~THEATCORNEYGENERAL
OF TEXAS
January 20, 1960
Honorable Bucney Walker Oplnlon No.. w-788,,
Criminal Dletrlct Attorney
Waco, Texas, Re: Whether an officer who
resigns his office upon
becoming a oandldate for
a~nother office, a8 pro-
vided,,in Article XVI,
Section 65 of the Con-
stitution, Is eligible
for appointment to fill
the, vacancy created by
his resignation.
Dear Mr, Walker: ,,
Your request for an opinion reads as follows:
"The County Commissioners Court of McLennan
County has called upon my office for an opinion.
The factual background of thls~lnqulry Is this:
The County Judge of McLennan County Is presently
serving a term which ends December 31, 1962. The
County Judge contemplates announcing for one of
the District Judge offices here. Under Artlole
16, Section 65 of the Texas Constitution, as
amended November 4, 1958, this action of the County
,Judge would constitute a resignation from the
office of County Judge.
"The Commlsaioners Court then,wants to know
whether,they can legally; after the announcement
for Dlstlrlct .JuQe, appoint the incumbent ,County
gtresorlbed by, law, to fill
Jubge,~~ih thd ~i@e#!nqr~
~~the,ve&nag o.Wited by hid own reislgnation and
,serve untI.l~hie 8uccesaoY? has qua&lfled,for the
omice *
"The speclffc proposition, 'therefore, submitted
tb you Is as follows:
,. ”
Honorable Burney Walker, page 2 ‘(W-788)
” ‘Where’an’ elected off lclai resigns, either
voluntarily or auto&&zally,by operatldn of law,
as the result of becoming a .oandldate for another
office of profit or, thrust,’ under, the laws of this
state; and the’unexplred’ term of the offici ,beltig “<
vacat,ed exceeds one .year, may .he be app,olntedi In
the manner prescribed by law,~ to fill the vacancy
~.?re.ati?d,by hl,s own reaignatlon ,and serve urit1.l his
eucceseor has quallf led .for the-‘.Off Ice?’
“Attached ‘herewith 1B ,a ,brlef prepared for the
County Judge by then law firm ‘Or Ml-on and ,Xaley,
,’on’this question. ,’
‘. ‘X ,coneur and agree with the .rei<, reached by
Ml&on ana :%ley,‘.and-‘1 hive bbeti.able to find no
t pr~hlbltldti, under ‘Pcxae law,s, ,‘:whlhh would prevent,.
th6 r&&ppolntm&nt’ :iti ‘question. .,
“It would be greatly appreofated If we cbuld
h&e your department’s opinion in thj..s connection
at youp earliest convehlence.”
The .provFsfon In Artlclk XVI, 8ebtlo.n 65, of the Texas
C&ititutlOn which Is here.inv@ved was added by an imendment
proposed by the’ Leglslatu,re, In ~1257
and, idbpted ,in, 19%. It ‘,
reads as follows:
“Provided, however,, If any if’ the ..&ficere
named,hereln shall announce their Candidacy, ‘or
shall in fact become. a candidate, ,ln any General, .,
~. Special or Primary ~El6otlo~,~.for~~~ office of
profit ?r trust under the laws ,Of ,,thls State ,oti
:. :,. the, United State6 other ‘than the ~office than held,
at any time when th;d uni%p$.red t&r&of the office
.ttie~h held shall’ exoe?d one ‘(1) year, ,@uch announoe-
ment oreu,ch dandldaay shall oanetltute an automatic
resignation of the office,then he&d; ‘and the vacancy
thereby ore&ted shall be fllled.Duosua,nt to law in
the ‘aa% manner aa mother.vaca;n&s for suoh office
are filled.” .~,‘. ,,j
Thti answer .to’your queetloii tui&&the puspose of this
provision) atld speclflOal&y whether it wad Intended to make ‘the
resigning officer. %nellglble’to serve ln’,tbat .,offlce while he
was a candidate for anotheli’ office., A~eonstltut%onal provision
of doubtful meaning, should be construed with a view to ascer-
taining and carrying out the purpose foti which It was Intended,,
:., ‘. ,,
HOhirable B&me; Walker, page'3 (v-'@B)'~
having regard to the "evils sou ht to be remedied."
In@.. co. v. Warstill 124 Tex
~pkowslcg v. Newman ‘134 Tex a&” !~6s’~w~2~d1% {igy
mls ,provlslon doessnot In e&es; terms'mke the resignkg
officer lnellgfble to appointment to fill the vacanoy;but we ,
are of the opinion' that it should be so oonstrued if Ons pur-
pose of the amendmbnb wa8 to prevent. the officer from holding ',
) the.,office during oandibaoy:for another office. a
A review of the background of this provision is essential
to an as&ertalnment of its purpose. aBy conatltutlonal amend-
ments adopted in 1954, the terms of certain oounty and district
officers were Increased from two years to four years0 and the
terms were staggered so that appraxlmately one-half of the
offices are tiegularly filled by eleotlon every two years.
Under this new.arrangement, It was possible for an officer to
ruri for another offfce.ln the middle o? hi,8 term without re-
llnqulshing the offlae he then held. X$ he was not elected to
the other office, 'he continued to hold the office to which he
had been previously elected; if he was elected to the other
office, his~acceptanoe of that office oreated a vacancy of two
years In the offLce he formerly held,,and the vacancy had to be
filled by appointment until the next general election. The
effect of election to the othe,r office was to turri an elective
office Into an'appointlve office for ap r~oxlmately half the
term (and in practical effect for a fu&!l two years); a result
which 1s contra,z!y to the often-expressed 'concept that elective
offices should be filled by the people rather than by appolnt-
ment and that the offlce,should be returned to the people for
filling as soon ads practieabbe after a,vaoancy occurs. In our
opinion, one purpose of the 199 amendment was to reduce the
duration of appofntmente;s Under this amendment* there Is still
a vacancy which must be filled by appointment from the date of
the resignation Until the, following general election, but the
length of the time for which the appointee serves will in moat
instances be considerably less than for a vacancy occurring
after then election. Appointment of the resigning offloer'to
fill the~.vaeancy izntfl the next general eleotion would not be
Inconsistent with thla purpoeep and 'if this were the only pur-
pose of the amendment we would hold that he ooUld be appointed
to, fill the vaoanoy,. The brief which you furnished us reaohes
the conclusion that this is the only pkpoae of the amendment
and thst the 'officer could be appointed to fill the vacancy.
However9 we are convinced that the Legislature also had another
purpose in mfna when it proposed the amendment and that the
people general~l.yso understood when they adopted it,
Unfortunately, the Texas Legfslature doe8 not preserve
an offfclal rcoord of eommlttee hearfnge and floor debate8 and
Honorable,Burney Walker, page 4 (Ww-788)
discussions. There Is nothing In the legislative journals and
other official records to give a' clue to ,the purposes of ,the
amendment beyond,the,wordlng of the~amendment:itself; But as
_~ to likely' lnt&tit':~Of'.the :Legl~slature-~"and,,.the~und~erstandl.ng~atid
Intent of the~,eX~Ctoi?ate~~conce~nlngS~s~~meanin~~and puti age, :
We have found,ttiat 'in $he~,numerous fiubllq dls'cusa~dns'd,,~.the~ :,
amendment prlor~ t,q ,ttie ,1958 'eletitlon':~thc, @ommen$atorsi~',Oon.blsteqtly
': ment~loned~that. done,of. ~ttie' purpcisea. was,.:tO :prevent~'an~~,offlc,e
'~holder.:from,devOt,ing more~thati the.la&yezir Of:hi.s'.four-year,
".~ term of~offi,~e~~to,a~~politlc~l campaign for another office. The
followi&' excerpts,lllustrate the, nature of these co&m&fits.,
Dallas Newsi ~,Ootober”17, ,:1958: .~~ ': ~.,',: ~,', .,:,
.
Cdnstitutional.:‘change,.,,aS, -1954, ',:w&b.~b::ii&& .it 1': A :, :
po,~s’s@iJ.e~~~~$6r,d.otitit~(~ffl~ers::to::d~~~ts~‘al~~st~:, : ‘~ .: ~.~i
thelr~'entlre't;;e,rms,~~b duties of,.,Office. Under
the: 2-year term.'sys$em, they had, to, ruti fo,r ~~
,I~'Pe-eM3$o'n one year, out of ,'.eyery two. "~' ,: ..
.'
oVer$ooki?d-&such. ~off’io.e: hr&%irs‘:‘.OdiiI@ru~,“fo.@ ,. ,~t ‘.,
other :offl%es In the’ middle bf ~~ttieir terms,.,: .'
,.
"The .new i&e,'lf 'agproved,'by~voters, would
tend to force office holders tq,glve~undlvid&d
attention to;hiS .office., for Eit,~leiSt three"gear8, ~~ ~,
of a faur-year t,erm. " " i ',,, .'
., .:,. ..~
', Houston Chroni&, &&ber 8,,~$@ -Is: ':'. .:,::,/,',~y~I
." ".-~,',~
"T~heprimary pus$osei ~of':'8&tin& up fb&&ar :.
terms~,for lo'cqil officer8 tiae,,go,:‘en&blt! WeaL to:’ :, >
devote mor,q time, to offloqdtiti&8 ,.than.',wae",possl-.,,~,'
‘, ~ble-dor ,expedieht--wheti ~.the$.~~d:~;tp:Suti:~$b~''pe-
,eJectlo,$ every, two'years.~. It. wati.the $@islatiir~!a
idea,~ In. su‘bmi$+-ig Amendmetit'NQ'.",4 .that~ %iaving ',.
open the.’.Oppo,titu$l,t$ to,’rtin’Pby some.~dth&r office, ~’ ‘. .~
~,~
” ‘~“at ,qL+-$e,rij ,woUld $aftly ~,dtjfeat tihat~‘.ptiti$oae.”
.,,’ ,.
‘. F@@ort; prepared by T&x Research Association of
.tiouston, and Harris County, Inc. :
.;,;.,~
‘. ‘.’
. !lhen~ the, &n<i&;ai: g~e&fn&t’, &$e&ing ,,’
t,he:'t'em of various qoutity .OtiPid$al,& f&m't&'~tO ' ,:~'
,, .,
~(. ',
Honorable Burney Walker, page 5 (~~-788)
four years was adopted In 1954, It was the con-
ception that the longer terms of office would’
reduce time spent In running for election and
would allow county offfcfals to concentrate .on
their jobs. That is, a four year term, it was
thought, would permit fan oPfl.ciaS to ,glve.his
office his undivided attention f,or at. least three,
years., without, the necessity .of running again.
“Because, under the ,provlsions of the 199
ame’idment;, approximately half of,the, officers of
each county areelected every tvjo~~.
yeara:,for,~fbriti ,,‘,
year’terms,, .lt 1s possible f,Or. an officer ‘to run .’
for, a different: office at the general election
coming in the micjdl’+ ,of his term and thereby d,e-
feat the baelc purpose of the. 1954 iunendment.
This ,new amendment would require the offlc’ial to
resign before~ announcing for some other’office
and thus prevent him from campa~gnlngfor anbther
office and preaumbly ,neglectihg .tq adequately
fulfill the dQtie% of the off&c& .$o~.whloh he,~was
previ~ously”ele&ed;” ” “.
Bulletin prepared ,by, League of Women.Voters. of Texas:
?h&& : titao’?Se”F,@R,@e’ ,$mi$ndrn&td sa$ :,
“The ,automati& .~reslgnatlon feature would
keep. theee officials on t.he job rather than
campaignfng fck a different offl.ce at tal-
payers 1 expense, with, then ,resultant, loss of
servf.ce s
“Unde’r present’, provisions a candidate may wait
to resign f.rom one office until the last minute
before being sworn In for another. This pr&tlce
la not fair t,o the people for, It then ‘,leaves an
unexplred:term to, be filled by a costly speolal ‘,
elections or by appol$nei?t : !’
.’ .;
While these private, un6ffloial l&er$retatlbns are not
conclusive of the, Intent and purpose of the,amefidinent, they give
an Insight into ,the $revallfng conception of the ,“evll sought to
beg rem&die&! bye‘the amendmentO This ,puPpose~ o$ seeking to, limit
polltloal. activity to the last year ,of .the: four-yea? term also
furrilshea ‘an e%planation of. low, ,th&:,&&etidment,‘provide& for auto-
matlc reslgnat,ion if the officer ‘becomes a candidate for another
Honorable Burne Walker, page 6 (W-788)
offlc'emore than one year before expiration of his term rather
than tying the resignation to the length of the unexpired
portion of the term after'the election at which he Is a candi-
date for another office.
As further substantiationof this purpose, another con-
stitutionalamendment proposed by the same Legislature and
adopted at the same election as the 1958 amendment to Section
65 of Article XVI, also contains a similar provision for auto-
matic resignationof municipal officers holding terms of more
than two,years. Texas Constltution,'Artlcle XI, Section 11,
adopted November 4, 1958, This provision with respect to munlc-
ipal officers cannot be satisfactorilyrationalizedon the ground
that its sole purpose was to reduce the appolntive tenure or to
eliminate the expense of a special election which would result
from the officer's election to another office, but It comp,orts
withthe purpose to prevent the off,lcerfrom engaging in a
political campaign for another office at any time except the
last,year of his term,
To permit an officer who Is running for another office
in the middle of his term to be reinstatedIn the office by
appointmentafter his resignationwould defeat this purpose
of the amendment. Being convinced that this was one of the
purposes, we hold that he may hot be appointed to fill the
vacancy created by his resignation. *
In the brief wh1c.hyou furnished us0 it was stated that
the only comparable statutory enactment or constitutionalpro-
vision that the author had been able to find Is a Montana
construed in MulhollandV. Ayres, 99 P,2d 234 (Mont.
;$?~;40,. We also have been unable to find any other case
construinga similar provision. The Supreme Court of Montana
summarizedthe statute and Its purpose as follows:
"Section 1 of Chapter116 of the Laws of 1937
provides, In substance,that whenever any person
holding any office under the laws of the state, the
term of which Is longer than two years, shall be-
come a candlda%e for election to any elective
office; other than for re-electionto the office
held byehim, he shall resign the office held by
him, and if he fails to do so the office shall be-
come vacant and unoccupied ipso facto. Section 2
provides for filling such vacancies. Section 3 pro-
vides: 'This act shall not apply * * * .(e)to the
incumbent of any office whose term of office expires
within (70)seventy'daysafter the ensuing general
election.
,
\
1
: *
Honorable Burney Walker, page 7 (~~-788)
“The question presented Is whether there la
now’s vadanog In the office of state senator for
SilVer Bow county. In.conaiderfng this question
we must look flrst’to the object and purpose of
the Act and the evil sought to be remedied by It.
It Is plain %h@t the purpose of Chapter 1.16 18 to
encourage the Pilling of vacancies by election,
rather than by appointment; bg reducing the du-
ration of appointments and to,dlscourage a person
already holding one office carrying more than a
two-year term and the’term of which would not ex-
pire until more than seventy days after the ensuing
general ilectlon, Srom retaining that office while
endeavoring to,obtaln another at auoh election.
The effect of chapter 116i?‘to eauae a vacancy to
exist in time 80 that. it can be filled by eJectIon
at the same election which causes the vacancy, and
making the Interim appointment of .short dtiratlon.”
The court construed the statute aa havlngsas one of Its
I, purposes the reduc,tion of ‘duration of appointments, but it also
Sound that another purpose was to dlacourage the office ho,lder’
from retaining the office while endeavoring to obtain another.
The question of ellglbility,for ,appointment to fill the vacancy
. wa8 not involved In that case. Whether the court would have
used the WoPd “prevent ” instead of “discourage” if that ques-
tion had be’en presented is oonjectural, but at least ft can be
seen that the,couz% considered retention of the office while
seeking another.& one of the evils sought to be remedied.
In thfa opinion we’are not passing on the constitutionality
of the 1958,amendmentatto Section 65, of Article XVI with regard
to posafble,inf?action OS the equal protection clauee of the
14th Amendment ~to the United States Cdhstitution, or other
poaslble constitutional objections ~whlch might be leveled.against
it. We recognize that this requirement of automatic resignation
Imposed on ofS%cers covered by Sectfon 65#when there Is no
‘comparable prqvi.slon applicable to district and appellate jud~ges
and other dfetrlet and state officer8 having terms OS four or
81x years, .and various ,other phaees of It.8 application as conk
etrued In this opinion, raise a poetifbility of ,invalidity under
the Federal Constitution. Seq, e.g., Mulholland v. Ayres, supra;
Burrougb B v. Lylea, 142,Tex. 764,,~ 1.81 3 W 24 ~(0 (1944) But we
a0 not f 1 th t it fs neceesary Sor ua’t: pass ins Its ionstltu-
tlonallt~ln a&werlng your question, We are mentioning possible
Invalidity, not by way oS~intimatl,ng that we think it is invalid
under the Federal’ Constltutfon, but because the brief which you
Honorabl6 Burney Walker, page 8 (W-788)
furnished ua has suggested that lt,would. be Invalid If the
OfficeF is lnel&glbJe fork appointment. We do not think it is,
Incumbent upon the Commis.aloners court to obtain a ruling on
its constltlltiohallty before making an appointment In the
event theG+mty Judge beiximes a dandldate'for the other office.
Bquaf protectXon.ls 8 Iprivate right tb b6 asserted by the indl-
vldu&l,who, alB,Uns'to have'been deprived of It. If the County
Judge beoam@ a 'aandldate ,for the other office and &t the same
time lnsieta that-he is entitled tb continue 3i.nhis present
office, he nil1 have rqqourse to the courts to protect whatever
fight he @Lght haoe,to tha'offlae~against the adverse alald tf
the Commleelonere Coq?tls ap?oLntee.
.'
This opinion Is limited to eligibility for Bppolntment
where there is more than one year remaining lnthe unexpired
term of the reslgnlng officer. It does not~rule on whether he
would,be eligible, for appointment, ii the unexplred,term was
less than one year when the appolntment~was made.
SUMMARY
A County Judge or other precinct, county ore
district offlcer'llsted In Article XVI, Section
65 of the ,Texas Constitution who voluntarily re-
signs his office to become a Candidate for another
office or who automatically resigns hi.9 office by
becoming a candidate for another office as pro-
vided In Aptlale XVI, Section 65, la not eligible,
during such cand.ldacy, for appointm'ent to,flll the
vamnay~oreated by his resignation where there Is
more than one gear remaining in the unexpired term
of.,the office from which ,he resigns.
Yours very truly,
WILT+ WILi3QN
Attorney General, of Texas
* .. .
Honorabl~.Burney Walker, page .9 (W-788)
APPROVEDz
OPINION COMMIT
W. V. Geppert, Chairman
Cecil C. Cammack, Jr.
James R. Irlon,, III
Elmer MaVey.
C. K. Rlahddds
REVICEWH)::
FOR THE ATTORNEY
GENERAL.
BY:
Leonard Pessmore