Do campaign yard signs trigger Texas's resign-to-run rule and force a city council member out of office?

Plain-English summary

Representative Terry Canales, asking on behalf of the City of Palmview (a home-rule city), put a cluster of questions to the Attorney General about Texas's resign-to-run rule. A city councilmember had posted signs on public property reading "Elect Anthony Uresti for Place 5 of LJISD School board," and shared the same advertisement on his personal Facebook page with the caption "After great anticipation … I look forward in sharing this journey with you!" The city wanted to know whether those acts counted as "announcing" candidacy for another office, which would automatically end his city council term, and what happens next if it did.

The rule comes from article XVI, section 65 of the Texas Constitution: certain officers automatically resign the moment they announce candidacy, or in fact become a candidate, for another office of profit or trust when more than a year remains on their current term. Article XI, section 11 extends that rule to home-rule city officers whose terms run longer than two years, which covered the Palmview councilmember (four-year terms). A school board trusteeship counts as an office of profit or trust. So if the councilmember announced his candidacy, he automatically resigned his council seat. The constitution does not define "announce," so the AG used the ordinary meaning, "to make known publicly," and the settled requirements that the statement be made in a public setting (or otherwise available to the public) and be clear and unequivocal. Courts construe the term narrowly, because provisions restricting the right to hold office are strictly construed against ineligibility.

Applying that, the AG drew a line between the two acts. The Facebook caption, standing alone, likely would not qualify; it is the kind of vague "considering it" language that earlier opinions found short of an announcement. But campaign materials urging the public to "elect" a named candidate are a clear statement of candidacy, so the yard signs would likely meet the clear-and-unequivocal prong. On the public-setting prong, signs posted on public rights-of-way visible to the general electorate would likely qualify, while the reach of a personal social media post depends on facts (who follows it, how visible it is) that the AG could not weigh. The AG also stressed it could not resolve the fact question of whether the councilmember himself posted the signs. On the follow-on questions: a vacancy in a home-rule office with a term over two years must be filled by special election, not by council appointment; that election runs on a uniform election date within 120 days (here, it was held on November 3, 2020); under the holdover provision of article XVI, section 17, the officer keeps performing the duties until a successor qualifies; and an automatic resignation, once effective, cannot be rescinded.

What this means for you

This describes what the 2021 opinion holds about the resign-to-run rule. The opinion is now several years old, and the constitutional and Election Code provisions it relies on can change, so confirm current law before relying on this.

City council members and other officials thinking about another office

Based on this opinion, posting public campaign signs that urge voters to "elect" you to a different office can be treated as the announcement that automatically ends your current term, if your term is long enough to fall under the rule. A vague social media post hinting at a run is less likely, on its own, to cross that line. The opinion frames these as fact-sensitive judgments a court would ultimately make.

Cities filling the resulting vacancy

The opinion holds that a home-rule city with terms over two years must fill the vacancy by special election within 120 days, on a uniform election date, and may not appoint a replacement. The departing officer holds over and keeps performing the duties until a successor is duly qualified.

Candidates hoping to take it back

The opinion is explicit that an automatic resignation takes effect the same day the announcement is made and cannot be undone. Rescinding the announcement does not restore the office.

Common questions

Q: Do yard signs really force a Texas official to resign?
A: They can. If the signs urge the public to elect the official to another office and are posted publicly, the AG concluded a court would likely treat them as an announcement that triggers automatic resignation, assuming the official posted them.

Q: Does a Facebook post count as announcing candidacy?
A: Not necessarily. The AG said the caption here ("I look forward to sharing this journey") likely would not qualify on its own, and that whether a personal social media post is "public" enough depends on who can see it, which is a fact question.

Q: How is the empty council seat filled?
A: By special election. The opinion holds that a home-rule city with terms over two years must fill the vacancy by majority vote at a special election within 120 days and cannot appoint someone, even when the vacancy results from an automatic resignation.

Q: Can the official just take back the announcement and keep the seat?
A: No. The AG found no authority to rescind an automatic resignation once it has taken effect, which happens the same day the announcement is made.

Q: Does the official have to leave immediately?
A: Not entirely. Under the holdover provision (article XVI, section 17), the officer continues performing the duties of the office until a successor is duly qualified, to avoid a gap in government functions.

Background and statutory framework

The resign-to-run rule lives in article XVI, section 65 of the Texas Constitution: listed district and county officers automatically resign when they announce candidacy, or in fact become a candidate, for another office of profit or trust, if more than a year and 30 days remain on the current term. Article XI, section 11 extends that rule to home-rule municipal officers serving terms longer than two years and separately directs that vacancies in such offices be filled by special election rather than appointment. The constitution does not define "announce," so opinions and courts use the ordinary meaning ("to make known publicly") with two requirements: the statement must be public and must be clear and unequivocal. Standley v. Sansom indicates that "posters, billboards, cards, or ads" support application of the rule, and Wentworth v. Meyer supplies the strict-construction-against-ineligibility canon. The mechanics of the replacement election come from the Election Code: section 201.051 (order as soon as practicable), section 201.052 (uniform date on or after the 46th day), and section 41.001 (uniform dates in May and November). The holdover principle comes from article XVI, section 17, and the no-rescission rule from a line of opinions treating automatic resignation like a voluntary resignation, supported by Ramirez v. Flores and others.

Citations and references

Constitutional and statutory provisions:

• Tex. Const. art. XVI, § 65(a), (b) (automatic resignation on announcing candidacy)
• Tex. Const. art. XI, § 11(a), (c) (applies rule to home-rule officers; special-election fill)
• Tex. Const. art. XVI, § 17 (holdover until a successor qualifies)
• Tex. Elec. Code §§ 201.051, 201.052 (ordering and timing of special elections); § 41.001(a); § 41.0011 (emergency election)

Key cases:

• Standley v. Sansom, 367 S.W.3d 343 (Tex. App.—San Antonio 2012, pet. denied) (posters, billboards, cards, or ads support the resign-to-run provision)
• Wentworth v. Meyer, 839 S.W.2d 766 (Tex. 1992) (provisions restricting the right to hold office are strictly construed against ineligibility)
• Ramirez v. Flores, 505 S.W.2d 406 (Tex. App.—San Antonio 1973, writ ref'd n.r.e.) (automatic resignation takes effect the day the announcement is made)
• Plains Common Consol. Sch. Dist. No. 1 v. Hayhurst, 122 S.W.2d 322 (Tex. App.—Amarillo 1938, no writ) (purpose of the holdover provision)
• Sadler v. Jester, 46 F. Supp. 737 (N.D. Tex. 1942); Amarillo v. Mendenhall, 276 S.W.2d 868 (Tex. Civ. App.—Amarillo 1955, writ ref'd n.r.e.) (resignations once effective)

Related AG opinions:

• Tex. Att'y Gen. Op. Nos. KP-0301 (2020), GA-0643 (2008), GA-0210 (2004), GA-0769 (2010) (meaning and requirements of "announce")
• Tex. Att'y Gen. Op. Nos. JC-0318 (2000), JC-0403 (2001), DM-0377 (1996), DM-0406 (1996) (special-election fill, holdover, no rescission)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0351
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2021/kp-0351.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

January 26, 2021

The Honorable Terry Canales
Chair, House Committee on Transportation
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910

Opinion No. KP-0351

Re: Whether yard signs and a social media post qualify as an "announcement" for candidacy for another office, thus triggering the automatic resignation provision of article XI, section 11 of the Texas Constitution (RQ-0369-KP)

Dear Representative Canales:

On behalf of the City of Palmview ("City"), a home-rule city, you ask whether the resign-to-run provision of the Texas Constitution applies to a city councilmember who engaged in certain behavior.¹ Specifically, you ask whether the councilmember's "placing political signs on public property and making public statements on Facebook" qualify as an "announcement" for candidacy for a school district board of trustees that triggers the automatic resignation provision for his current city council office. Request Letter at 2–3. You explain that the councilmember placed "political signs on public properties that state 'Elect Anthony Uresti for Place 5 of LJISD School board.'" Id. at 1. You further detail that the councilmember posted "the same political advertisement" on his personal social media page, alongside a message stating, "After great anticipation … I look forward in sharing this journey with you!" Id. You ask whether the City correctly concluded that the above facts trigger the resign-to-run provision. Id. at 3.

Article XVI, section 65 of the Texas Constitution provides that certain district or county officers automatically resign from office upon announcing their candidacy or becoming a candidate for other specific offices:

If 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 year and 30 days, 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(b). Two separate acts may trigger this provision: (1) when an officer announces candidacy; or (2) when an officer in fact becomes a candidate. Id. An officer becomes a candidate in fact under subsection 65(b) by formally applying for a place on the ballot. See Tex. Att'y Gen. Op. No. GA-0769 (2010) at 1. Here, you ask whether the councilmember's actions constitute an "announcement" under this provision, and we address only the first component of subsection 65(b).

Although the list of officers in section 65 does not include city councilmembers, article XI, section 11 provides that officers of a home-rule city that hold a term longer than two years "are subject to Section 65(b), Article XVI, of this Constitution, providing for automatic resignation in certain circumstances, in the same manner as a county or district officer to which that section applies." TEX. CONST. art. XI, § 11(a). Because the City is a home-rule municipality with four year terms for its councilmembers,² the councilmember you describe is subject to article XVI, section 65(a) when running for any office of profit or trust. TEX. CONST. art. XVI, § 65(a), (b). The councilmember voiced interest in running for a position as trustee of a school board, which is an "office of profit or trust." See Tex. Atty. Gen. Op. No. JC-0403 (2001) at 3 (citing Ramirez v. Flores, 505 S.W.2d 406 (Tex. App.—San Antonio 1973, writ ref'd n.r.e.)). Therefore, if the councilmember you describe announced his candidacy under subsection 65(b), he automatically resigned from his position on the city council.

Article XVI, section 65 does not define the term "announce." See TEX. CONST. art. XVI, § 65; see also Tex. Att'y Gen. Op. No. KP-0301 (2020) at 2. Prior opinions and court decisions rely on the ordinary meaning of the word: "to make known publicly." Tex. Att'y Gen. Op. No. GA-0210 (2004) at 2 (citing WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY 87 (9th ed. 1990)), Standley v. Sansom, 367 S.W.3d 343, 350 (Tex. App.—San Antonio 2012, pet. denied); see also Tex. Att'y Gen. Op. No. GA-0769 (2010) at 2. To be sufficiently public, the candidate's statement must "be made in a public setting or be otherwise available to the public," and the statement must be definite. Tex. Att'y Gen. Op. Nos. KP-0301 (2020) at 2, GA-0643 (2008) at 6–7. A statement about merely considering running for another office is not an announcement. Tex. Att'y Gen. LO-95-071, at 2. Courts narrowly construe the term announce because "[a]ny constitutional or statutory provision which restricts the right to hold office must be strictly construed against ineligibility." Tex. Att'y Gen. Op. No. GA-0210 (2004) at 3 (citing Wentworth v. Meyer, 839 S.W.2d 766, 767 (Tex. 1992)).

We first consider whether the statements and actions you describe satisfy the clear and unequivocal requirement of an announcement. With regard to the social media post, by itself, the caption stating, "After great anticipation…I look forward to sharing this journey with you" would likely not qualify as an announcement for automatic resignation purposes. Request Letter at 1; see Tex. Att'y Gen. Op. No. GA-0643 (2008) at 8–9 (concluding that, among other acts, a flier that an officer handed out stating that he wanted to bring his "leadership, values, and experience . . . to the County Commissioners Court" did not qualify as an announcement for candidacy). However, a court would likely conclude that campaign materials urging the public to "elect" a candidate provide a clear statement that the candidate is running for office.³ Assuming that the councilmember posted the yard signs and social media statement, a court would likely conclude that the statements and actions satisfy the clear and unequivocal prong of an announcement for the resign-to-run provision.

To qualify as an announcement under subsection 65(b), the announcement must also be sufficiently public. One Texas court suggested that "posters, billboards, cards, or ads" for one's candidacy for another position support application of the automatic resignation provision. See Standley, 367 S.W.3d at 353 (upholding application of the resign-to-run provision despite that a candidate did not have these materials). Where those materials are posted and to whom they are given are also relevant to determine whether the materials satisfy the requirement that they be public. You explain that the signs at issue were placed "on public properties," but do not further describe those properties. Request Letter at 1. To the extent that the candidate posted signs on public rights-of-way, visible to the general electorate, a court would likely find that the signs are "made in a public setting or [are] otherwise available to the public." Tex. Att'y Gen. Op. No. KP-0301 (2020) at 2.

With regard to the social media post, you explain that the councilmember posted it on his personal social media account. Request Letter at 2. You do not explain who follows his social media page or to what extent it is visible to the public, and a court would consider such factors in determining whether the statements satisfied the requirement that the announcement be sufficiently public to satisfy the resign-to-run provisions.

Assuming an automatic resignation occurred, you also ask whether the vacancy is filled by special election or appointment by the city council. Id. at 3. Article XI, section 11 of the Texas Constitution provides that home-rule municipalities shall generally fill vacancies by special election:

Any vacancy or vacancies occurring on such governing body shall not be filled by appointment but must be filled by majority vote of the qualified voters at a special election called for such purpose within one hundred and twenty (120) days after such vacancy or vacancies occur except that the municipality may provide by charter or charter amendment the procedure for filling a vacancy occurring on its governing body for an unexpired term of 12 months or less.

TEX. CONST. art. XI, § 11(c). Article XI, section 11 requires that "any vacancy in a municipal governing body with terms exceeding two years must be filled by majority vote of the qualified voters at a special election and that a city may not fill such a vacancy by appointment, even if the vacancy is the result of an automatic resignation."⁴ Tex. Att'y Gen. Op. No. JC-0318 (2000) at 5. Because the vacancy left by the councilmember exceeds twelve months, to the extent an automatic resignation occurred, the city council position must be filled by a special election. See id.

You also ask whether the City of Palmview should hold the special election in conjunction with the general election in November or at a later date. Request Letter at 3. Home-rule municipalities must fill vacancies in a special election within 120 days after the vacancy occurs. TEX. CONST. art. XI, § 11(c). A city may initiate an election to fill a vacancy immediately upon automatic resignation under article XI, section 11, and it must do so to ensure the vacancy is filled within 120 days. Tex. Att'y Gen. Op. No. JC-0403 (2001) at 3. Chapter 201 of the Election Code provides that if a vacancy in office is to be filled by special election, the election shall be ordered as soon as practicable after the vacancy occurs. See TEX. ELEC. CODE § 201.051 (a); Tex. Att'y Gen. Op. No. JC-0318 (2000) at 6. "Except as otherwise provided by [the election] code, a special election to fill a vacancy shall be held on the first authorized uniform election date occurring on or after the 46th day after the date the election is ordered." TEX. ELEC. CODE § 201.052.⁵ For municipalities, uniform election dates occur on the first Saturday of May in each year and the first Tuesday after the first Monday in November. Id. § 41.001(a). Under the automatic resignation provision, an officer resigns, and therefore leaves a vacancy, immediately upon announcing candidacy for another office. See Ramirez, 505 S.W.2d at 409; Tex. Att'y Gen. LO-94-059, at 1. Assuming that the councilmember engaged in behavior that amounted to an automatic resignation within 120 days of the general election in November, the special election to fill the vacancy should have been held, and in fact was held, on November 3, 2020.⁶

You also ask whether the "holdover provision" applies to the councilmember. Request Letter at 3. Article XVI, section 17 of the Texas Constitution provides that "[a]ll 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 the consequent cessation of the functions of government." Tex. Att'y Gen Op. No. DM-0377 (1996) at 2 (citing Plains Common Consol. Sch. Dist. No. 1 v. Hayhurst, 122 S.W.2d 322 (Tex. App.—Amarillo 1938, no writ)). This office previously opined that "[a]lthough 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." Tex. Att'y Gen. Op. No. DM-0377 (1996) at 4; see also Tex. Att'y Gen. Op. No. WW-1253 (1962) at 3. Thus, this office treats the automatic resignation provision like other voluntary resignations of office rather than like other constitutional bars on holding an office, and "an officer whose resignation has been effected but whose successor has not been appointed retains the position as a 'de jure' officer." Tex. Att'y Gen. Op. No. DM-0377 (1996) at 4. Therefore, office holders subject to the automatic resignation provision hold over in office until a successor is duly qualified.

In your final question, you ask whether the councilmember may rescind an announcement for candidacy to avoid application of the automatic resignation provision. Request Letter at 3. In previous opinions, this office interpreted automatic resignations under article XVI, section 65 similar to other voluntary resignations of office and found "no authority for the revocation or undoing of a public officer's resignation once it has taken effect." See Tex. Att'y Gen. LO-94-059, at 2; see, e.g., Tex. Atty. Gen. Op. No. DM-0406 (1996) at 3, Sadler v. Jester, 46 F. Supp. 737, 741 (N.D. Tex. 1942); Amarillo v. Mendenhall, 276 S.W.2d 868 (Tex. Civ. App.—Amarillo 1955, writ ref'd n.r.e.). An automatic resignation takes effect on the same day that an announcement for candidacy for another office is made. See Ramirez, 505 S.W.2d at 409; Tex. Att'y Gen. LO-94-059 (1994) at 1. Accordingly, an officer may not rescind an automatic resignation.

¹ See Letter from Honorable Terry Canales, Chair, House Comm. on Transp., to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Aug. 5, 2020), https://www2.texasattorneygeneral.gov/opinions/opinions/51paxton/rq/2020/pdf/RQ0369KP.pdf ("Request Letter").

² PALMVIEW, TEX., CITY CHARTER, § 3.03(C) (providing that councilmembers serve four-year terms), https://cityofpalmview.com/charter/.

³ This office cannot resolve any question of fact as to whether the councilmember himself posted the signs and social media post. See Tex. Att'y Gen. Op. No. GA-0867 (2011) at 2 ("Attorney general opinions do not answer fact questions."); see also Tex. Att'y Gen. Op. No. GA-0643 (2008) at 7 (concluding that certain facts fell "short of an unambiguous statement of candidacy shown to have been made by the constable himself" for the purpose of the resign-to-run provision).

⁴ The City called a special election to fill this vacancy on Aug. 11, 2020. See https://www.progresstimes.net/2020/08/11/palmview-councilman-to-step-down-in-november/.

⁵ You do not present facts that suggest that any exceptions apply in these circumstances, such as the Governor ordering an earlier emergency election on a nonuniform date. TEX. ELEC. CODE § 41.0011(a); see also id. § 41.0011(b) (political subdivision must seek permission from Governor), (c) (proclamation for emergency election must identify nature of the emergency).

⁶ See Notice of Palmview Special City Election, https://www.progresstimes.net/2020/10/23/notice-of-palmview-special-city-election/.

S U M M A R Y

Article XVI, section 65 of the Texas Constitution provides that certain district or county officers automatically resign from office upon announcing their candidacy for any other office of profit or trust under the laws of this State or the United States. Article XI, section 11 applies this provision to officers of a home-rule city that hold a term longer than two years. To qualify as an announcement under these provisions, the person's statement must be made in a public setting and be clear and unequivocal. Whether any given statement satisfies these requirements will involve questions of fact, but to the extent a person posts campaign signs on public property, visible to the general public, urging his or her election, a court would likely conclude that such acts constitute an announcement for purposes of article XVI, section 65.

Article XI, section 11 of the Texas Constitution requires that any vacancy in a home-rule municipal office with a term exceeding two years be filled by majority vote of the qualified voters at a special election.

If a city councilmember automatically resigned within 120 days of the general election in November, the special election to fill the vacancy should be held on the same day as the general election.

Article XVI, section 17 of the Texas Constitution provides that all officers within this State shall continue to perform the duties of their offices until their successors shall be duly qualified. Pursuant to this provision, office holders subject to the automatic resignation provision hold over in office until a successor is duly qualified.

A city councilmember may not rescind an announcement for candidacy to avoid application of the automatic resignation provision.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT E. WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff
Acting Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee