ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
July 9,2008
The Honorable Chris G. Taylor Opinion No. GA-0643
Tom Green County Attorney
122 West Harris Avenue Re: Whether the conduct of a constable implicates
San Angelo, Texas 76903 the resign-to-run provisions ofarticle XVI, section
65 of the Texas Constitution (RQ-0665-GA)
Dear Mr. Taylor:
You ask whether the conduct ofa particular constable implicates the resign-to-run provisions
of article XVI, section 65 of the Texas Constitution. l Under article XVI, section 65, holders of
certain offices, including constables, automatically resign their positions if they announce their
candidacy or become a candidate in fact for any other elected office, unless the unexpired portion
of the current term is one year or less. See TEX. CONST. art. XVI, § 65(a)-(b).
I. Background and Questions Asked
You provide the following "reported facts" regarding the constable's conduct:
1. On September 5, 2007, [the constable] filed with the Elections
Administration office a document for the appointment of a
campaign treasurer by a candidate. The blank entitled "Office
Held" was filled with the words, "Constable, Pct. 1, Tom Green
County, Texas." The blank entitled "Office Sought" was filled
in with the words, "County Commissioner, Pct. 1, Tom Green
County." ....
2. The Tom Green County Democratic Club [the "Club"]
newsletter for September of 2007 featured a notice of [the
constable's] upcoming appearance, ... stating: " [The constable]
has an important announcement to make." ....
1See Letter from Honorable Chris G. Taylor, Tom Green County Attorney, to Honorable Greg Abbott, Attorney
General of Texas (Jan. 8, 2007) (on file with the Opinion Committee, also available at http://www
.texasattorneygenera1.gov) [hereinafter Request Letter].
The Honorable Chris G. Taylor - Page 2 (GA-0643)
3. [The constable] appeared at the ... Club's September 10,2007
meeting ... and spoke to the group, handing out a flier entitled
"We, The People" containing the words, "I want to bring my
leadership, my values, and my experience of sixteen (16) years
as a ... (Constable) to the Tom Green County Commissioners
Court." ....
4. At that same [Club] meeting outside the meeting room [the
constable] appeared in a videotaped interview making
references to "my campaign." The video was broadcast on ...
one of the local television stations, but the sound portion was
deleted, with the video portion serving as a background for
the broadcaster's announcement that [the constable] had
announced his candidacy for the commissioner's position at the
meeting....
5. The minutes from the [Club] contain the entry: "[The
constable] was the speaker. He will be running for Tom Green
County Commissioner in Precinct One."
6. A candidate/officeholder campaign report signed by [the
constable] covering the dates of September 5, 2007 through
November 5, 2007 again lists in the blank for "office held" as
"Constable ..." and "office sought" as "Exploratory[.]" ....
7. A news article from September 9,2007 in the online version of
the San Angelo Standard-Times newspaper made reference to
the [exploratory] committee [but] the source ofthe information
is not given. It states: "[The constable] announced last week
that he has formed an exploratory committee-something he
has to do because he isn't allowed to file for candidacy until he
enters the final year of his term, said Tom Green County
Democratic Chair . . . ."
Request Letter, supra note 1, at 2-3. The constable's term of office expires December 31, 2008. 2
You inform us that the constable does not dispute the occurrence ofthe acts and statements described
above nor that they occurred when the unexpired term ofhis office exceeded one year. County Brief,
supra note 2, at 1. He does dispute, however, that these acts and statements constituted (or were
intended to constitute) an announcement ofcandidacy for the purposes ofTexas Constitution article
XVI, section 65. Request Letter, supra note 1, at 2. Thus, you ask the following two questions:
2See Memorandum of Legal Research, at 1 (attached to Request Letter, supra note 1) (on file with the Opinion
Committee) [hereinafter County Brief]. .
The Honorable Chris G. Taylor - Page 3 (GA-0643)
(1) Whether or not a finder of fact could reasonably conclude as a
matter of law, that, under the facts presented, [the constable] became
a candidate by making a public announcement of candidacy for the
office of County Commissionet, Precinct #1 while he still had more
than a year to serve in his current office so as to trigger Article XVI,
section 65 of the Texas Constitution.
(2) Whether [Election Code] Section 251.001(1)(A), which
exempts the filing of a campaign treasurer appointment from
constituting "candidacy" or "an announcement" for the purposes of
the automatic resignation provisions of Article XVI, section 65, ...
is unconstitutional.
Id. at 1.
II. Analysis
A. Constitutionality of Election Code Section 251.001(1)(A)
Because the constitutionality ofElection Code section 251.001 (1 )(A) may impact the analysis
ofyour first question, we begin with your second question. Section 251.001 (1) ofthe Election Code
defines the term "candidate" for the purposes of title 15 of the Election Code, which governs
campaign contributions and expenditures, political reporting, and political advertising. See TEX.
ELEC. CODE ANN. § 251.001(1) (Vernon Supp. 2007); ide tit. 15 (Vernon 2003 & Supp. 2007)
(Regulating Political Funds and Campaigns); see also Tex. Att'y Gen. Ope No. JC-0249 (2000)
at 5 ("It is within the [L]egislature's prerogative to define the term 'candidate' broadly for these
purposes."). The statute defines the term as a person who "takes affirmative action for the purpose
of gaining nomination or election to public office or for the purpose of satisfying financial
obligations incurred ... in connection with the campaign for nomination or election." TEX. ELEC.
CODE ANN. § 251.001(1) (Vernon Supp. 2007). And it includes among various "examples of
affirmative action" the "filing of a campaign treasurer appointment, except that the filing does not
constitute candidacy or an announcement ofcandidacy for purposes ofthe automatic resignation
provisions of Article XVI, Section 65." Id. § 251.001(1)(A) (emphasis added).3
Texas Constitution article XVI, section 65 provides in relevant part:
If any ofthe officers named herein [in section 65(a)] shall announce
their candidacy, or shall infact become a candidate, in any General,
Special or Primary Election, for any office ofprofit or trust under the
laws ofthis State or the United States other than the office then held,
3Under the Election Code, a candidate may not accept a campaign contribution or make or authorize a campaign
expenditure "at a time when a campaign treasurer appointment for the candidate is not in effect." TEX. ELEC. CODE ANN.
§ 253.031(a) (Vernon Supp. 2007).
The Honorable Chris G. Taylor - Page 4 (GA-0643)
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(b) (emphasis added); see ide art. XVI, § 65(a) ("This section applies to .
the following offices: District Clerks; ... and Constables."). Automatic resignation under article
XVI, section 65 is triggered in either of two ways: when a named officer "announces" candidacy
or "in. fact becomes a candidate." See ide art. XVI, § 65(b); Tex. Att'y Gen. Op. No. GA-0210
(2004) at 2.
You suggest that it could be argued that section 251.001(1)(A) attempts to legislatively
negate or control the plain meaning of the article XVI, section 65 term "announce candidacy." See
County Brief, supra .note2, at 5. It has been asserted by some persons in the County that the filing
of a campaign treasurer appointment "is so great an evidence of intent to run/or the new office that
the current law should not allow such a filing to be free ofthe 'resign-to-run' consequences, and that
its constitutionality should be questioned on public policy grounds." Request Letter, supra note 1,
at 2 (emphasis added); see also County Brief, supra note 2, at 5 ("The public-policy concern ... is
that the filing of such a report is such a public act that it defies credulity to say that such an act
should be legally shielded from it[s] obvious proof of intent to achieve candidate status ....").
We consider the language of section 251.001 (1 )(A). Significantly, the statute does not state
that a treasurer appointment filing may not be considered as relevant to whether a person has
announced a candidacy for office or become a candidate. By its terms, the statute merely precludes
the filing by itself to constitute candidacy or announcement of candidacy triggering the automatic
resignation provisions of article XVI, section 65. See TEX. ELEC. CODE ANN. § 251.001(1)(A)
(Vernon Supp. 2007) ("except that the filing does not constitute candidacy or an announcement of
candidacy for purposes of the automatic resignation provisions of Article XVI, Section 65").
No court decision or attorney general opinion has addressed the constitutionality of section
251.001 (1 )(A) or a similar statute. See, e.g., id. § 172.021 (d) (providing that circulation ofa petition
for a place on the ballot does not constitute candidacy or an announcement of candidacy for the
purposes of article XVI, section 65). In considering the constitutionality of section 251.001 (1 )(A),
we adhere to interpretation principles established by the Texas courts. Any analysis begins with the
presumption that a statute is constitutional. Walker V. Gutierrez, 111 S.W.3d 56, 66 (Tex. 2003)
(citing Enron Corp. v. Spring Indep. Sch. Dist., 922 S.W.2d 931,934 (Tex. 1996)). The party
challenging a statute's constitutionality has the burden of showing that the statute fails to meet
constitutional requirements. Walker, 111 S.W.3d at 66. When a constitutional provision does not
contain an express limitation, a clearly implied limitation on the Legislature's power must be
identified in order to hold the statute unconstitutional. Diaz V. State, 68 S.W.3d 680, 685 (Tex.
App.-EI Paso 2000, pet. denied) (citing State V. Brownson, 61 S.W. 114 (1901)); see also Tex.
Mun. League Intergovernmental Risk Pool V. Tex. Worker's Compo Comm 'n, 74 S.W.3d 377, 381
The Honorable Chris G. Taylor - Page 5 (GA-0643)
(Tex. 2002) (stating that the Legislature may not authorize an action that the Texas Constitution
prohibits).
Article XVI, section 65 does not expressly prohibit the Legislature from providing that
certain actions, including the campaign treasurer appointment filing, do not trigger automatic
resignation. See'TEX. CONST. art. XVI, § 65. Thus, we must consider whether the plain meaning
of the term "announce their candidacy" impliedly prohibits such legislative action. See Diaz, 68
S.W.3d at 685 (in the absence of an express limitation, a reviewing court must identify a clearly
implied limitation).
Article XVI, section 65 does not define the term "announce their candidacy" or "announce."
And no court has specifically construed this term as used in this or a similar constitutional provision.
"Presuming that the language of the Texas Constitution is carefully selected" a court, "construe[s]
its words as they are generally understood." Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578,580
(Tex. 2000). The generally understood meaning of "announce" is to make a public statement about
a fact, occurrence, or intent. See MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 50 (11 th ed. 2005)
(defining "announce" as "to make known publicly: PROCLAIM"); THE NEW OXFORD AMERICAN
DICTIONARY 63 (2001) (defining "announce" as to "make a public and typically formal declaration
about a fact or occurrence or intention"); see also Smith v. State Lottery Comm 'n, 812 N.E.2d 1066,
1072 (Ind. App. 2004) ('''announce' is defined as 'to give public notice of; make known officially
or publicly; deliver news of" (quoting WEBSTER'S THIRD NEW INT'L DICTIONARY (2002))); Tex.
Att'y Gen. Ope No. DM-377 (1996) at 2 ("To 'announce' is 'to deliver news; to make public or
official intimation of, to proclaim'" (quoting 1 THE OXFORD ENGLISH DICTIONARY 485 (2d ed.
1989))). Thus, the generally understood meaning of the constitutional language requires a public
statement of intent to become a candidate or to run for an office.
A court would likely find that a campaign treasurer appointment filing, by itself, is not a
public statement of intent to become a candidate or to run for an office and thus would uphold the
constitutionality of section 251.001(1)(A). The Texas Supreme Court construes constitutional and
statutory provisions relating to eligibility for office narrowly: "Any constitutional or statutory
provision which restricts the right to hold office must be strictly construed against ineligibility."
Wentworthv. Meyer, 839 S.W.2d 766,767 (Tex. 1992) (citingBrownv.Meyer, 787 S.W.2d42 (Tex.
1990)). Applying this maxim, a court would likely read section 251.001(1)(A) narrowly in light
of its purpose and operation to avoid ineligibility. First, the section 251.001(1)(A) treasurer
appointment filing is required to comply with the state laws regulating political contributions and
expenditures. See TEX. ELEC. CODE ANN. § 253.031 (Vernon Supp. 2007) ("contribution and
expenditure without campaign treasurer prohibited"). Neither section 251.001 (1 )(A) nor chapter 251
by its terms is enabling law for article XVI, section 65. Second, the treasurer appointment document
is filed with the county clerk. See ide § 252.005(2) (Vernon 2003) (providing that the treasurer
appointment must be filed with the county clerk if the appointment is for a candidacy for a county
or precinct office). In the context of chapter 251 and title 15 of the Election Code, the filing is not
intended to make a public statement of intent to run for office; nor does it serve this purpose. See
ide §§ 251.001(1)(A) (Vernon Supp. 2007),252.005 (Vernon 2003), 253.031 (Vernon Supp. 2007);
see also 1 TEX. ADMIN. CODE § 20.205(3) (2008) (Tex. Ethics Comm'n, Contents of Candidate's
The Honorable Chris G. Taylor - Page 6 (GA-0643)
Campaign Treasurer Appointment) (requiring information to include "the office sought by the
candidate making the appointment, if known") (emphasis added). Although the filing may be
accessible as a public document, the general public does not necessarily see the filing or know about
it. Thus, while the filing may be some evidence of a person's intent to run for office, by itself it is
not the public statement of candidacy contemplated by article XVI, section 65.
In sum, under the present state of the law, it is unlikely that a party challenging the
constitutionality of section 251.001 (1 )(A) would meet its burden and demonstrate that the treasurer
appointment filing is clearly the type of public statement or declaration of candidacy contemplated
by article XVI, section 65. See Walker, 111 S.W.3d at 66 (stating that a statute is presumed to be
constitutional and the party challenging its constitutionality has the burden of showing its
unconstitutionality). The assertion that section 251.001 (1 )(A) is contrary to public policy would be
insufficient to overcome the presumption against unconstitutionality and strict construction against
office ineligibility. See Tex. Workers' Compo Comm 'n v. Garcia, 893 S.W.2d 504, 520 (Tex. 1995)
(stating that "the wisdom or expediency ofthe law is the Legislature's prerogative," not the court's)
(quoting Smith v. Davis, 426 S.W. 2d 827,831 (Tex. 1968))); Request Letter, supra note 1, at 2;
County Brief, supra note 2, at 5 (stating that constitutionality of section 251.001(1)(A) has been
questioned on public policy grounds).
B. Constable's Conduct
You ask also whether under the facts presented here "a finder of fact could reasonably
conclude as a matter of law" that the constable in question "became a candidate by making a public
announcement of candidacy." Request Letter, supra note 1, at 1. Your question suggests that a
person becomes a candidate in fact by announcing his or her candidacy. Article XVI, section 65 is
triggered, however, when a person becomes "a candidate in fact" or announces his or her candidacy.
See TEX. CONST. art. XVI, § 65(b); see also Tex. Att'y Gen. Op. No. GA-0210 (2004) at 2. In the
context of the request letter as a whole, we understand your question to concern the announcement
of candidacy for another office.
Relying on the generally understood meaning of the constitutional language, this office has
explained that an officer announces candidacy for office by making a written or oral statement from
which a reasonable person may conclude that the individual intends, without qualification, to run
for the office in question. Tex. Att'y Gen. Op. Nos. GA-0210 (2004) at 2, JC-0249 (2000) at 2;
Tex. Att'y Gen. LO-95-071, at 2; see also MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 50
(11 th ed. 2005) (defining "announce" as "to make known publicly: PROCLAIM"); THE NEW OXFORD
AMERICAN DICTIONARY 63 (2001) (defining "announce" as to "make a public and typically formal
declaration about a fact or occurrence or intention"). Additionally, again based on the generally
understood meaning of the constitutionally used term "announce," this office has advised that the
statement must be made in a public setting or be otherwise available to the public. See Tex. Att'y
Gen. Op. No. GA-0210 (2004) at 2 (citing Tex. Att'y Gen. Op. Nos. DM-377 (1966), WW-1253
(1962)). Thus, a statement while certain as to the person's intention to run for an office, but made
in a private conversation does not constitute an announcement of candidacy for the purposes of
article XVI, section 65. See Tex. Att'y Gen. Op. No. GA-0210 (2004) at 2-3 (concluding that a
The Honorable Chris G. Taylor - Page 7 (GA-0643)
justice of the peace's private conversation with a reporter that "did not result in any publication of
information about the justice of peace's plans" within the requisite time period did not trigger the
automatic resignation provisions of article XVI, section 65).
Based on the constitutional language, this office has derived an objective standard to
determine whether a person has "announced candidacy" for another office: Whether a reasonable
person would conclude from an individual's written or oral statement that the individual intends to
run for the office in question.
In response to particular requests, attorney general opinions have considered an undisputed
statement regarding candidacy or an act, and advised whether the particular statement or action
triggered the automatic resignation provisions of article XVI, section 65 as a matter of law. For
instance, an opinion concludes that a person who merely states that he or she would "seriously
consider running" for an office if the incumbent resigns has not announced candidacy. See Tex.
Att'y Gen. LO-95-071, at 2. Similarly, another opinion concludes that "the mere act of seeking a
party's executive committee's nomination does not constitute an announcement." Tex. Att'y Gen.
Ope No. JC-0249 (2000) at 4; see also ide ("[a]ctivity indicating interest in an office that falls short
of announcing a candidacy or becoming a candidate in an election does not trigger the resign-to-run
provision"). In contrast, opinions have advised that a person who states, without qualification, that
he or she will run for a particular office has announced candidacy for the purposes of article XVI,
section 65. See Tex. Att'y Gen. Ope Nos. DM-377 (1996), WW-1253 (1962).
The circumstances presented here are quite different. The prior attorney general opinions
considered a single act or statement regarding candidacy by the officer in question and determined
on that basis alone whether the officer did or did not announce his candidacy. In contrast, we are
presented with several reported acts and statements that fall short of an unambiguous statement of
candidacy shown to have been made by the constable himself. We must determine whether looking
at these reported acts and statements, "a finder offact could reasonably conclude as a matter of law"
that the constable announced his candidacy for county commissioner. 4 In the context of a judicial
appeal challenging the legal sufficiency ofthe evidence supporting an adverse trial court finding, "a
proposition [is] established as a matter of law when a reasonable finder of fact could draw only one
conclusion from the evidence presented." RAJ Partners, Ltd V. Darco Constr. Corp., 217 S.W.3d
638, 648 (Tex. App.-Amarillo 2006, no pet.) (citing City ofKeller v.Wilson, 168 S.W.3d 802,
814-16 (Tex. 2005)); accord Innovative Truck Storage, Inc. V. Airshield Corp., No. 13-05-743-CV,
2007 WL 1775962, at *5 (Tex. App.-Corpus Christi June 21, 2007, no pet.) (mem. op., not
designated for publication); see also January V. State, 720 S.W.2d 207, 211 (Tex. App.-Houston
[14th Dist.] 1986, no writ) (equating establishment ofentrapment as a matter oflaw with conclusive
4This office does not fmd facts or resolve questions of fact; thus, attorney general opinions ordinarily answer
only questions that can be answered as a matter of law. See Tex. Att'y Gen. Ope No. GA-0459 (2006) at 4-5 (stating
that attorney general opinions cannot resolve disputed fact questions); Tex. Att'y Gen. Op. No. GA-0604 (2008) at 5
(concluding that "we cannot answer your second question because it would require us to resolve fact questions"); see
also County Brief, supra note 2, at 1 (stating that because the "Opinion Committee will not make fmdings of fact, we
are proceeding under the assumption that this [fact finder concluding as a matter oflaw] would be the proper standard").
The Honorable Chris G. Taylor - Page 8 (GA-0643)
evidence and stating that upon appellant's failure to establish entrapment "as a matter of law ... ,
the case was properly submitted to the finder offact").5
We consider first the reported statements. At the September 10, 2007 Club meeting, the flier
the constable distributed expressed the desire to bring his "leadership, values, and ... experience"
to the County Commissioners Court, but it did not state that the constable was a candidate or would
run for that office. See supra p. ·2, reported fact item numbered 3. And it is unclear whether the
constable made such a statement on September 10, 2007 during or after his appearance at the Club
meeting. See supra p. 2, reported fact items numbered 4-5. The local television broadcast and the
minutes ofthe Club meeting state that the constable announced his candidacy for the commissioners
court. But whether the broadcast and the minutes accurately reflected the constable's statement
remains a question offact. You explain that your office was unable to verify through interviews that
the constable did or did not make that statement at the Club's September 10, 2007 meeting. See
Request Letter, supra note 1, at 2 ("The County Attorney's Investigator interviewed three. other
individuals [other than the Democratic Party Chair] who stated that although they had also attended
the club meeting, they did not hear, or did not remember hearing [the.constable] announce that he
was running for office."). Similarly, it cannot be verified whether the constable made the statement
to the local television station employee after the meeting or during the videotaped interview because
the sound portion of the videotaped interview shown was deleted when it was broadcast. See id.
While the two separate reports ofthe announcement suggest that the constable may have made them,
we cannot conclude-nor do you suggest that we may assume-that he did so. See, e.g., Tex. Att'y
Gen. Op.No. DM-377 (1996) at 2 (concluding that countyjudge announced his candidacy or became
a candidate "[o]n the assumption that the county judge made the statements reported in the
newspaper"); see Tex. Att'y Gen. Ope No. 0-3382 (1941) at 5 (stating that attorney general opinions
cannot decide questions about the weight of the evidence or the credibility of witnesses).
We next consider the filing of the treasurer appointment. See supra p. 1, reported fact item
numbered 1. As discussed earlier, the Legislature in section 251.001(A) has expressly provided that
the filing of such a document does not constitute an announcement of candidacy. See TEX. ELEC.
CODE ANN. § 251.001(1)(A) (Vernon Supp. 2007) (including as an example of affirmative action
"the filing of a campaign treasurer appointment, except that the filing does not constitute candidacy
or an announcement of candidacy for purposes of the automatic resignation provisions of Article
XVI, Section 65"); see also Tex. Att'y Gen. Ope No. JC-0249 (2000) at 5 (concluding that a person
who merely seeks a political party's executive committee's nomination to be the party's
candidate-which action is also listed as an example of affirmative action in section
251.001(1)(H)-does not trigger the resignation provision of article XVI, section 65). However,
while the filing by itself does not constitute an announcement of candidacy-and is not, therefore,
SIn this regard, we note that while a trial court may find facts and an. appellate court may review the
reasonableness ofthe fact findings, this is not a function ofthe opinion process. See, e.g., Morrow v. Corbin, 62 S.W.2d
641, 643-46 (Tex. 1933) (distinguishing advisory opinions as an executive rather than ajudicial function and discussing
the powers ofjudicial courts); C. T. Stedman v. Georgetown Sav. & Loan Ass 'n, 595 S.W.2d 486,486-89 (Tex. 1979)
(reviewing the reasonableness of the evidence supporting the trial court's fact findings).
The Honorable Chris G. Taylor - Page 9 (GA-0643)
dispositive on this issue-the statute does not preclude considering the filing as an evidence ofintent
to run for office.
Thus, while a finder of fact considering the totality of the reported events here could
reasonably conclude that the constable announced his candidacy, this office cannot conclude that a
finder of fact would do so as a matter of law. Cf RAJ Partners, Ltd., 217 S.W.3d at 648 ("a
proposition [is] established as a matter of law when a reasonable finder of fact could draw only one
conclusion from the evidence presented"). Accordingly, we cannot determine as a matter oflaw that
the constable announced his candidacy for another office, thereby triggering the automatic
resignation provisions of article XVI, section 65.
The Honorable Chris G. Taylor - Page 10 (GA-0643)
SUMMARY
Election Code section 251.001 (1 )(A) provides that the filing
ofa campaign treasurer appointment does not constitute candidacy or
an announcement of candidacy for another elected office for the
purposes of the automatic. resignation provisions of Texas
Constitution article XVI, section 65. A court would likely conclude
that section 251.001(1)(A) is constitutionaL
Because the facts presented are not legally dispositive as to
whether a particular constable orally or in writing stated that he was
a candidate or running for the office of county commissioner, this
office cannot determine as a matter of law that the constable
announced his candidacy for another office when more than one year
remained in his current term of office.
Very truly yours,
KENT C. SULLIVAN
First Assistant Attorney General
ANDREW WEBER
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Sheela Rai
Assistant Attorney General, Opinion Committee