Did a county commissioner automatically resign by applying for election as a water-district director even though he was legally ineligible for that office?
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This page answers the general question as of 1984. Ezel answers yours: what it means for your facts, under current Texas law, with citations.
Texas AG Opinion JM-132: Resign-to-Run and an Ineligible Candidate
Plain-English summary
JM-132 concluded that a county commissioner with more than one year left in his term automatically vacated that office by applying through a political party to run for water-improvement-district director, even though he was legally ineligible for the water-district office.
"It is our opinion that the commissioner has vacated his county position, pursuant to article XVI, section 65 of the Texas Constitution, regardless of his ineligibility to hold the office for which he has filed."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0132.pdf
The official landing page marks the opinion as later modified by JC-0249.
"Modified by JC0249"
Source: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0132
Subsequent treatment
JC-0249 clarified the distinction between announcing candidacy and becoming a candidate in fact. It said an officer becomes a candidate by applying for a place on the ballot, and that eligibility or actual placement on the ballot does not matter.
"Thus, an officer 'in fact becomes a candidate' by the act of applying for a place on the ballot; it is not relevant to article XVI, section 65 whether the officer is eligible to hold the second office or whether his or her name is actually placed on the ballot."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2%30%30%30/jc0249.pdf
JC-0249 modified JM-132 only to the extent its reasoning was inconsistent with that analysis.
"Attorney General Opinion JM-132 (1984) and Letter Opinion 95-071 are modified to the extent their reasoning is inconsistent with this analysis."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2%30%30%30/jc0249.pdf
It also held that merely seeking a political party executive committee's nomination did not itself amount to announcing or becoming a candidate in a general, special, or primary election.
"A person who merely seeks a political party's executive committee's nomination to be the party's candidate for a new office in a general election does not announce his or her candidacy or become a candidate in fact in a general, special, or primary election within the meaning of article XVI, section 65 of the Texas Constitution."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2%30%30%30/jc0249.pdf
Currency note
This opinion was issued in 1984 and was later modified. Treat it as historical context and read it together with JC-0249. Subsequent constitutional interpretation, statutes, cases, or later AG opinions may have further changed the analysis.
Common questions
What facts did JM-132 assume?
It assumed the county commissioner was a land developer and therefore ineligible to serve on the water district's governing body under Water Code section 50.026.
"You have stated, and we will assume, that the commissioner at issue is a land developer and is ineligible for this position under section 50.026 of the Water Code, which bars land developers from membership on the governing body of a water district."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0132.pdf
What did article XVI, section 65 provide?
For covered county officials with more than one year remaining, announcing or becoming a candidate for another state or federal office of profit or trust automatically resigned the current office.
"[I]f any of the officers named herein 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."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0132.pdf
Was water-district director an office of trust?
Yes.
"The position of water district board director is unquestionably an 'office of trust' under section 65."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0132.pdf
Did the candidate's ineligibility prevent resignation?
JM-132 said no. Filing for the other office triggered the constitutional provision even when a separate law made the candidate ineligible to hold it.
"It is irrelevant that the office holder announcing his candidacy for another office is ineligible on other grounds to assume the position for which he has announced."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0132.pdf
What did the opinion say about a mere announcement?
It read the constitutional text to make an announcement alone sufficient, citing an earlier opinion involving a press release.
"Under the plain language of article XVI, section 65, one's mere announcement for another office constitutes an automatic resignation."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0132.pdf
JC-0249 later separated the concepts more carefully and focused “become a candidate” on applying for a place on the ballot.
What office did the commissioner vacate?
The county commissioner office.
"Therefore, a vacancy in the office of county commissioner presently exists."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0132.pdf
Background and legal framework
The resign-to-run language had been approved by Texas voters in 1958, and the United States Supreme Court had rejected an equal-protection challenge to section 65.
"A pertinent portion of article XVI, section 65 was approved by the voters in 1958."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0132.pdf"Section 65 does not violate the equal protection clause of the federal Constitution."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0132.pdf
Earlier authorities had applied automatic resignation when a justice of the peace sought a water-district directorship and when a county commissioner sought a school-board position.
"Section 65 has also been construed to effect the automatic resignation of a county commissioner who seeks election to a school board with more than one year remaining in his term."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0132.pdf
Holding
"A county commissioner who files an application to place his name on the ballot in an election for the directorship of a water district automatically vacates his office if more than one year remains in his term, even though he is ineligible for the office of water district director."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0132.pdf
Source
- Landing page and subsequent treatment: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0132
- Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0132.pdf
- Later opinion PDF: JC-0249 official PDF
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.
The Attorney General of Texas
JIM MATTOX
Attorney General
March 6, 1984
Honorable Patrick J. Ridley
Bell County Attorney
P. O. Box 474
Belton, Texas 76513
Opinion No. JM-132
Re: Automatic resignation of county commissioner from office by filing for candidacy for another office
Dear Mr. Ridley:
You have asked whether, by reason of article XVI, section 65 of the Texas Constitution, a county commissioner with more than one year of his term remaining, has automatically vacated his office by applying with a political party to file for election to the board of directors of a water improvement district, an office for which he was ineligible by reason of special circumstances. You have stated, and we will assume, that the commissioner at issue is a land developer and is ineligible for this position under section 50.026 of the Water Code, which bars land developers from membership on the governing body of a water district. It is our opinion that the commissioner has vacated his county position, pursuant to article XVI, section 65 of the Texas Constitution, regardless of his ineligibility to hold the office for which he has filed.
A pertinent portion of article XVI, section 65 was approved by the voters in 1958:
Provided, however, if any of the officers named herein [County officials] 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.
Section 65 does not violate the equal protection clause of the federal Constitution. Clements v. Fashing, 102 S. Ct. 2836 (1982). A comparable provision applies to municipalities. Cf. Tex. Const. art. XI, §11.
The position of water district board director is unquestionably an "office of trust" under section 65. In an opinion based upon similar facts, this office concluded that a justice of the peace, upon announcing as a candidate for director of a water control and improvement district, automatically resigned his office, when there was more than one year remaining in his term. Attorney General Opinion H-767 (1967). Section 65 has also been construed to effect the automatic resignation of a county commissioner who seeks election to a school board with more than one year remaining in his term. Ramirez v. Flores, 505 S.W.2d 406 (Tex. Civ. App. - San Antonio 1973, writ ref'd n.r.e.); Attorney General Opinion C-43 (1963).
Under the plain language of article XVI, section 65, one's mere announcement for another office constitutes an automatic resignation. See Attorney General Opinion WW-1253 (1962) (announcement made by press release published in a newspaper). It is irrelevant that the office holder announcing his candidacy for another office is ineligible on other grounds to assume the position for which he has announced. Therefore, a vacancy in the office of county commissioner presently exists.
SUMMARY
A county commissioner who files an application to place his name on the ballot in an election for the directorship of a water district automatically vacates his office if more than one year remains in his term, even though he is ineligible for the office of water district director.
Very truly yours,
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by David Brooks
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Jon Bible
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
Bruce Youngblood
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