Does a Texas city official have to resign to run for a political party precinct chair?

Plain-English summary

A Hays County prosecutor asked about two San Marcos city council members. Each had more than a year left in his council term, and each filed as a candidate for a political party's precinct chair in Hays County. Someone had suggested that by doing so they automatically forfeited their council seats under the "resign-to-run" provision of article XI, section 11 of the Texas Constitution. The Attorney General concluded that was not the case.

The resign-to-run rule works like this. Article XI, section 11 says that if a home-rule city gives its officers terms longer than two years, those officers become subject to the automatic-resignation rule in article XVI, section 65. That rule causes certain officers to resign automatically if, with more than a year left in their term, they announce for or become a candidate for another "office of profit or trust." The whole mechanism therefore turns on whether the position the official is seeking is itself a public office.

A precinct chair of a political party is not a public office. The test for a public officer in Texas is whether the person exercises a sovereign function of government, largely independent of others' control, and a political party is not a governmental agency. Texas courts have long held that party officers, such as members of a party executive committee, are not public officers even when the positions are created by statute. So filing for precinct chair did not trigger article XI, section 11 or article XVI, section 65, and the council members kept their seats. The opinion added a cleanup point: two 1970s opinions (H-698 and H-876) had said municipal officials could not serve as party officers, but those were superseded when the Legislature dropped that prohibition from what is now section 161.005 of the Election Code.

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

The requesting prosecutor and the San Marcos council members (what the opinion held): The opinion told them that running for party precinct chair did not trigger the automatic-resignation provisions, so the two council members had not forfeited their seats.

Municipal officers eyeing party posts (what the opinion held): The opinion held that a party precinct chair is not a public office for resign-to-run purposes, and that the old bar on municipal officers serving as party officers had been removed from the Election Code.

Common questions

If a Texas city council member runs for party precinct chair, do they lose their council seat?
No. The opinion concluded that because a precinct chair is not a public office, becoming a candidate for it does not trigger the automatic-resignation provisions of article XI, section 11 or article XVI, section 65.

Why isn't a party precinct chair a "public office"?
Because a political party is not a state or governmental agency. The opinion noted Texas courts have long held that officers of a political party are not public or governmental officers, even when the positions are provided for by statute.

When does the resign-to-run rule actually apply to a city official?
When an officer with more than a year left in a term (in a home-rule city with terms longer than two years) announces for or becomes a candidate for another office of profit or trust, meaning another public office.

Can a city official even serve as a party precinct chair?
The opinion explained that the older opinions saying municipal officers could not be local party officers had been superseded by statute; the current section 161.005 bars a precinct or county chair only from being a candidate for or holder of a federal, state, or county elective office.

Background and statutory framework

Article XI, section 11(a) provides that if a home-rule city sets terms longer than two years, its officers are subject to article XVI, section 65(b)'s automatic-resignation rule. Tex. Const. art. XI, § 11(a). Section 65(b) causes the automatic resignation of officers who announce or become a candidate, with more than a year left in their term, for any office of profit or trust other than the one then held. Tex. Const. art. XVI, § 65(b). An "office of profit" is a lucrative office, one for which the holder receives any compensation. Dawkins v. Meyer, 825 S.W.2d 444, 446-47 (Tex. 1992); Willis v. Potts, 377 S.W.2d 622, 626-27 (Tex. 1964). So the rule applies only if the position sought is a public office.

The test for a public officer is whether the person exercises a sovereign function of government for the benefit of the public, largely independent of the control of others. Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955). A political party is not a state or governmental agency. Carter v. Tomlinson, 227 S.W.2d 795, 799 (Tex. 1950). Officers of a political party, such as members of a party executive committee, are not public or governmental officers even when provided for by statute. Wall v. Currie, 213 S.W.2d 816, 819 (Tex. 1948); Martinez v. Democratic Comm. for Responsible Gov't, 521 S.W.2d 284, 285 (Tex. Civ. App.-Eastland 1975, writ ref'd n.r.e.). The opinion noted this is the majority view among American jurisdictions. Moore v. Panish, 652 P.2d 32 (Cal. 1982); State v. Hoskins, 978 S.W.2d 779 (Mo. Ct. App. 1998); Opinion of the Justices, 197 N.E.2d 691 (Mass. 1964); Lanza v. DeMarino, 388 A.2d 1294 (N.J. Super. Ct. App. Div. 1978); State v. Bivens, 149 S.E.2d 284 (W. Va. 1966).

On the superseded opinions, former article 3.04 of the Election Code once barred a candidate for public office or a holder of an office of profit or trust from acting as a party committee member, and opinions H-698 and H-876 read it to exclude municipal officials. The current statute, section 161.005(a)(2), instead bars a candidate for or precinct chair only from being a candidate for or holder of a federal, state, or county elective office. Tex. Elec. Code Ann. § 161.005(a)(2) (Vernon Supp. 2002).

Citations

Statutes and constitutional provisions:

• Tex. Const. art. XI, § 11(a)
• Tex. Const. art. XVI, § 65(b)
• Tex. Elec. Code Ann. § 161.005(a)(2) (Vernon Supp. 2002)

Cases:

• Dawkins v. Meyer, 825 S.W.2d 444, 446-47 (Tex. 1992)
• Willis v. Potts, 377 S.W.2d 622, 626-27 (Tex. 1964)
• Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955)
• Carter v. Tomlinson, 227 S.W.2d 795, 799 (Tex. 1950)
• Wall v. Currie, 213 S.W.2d 816, 819 (Tex. 1948)
• Martinez v. Democratic Comm. for Responsible Gov't, 521 S.W.2d 284, 285 (Tex. Civ. App.-Eastland 1975, writ ref'd n.r.e.)
• Moore v. Panish, 652 P.2d 32 (Cal. 1982)
• State v. Hoskins, 978 S.W.2d 779 (Mo. Ct. App. 1998)
• Opinion of the Justices, 197 N.E.2d 691 (Mass. 1964)
• Lanza v. DeMarino, 388 A.2d 1294 (N.J. Super. Ct. App. Div. 1978)
• State v. Bivens, 149 S.E.2d 284 (W. Va. 1966)

Legislation referenced: Act of May 24, 1963, 58th Leg., R.S., ch. 424, § 9, 1963 Tex. Gen. Laws 1017, 1027 (former article 3.04 of the Texas Election Code); Act of May 23, 1977, 65th Leg., R.S., ch. 363, § 2, 1977 Tex. Gen. Laws 966. Prior Attorney General opinions referenced: H-698 (1975), H-876 (1976), JC-0318 (2000); Ariz. Att'y Gen. Op. No. 49 (1989).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0562
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2002/jc0562.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS
JOHN CORNYN

October 11, 2002

The Honorable Michael S. Wenk Opinion No. JC-0562
Hays County Criminal District Attorney
Hays County Justice Center Re: Whether a city official who becomes a
110 East Martin Luther King candidate for the office of precinct chair of a
San Marcos, Texas 78666 political party is subject to the "resign-to-run"
provision of article XI, section 11 of the Texas
Constitution (RQ-0537-JC)

Dear Mr. Wenk:

You ask whether the "resign-to-run" provision of article XI, section 11 of the Texas Constitution is triggered when an elected city official with more than one year remaining in his or her term becomes a candidate for the office of precinct chair of a political party. Because the precinct chair of a political party is not a public office, article XI, section 11 does not apply in such a situation.

As we understand the facts which lead to your request, two members of the City Council of San Marcos, Texas, each of whom had more than a year left in office, filed as candidates for election to separate party precinct chair positions in Hays County.[1] It has apparently been suggested that in so doing, they forfeited their council positions pursuant to article XI, section 11 of the Texas Constitution. This is not the case.

As a preliminary matter, we note that Texas Attorney General Opinions H-698 (1975) and H-876 (1976), which hold that municipal public officials such as these council members may not serve on the executive committees of political parties have, as you suggest, been implicitly overruled by a change in the law. See Tex. Att'y Gen. Op. Nos. H-698 (1975), H-876 (1976). Those opinions interpreted a predecessor statute to what is now section 161.005 of the Election Code, former article 3.04 of the Code, which read in relevant part:

No one shall act as chairman or as member of any district, county, or city executive committee of a political party who . . . is a candidate for public office, or who holds any office of profit or trust, either under the United States or this state, or any city or town in this state.

Act of May 24, 1963, 58th Leg., R.S., ch. 424, § 9, 1963 Tex. Gen. Laws 1017, 1027 (former article 3.04, section 3 of the Texas Election Code) (emphasis added). The prohibition on municipal officers acting as party officials, however, does not appear in the current version of the statute, section 161.005 of the Election Code, which reads in relevant part:

(a) To be eligible to be a candidate for or to serve as a county or precinct chair of a political party, a person must:

(2) not be a candidate for nomination or election to, or be the holder of, an elective office of the federal, state, or county government.

TEX. ELEC. CODE ANN. § 161.005(a)(2) (Vernon Supp. 2002) (emphasis added). To the extent, therefore, that Attorney General Opinions H-698 and H-876 assert that municipal officers may not be local officers of political parties, those opinions have been superceded by statute. See Act of May 23, 1977, 65th Leg., R.S., ch. 363, § 2, 1977 Tex. Gen. Laws 966.

Article XI, section 11 of the Texas Constitution, with which you are principally concerned, requires that, should a home-rule city provide by charter or charter amendment that its officers serve for longer than two years, "such officers, elective or appointive, are subject to Section 65(b), Article XVI, of this constitution, providing for automatic resignation in certain circumstances." TEX. CONST. art. XI, § 11(a). Article XVI, section 65(b), to which article XI, section 11 makes reference, provides for the automatic resignation of certain officers who "announce their candidacy, or 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" if more than one year remains in their term of office. TEX. CONST. art. XVI, § 65(b). "As a general matter, for purposes of the automatic resignation provisions of article XI, section 11 and article XVI, section 65, the term 'office of trust' is interchangeable with the term 'office.'" Tex. Att'y Gen. Op. No. JC-0318 (2000) at 3 (citation omitted). "Courts equate the term 'office of profit' with the term 'lucrative office,' and have concluded that an office is lucrative if the officeholder receives any compensation, no matter how small." Id. (citing Dawkins v. Meyer, 825 S.W.2d 444, 446-47 (Tex. 1992) and Willis v. Potts, 377 S.W.2d 622, 626-27 (Tex. 1964)). "In other words, a person who holds an office of profit holds an office and receives some compensation for doing so." Id. Accordingly, the answer to the question of whether the strictures of article XI, section 11 apply in the situation about which you ask depends upon whether or not the chair of the precinct committee of a political party is a public office.

The test in Texas law for whether one is an officer is whether one exercises "any sovereign function of the government . . . for the benefit of the public largely independent of the control of others." Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955). But under Texas law a political party is not a state or governmental agency. See Carter v. Tomlinson, 227 S.W.2d 795, 799 (Tex. 1950). Accordingly, it is well-settled in Texas that "officers of a political party, such as members of a party executive committee, are not public or governmental officers, even when provided for by statutory law." Wall v. Currie, 213 S.W.2d 816, 819 (Tex. 1948) (emphasis added); see also Carter, 227 S.W.2d at 799; Martinez v. Democratic Comm. for Responsible Gov't, 521 S.W.2d 284, 285 (Tex. Civ. App.-Eastland 1975, writ ref'd n.r.e.). This rule is the majority view among American jurisdictions. See, e.g., Moore v. Panish, 652 P.2d 32 (Cal. 1982); State v. Hoskins, 978 S.W.2d 779 (Mo. Ct. App. 1998); Opinion of the Justices, 197 N.E.2d 691 (Mass. 1964); Lanza v. DeMarino, 388 A.2d 1294 (N.J. Super. Ct. App. Div. 1978); State v. Bivens, 149 S.E.2d 284 (W. Va. 1966); Ariz. Att'y Gen. Op. No. 49 (1989).

Given then that a position within a political party is not a public office, announcing one's candidacy for or actually becoming a candidate for such a position does not trigger the "resign-to-run" provisions of article XI, section 11 or article XVI, section 65 of the Texas Constitution.

SUMMARY

The precinct chair of a political party is not a public office, and accordingly a municipal officer who has more than one year left in office and becomes a candidate for the precinct chair position has not triggered the automatic resignation provision of article XI, section 11 of the Texas Constitution. Attorney General Opinions H-698 (1975) and H-876 (1976) have been superceded by statute to the extent that they held that municipal officers could not be local officers of political parties.

JOHN CORNYN
Attorney General of Texas

HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Michael S. Wenk, Hays County Criminal District Attorney, to Honorable John Cornyn, Texas Attorney General (Apr. 17, 2002) (on file with Opinion Committee).