.[1] Multiple provisions within the Texas Constitution restrict certain officials from running for one elected office while serving a term in another office. For example, no person holding a "lucrative office" in state or federal government or in a foreign government is eligible for the Legislature during the term for which that person is elected or appointed. TEX. CONST. art. III, § 19. Similarly, certain district and county officials, upon announcing their candidacy for any other office, must resign the current office held. TEX. CONST. art. XVI, § 65(b). However, we find no constitutional or statutory authority that prohibits a legislator from running for Governor while continuing to serve as a legislator.

Texas law presumes that individuals are eligible to run for and hold office. See Wentworth v. Meyer, 839 S.W.2d 766, 768 (Tex. 1992) ("[W]e are bound to decide in favor of eligibility whenever possible . . . ."). Given the lack of constitutional and statutory provisions restricting a state legislator from running for Governor, a legislator is not legally required to resign from that position upon announcing his or her candidacy for Governor.

We were also asked about the implications of a legislator announcing "the formation of an exploratory committee to consider a candidacy for [G]overnor during the first year of the two-year term." See Request Letter at 1. No Texas statutes speak to the formation of an exploratory committee or otherwise address consequences that may result from the formation of one. However, because we conclude that a legislator is not required to resign from office upon announcing his or her candidacy for Governor, a legislator is likewise not required to resign while exploring a possible candidacy for Governor.

[Footnote 1: Request Letter at 1 (available at http://www.texasattorneygeneral.gov).]

SUMMARY

A legislator serving in the Texas House of Representatives who announces his or her candidacy for Governor during the first year of a two-year term is not required to resign from service in the House of Representatives. Because a legislator is not required to resign from office upon announcing his or her candidacy for Governor, a legislator is likewise not required to resign while exploring a possible candidacy for Governor.

ANDREW WEBER
First Assistant Attorney General

JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee