Does a Texas county commissioner automatically resign just by showing interest in running for another office?

TX AG Opinion GA-0769: Did a county commissioner automatically resign by showing interest in another office?

Plain-English summary

The Texas Constitution has a "resign-to-run" rule. Under article XVI, section 65, certain officeholders, including county commissioners, automatically give up their current office if they "announce their candidacy" or "in fact become a candidate" for another office, as long as more than a year is left in their current term. The Comal County Criminal District Attorney asked the Attorney General to apply that rule to a county commissioner whose term ran through the end of 2012. The request letter came with a stack of affidavits, letters, filings, and news clippings, all pointing in different directions, about the commissioner's reported interest in becoming a Texas Railroad Commissioner. The two questions: had he become a candidate in fact, or had he announced his candidacy?

On the first question, the opinion relied on the office's settled rule that an officer "in fact become[s] a candidate" by formally applying for a place on the ballot. The facts in the request did not show the commissioner had applied for a place on any ballot, so the opinion concluded the facts did not establish that he had become a candidate in fact.

On the second question, the opinion explained how prior opinions define an "announcement": a written or oral public statement from which a reasonable person could conclude the individual intends, without qualification, to run. But applying that standard here ran into a wall. The facts were not undisputed; the materials revealed a pronounced disagreement about what was said, what was done, and the circumstances. Because the Attorney General does not find facts or resolve fact questions, and answers only questions that can be settled as a matter of law, the opinion concluded it could not determine whether the commissioner had announced his candidacy. It did not answer that question.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG 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.

Article XVI, section 65 and the Election Code definitions discussed here may have been amended or further construed since 2010. Confirm current law before relying on anything below.

Who this opinion affected (as of 2010)

County commissioners and other resign-to-run officers: The opinion restated the office's view that becoming a "candidate in fact" requires formally applying for a place on the ballot, and that an "announcement" must be both certain (unqualified) and public to trigger automatic resignation.

Prosecutors and local officials raising resign-to-run questions: The opinion described the limit on what an AG opinion can do: where the operative facts are disputed, the office will not decide whether a particular statement amounted to an announcement of candidacy, because that is a fact question.

Journalists and the public following the dispute: The opinion explained that mere expressions of interest, or contingent statements (for example, that a person will "seriously consider running" if an incumbent resigns), generally do not trigger the resign-to-run provision; an unqualified public statement of intent to run does.

Common questions

What triggers automatic resignation under the Texas resign-to-run rule?
Under article XVI, section 65, announcing candidacy for another office or becoming a candidate in fact triggers it, when more than a year remains in the current term.

What counts as becoming a "candidate in fact"?
Per the opinion, formally applying for a place on the ballot. Because the commissioner had not done that on the facts presented, he was not a candidate in fact.

Why didn't the AG just decide whether he announced his candidacy?
Because that depended on disputed facts. The opinion stated that the Attorney General does not find facts or resolve fact questions and answers only questions that can be decided as a matter of law, so it could not determine whether an announcement occurred.

Does saying you might run for office force you to resign?
According to the opinion, no. A statement merely indicating interest, or one contingent on a future event, generally does not trigger the provision; the announcement must be unqualified and public.

Background and statutory framework

Article XVI, section 65 of the Texas Constitution provides that listed officers, including county commissioners, automatically resign their current office if they "announce their candidacy, or shall in fact become a candidate" for another office when the unexpired term of the current office exceeds one year (Tex. Const. art. XVI, § 65). Prior opinions establish that an officer becomes a "candidate in fact" by formally applying for a place on the ballot, and that an officer "announces" candidacy by a written or oral public statement from which a reasonable person could conclude the officer intends, without qualification, to run. A statement indicating interest, or one contingent on another event, generally does not trigger the provision.

The opinion noted that section 251.001 of the Election Code broadly defines "candidate," with examples of affirmative action such as filing for a place on the ballot or announcing a candidacy, but that this definition applies for purposes of title 15 (regulating political funds and campaigns) and, per a prior opinion, does not control the construction of article XVI, section 65 (Tex. Elec. Code Ann. § 251.001(1) (Vernon Supp. 2009)). Because the facts in the request were disputed, and the Attorney General does not resolve fact questions, the opinion answered the candidate-in-fact question (no) and declined to answer the announcement question.

Citations

Statutes:

• Tex. Const. art. XVI, § 65
• Tex. Elec. Code Ann. § 251.001(1) (Vernon Supp. 2009)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0769
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2010/ga0769.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

April 13, 2010

The Honorable Geoffrey I. Barr
Comal County Criminal District Attorney
150 North Seguin Avenue, Suite 307
New Braunfels, Texas 78130

Opinion No. GA-0769

Re: Whether a county commissioner has announced his candidacy or become a candidate in fact for election to another office, thereby automatically resigning the office of county commissioner by virtue of article XVI, section 65 of the Texas Constitution (RQ-0836-GA)

Dear Mr. Barr:

Under article XVI, section 65 of the Texas Constitution, certain officers, including county commissioners, automatically resign their current office if they "shall announce their candidacy, or shall in fact become a candidate" in an election for another office when the remaining term of their current office exceeds one year. TEX. CONST. art. XVI, § 65 (the "resign-to-run provision"). You ask about the application of that provision to a Comal County Commissioner, whose current term of office expires December 31, 2012. Your request letter includes numerous affidavits, letters, filings, newspaper accounts and internet printouts that contain conflicting information about a county commissioner's purported interest in the office of Texas Railroad Commissioner.[2] You specifically ask whether, by various statements and actions described in the request letter, the county commissioner (1) has become a candidate in fact for the office of Texas Railroad Commissioner or (2) has announced his candidacy for that office, thereby automatically resigning his office as county commissioner under article XVI, section 65. Request Letter at 9.

The automatic resignation provisions of article XVI, section 65 may be triggered by either announcing candidacy for another office or becoming a candidate in fact for another office. TEX. CONST. art. XVI, § 65; Tex. Att'y Gen. Op. No. GA-0643 (2008) at 3-4. For article XVI, section 65 purposes, this office has determined that "[a]n officer 'in fact become[s] a candidate' by formally applying for a place on the ballot." Tex. Att'y Gen. Op. No. GA-0210 (2004) at 2; accord Tex. Att'y Gen. Op. No. JC-0249 (2000) at 3.[3] Your recitation of facts does not suggest that the county commissioner has applied for a place on any ballot to run for another office. Consequently, in answer to your first question, we conclude that the facts you describe do not establish that the county commissioner has become a candidate in fact under article XVI, section 65 of the constitution.

Your second question is whether, from the facts you have described, the county commissioner has announced his candidacy for another office, resulting in automatic resignation under the constitution. Relying on the generally understood meaning of article XVI, section 65, this office has previously 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. No. GA-0643 (2008) at 6; accord Tex. Att'y Gen. Op. Nos. GA-0210 (2004) at 2, JC-0249 (2000) at 2. The word "announce," as used in article XVI, section 65 indicates that the statement must be public. Tex. Att'y Gen. Op. No. GA-0210 (2004) at 2 (citing WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY 87 (9th ed. 1990) for its definition of the word "announce" as meaning "to make known publicly"). Thus, under prior opinions of this office, an announcement must be both certain and public in order to trigger automatic resignation. Tex. Att'y Gen. Op. No. GA-0210 (2004) at 2. Generally, a statement "indicating interest in an office that falls short of announcing a candidacy . . . does not trigger the resign-to-run provision." Tex. Att'y Gen. Op. No. JC-0249 (2000) at 4. See also Tex. Att'y Gen. LO-95-071, at 2 (determining that the statement that a person will "seriously consider running" for an office if the incumbent resigns is not an unqualified statement that may trigger automatic resignation of the person's current office). Also, a person's statement concerning another office must be viewed in context to determine if it constitutes an unqualified announcement of candidacy for that office. Tex. Att'y Gen. Op. No. JC-0249 (2000) at 4 (determining that merely seeking a party's executive committee's nomination to run for another office is not sufficiently certain to constitute an announcement of a candidacy under article XVI, section 65, because "the person's candidacy in the general election is entirely contingent on obtaining the executive committee's nomination"). By contrast, a person's unqualified statement made in a public meeting or press release that the person intends to run for a particular office constitutes an announcement of candidacy for article XVI, section 65 purposes. Id.

Prior attorney general opinions have considered whether a person's undisputed statement or action constitutes an announcement of candidacy that triggered automatic resignation under the constitution. See, e.g., Tex. Att'y Gen. Op. Nos. GA-0210 (2004) at 3 (determining that a justice of the peace who stated privately that he would be a candidate for another office did not thereby announce his candidacy under the constitution), DM-377 (1996) at 1-2 (county court at law judge's statement at a commissioners court meeting that he was "at that moment" a candidate for another office was an announcement of candidacy that constituted automatic resignation of the current office). The facts you relate in your request letter, however, are not undisputed. To the contrary, the facts as described reveal a pronounced disagreement about the content of statements made, actions taken, and the circumstances in which they occurred. Consequently, we cannot determine as a matter of law whether the county commissioner has announced his candidacy for another office, thereby automatically resigning his current office. See Tex. Att'y Gen. Op. No. GA-0643 (2008) at 7 n.4 (explaining that "[t]his office does not find facts or resolve questions of fact; thus, attorney general opinions ordinarily answer only questions that can be answered as a matter of law").

SUMMARY

The facts as presented in the request do not suggest that the county commissioner has applied for a place on the ballot for another office. As a result, they do not establish that he has become a candidate in fact under article XVI, section 65 of the Texas Constitution.

The facts presented in the request indicate a pronounced disagreement about the content of statements made and actions taken by the county commissioner as well as the circumstances in which they occurred. Consequently, we cannot determine as a matter of law whether the county commissioner has announced his candidacy for another office, thereby automatically resigning his current office.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

ANDREW WEBER
First Assistant Attorney General

JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee

[Footnote 1: See Request Letter at 1 (available at http://www.texasattorneygeneral.gov).]

[Footnote 2: Id. (Exhibits A-O).]

[Footnote 3: As you note, section 251.001 of the Election Code broadly defines "candidate" as a person who "takes affirmative action for the purpose of gaining nomination or election to public office," or for the purpose of satisfying campaign financial obligations. See Request Letter at 7 (citing section 251.001(1) of the Election Code). The statute gives several examples of such affirmative action, such as filing for a place on the ballot, announcing a candidacy, or soliciting support or campaign contributions under certain circumstances. TEX. ELEC. CODE ANN. § 251.001(1)(a)-(h) (Vernon Supp. 2009). However, section 251.001 expressly defines terms for purposes of title 15 of the Election Code, "Regulating Political Funds and Campaigns." In Attorney General Opinion JC-0249, this office determined that section 251.001's definition of the word candidate for those particular statutory purposes does not control the construction of article XVI, section 65, regarding automatic resignation. Tex. Att'y Gen. Op. No. JC-0249 (2000) at 5.]