Does a Texas justice of the peace automatically resign by running for city council?

Texas AG Opinion JM-395: JP Resigns by Running for Council

Plain-English summary

A justice of the peace in Precinct Three of Lipscomb County ran for the city council of Follett, a general law city, won the seat, and started serving. He still had more than a year left on his justice-of-the-peace term when he announced his candidacy. The county attorney asked the Attorney General whether that move cost him the JP office, and, if so, whether other rules also barred him from holding both jobs. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0395.pdf

The Attorney General answered that he lost the JP office automatically. Article XVI, section 65 of the Texas Constitution lists justices of the peace among the officers subject to its resign-to-run rule: if one of those officers announces for, or becomes a candidate for, another office of profit or trust while more than a year remains on the current term, the announcement itself works as a resignation. A city council seat is not an office of profit here, because Follett's council members serve without pay, but the AG concluded it is an office of trust. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0395.pdf

To reach that, the AG used the long-standing Texas test for a public office: a position that invests a person with some portion of the government's sovereign functions, to be exercised for the public benefit. A general law city council fits. It passes ordinances, exercises zoning power, and regulates public health, streets, taxation, and licensing, all sovereign functions, and its members are elected for fixed terms and exercise powers set by law rather than by contract. So announcing for the council, with more than a year left as JP, automatically vacated the justice-of-the-peace office. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0395.pdf

Because the JP office was already gone, the AG did not reach the other two questions. It declined to decide whether the separate dual-officeholding ban in article XVI, section 40, or the separation-of-powers provision in article II, section 1, would have barred holding both offices, since there were no longer two offices to hold. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0395.pdf

Currency note

This opinion was issued in 1985. 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.

Common questions

Did the JP lose his office just by announcing for city council?

Yes. Under article XVI, section 65, a justice of the peace with more than a year left on his term who announces candidacy for another office of trust automatically resigns the JP office at the moment of the announcement. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0395.pdf

Why is an unpaid city council seat an "office of trust"?

Because "trust" does not depend on pay. The seat was not an office of profit since the council served without compensation, but it was an office of trust because a council member exercises a portion of the government's sovereign powers, such as passing ordinances and regulating zoning and public health, for the public's benefit. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0395.pdf

How did the AG know a council seat counts as a public office?

It applied the Texas definition of a public office from Kimbrough v. Barnett and used in Ramirez v. Flores: a position investing someone with part of the sovereign functions of government. A general law council's ordinance, zoning, and regulatory powers, plus its fixed elected terms, satisfied that test. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0395.pdf

Why didn't the AG answer the dual-officeholding and separation-of-powers questions?

Because they no longer mattered. Once the AG concluded the individual had already resigned the JP office by operation of section 65, there was no second office to combine, so it did not need to address article XVI, section 40, or article II, section 1. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0395.pdf

Background and statutory framework

Article XVI, section 65 sets staggered terms for a list of officers, including justices of the peace, and adds the automatic resignation clause. The key question was whether the target office, a general law city council seat, was an "office of profit or trust under the laws of this State." Since Follett's council was unpaid, it was not an office of profit, so the analysis turned on "trust." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0395.pdf

The AG grounded the "office of trust" conclusion in case law. Ramirez v. Flores, 505 S.W.2d 406 (Tex. Civ. App. - San Antonio 1973, writ ref'd n.r.e.), held that a county commissioner who became a candidate for school trustee automatically resigned, treating a school trusteeship as an office of trust. That reasoning drew on the definition of public office in Kimbrough v. Barnett, 93 Tex. 301, 55 S.W. 120 (1900), and Lee v. Leonard Independent School District, 24 S.W.2d 449 (Tex. Civ. App. - Texarkana 1930, writ ref'd). The AG noted that the Kimbrough definition remains the accepted test, citing Green v. Stewart, 516 S.W.2d 133 (Tex. 1974). Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0395.pdf

Applying that test, the AG catalogued the council's sovereign powers. A council member of a home rule city holds an office under the state (Willis v. Potts, 377 S.W.2d 622 (Tex. 1964)), and members of a general law city council likewise exercise sovereign powers: enacting ordinances for the government, peace, and trade of the city (V.T.C.S. art. 1011), zoning (V.T.C.S. arts. 1011a-1011j), and regulating public health, streets, taxation, and licensing (V.T.C.S. arts. 1015, 1016). Their terms are fixed and their powers conferred by law, not contract (V.T.C.S. arts. 978, 979; Tex. Const. art. XI, §11). That made the council seat an office of trust, so section 65 forced the automatic resignation and the AG did not reach article XVI, section 40, or article II, section 1. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0395.pdf

Citations and references

• article XVI, section 65 of the Texas Constitution
• article XVI, section 40 of the Texas Constitution
• article II, section 1 of the Texas Constitution
• V.T.C.S. art. 1011
• V.T.C.S. arts. 1011a-1011j
• V.T.C.S. arts. 1015, 1016
• V.T.C.S. arts. 978, 979
• Tex. Const. art. XI, §11
• Ramirez v. Flores, 505 S.W.2d 406 (Tex. Civ. App. - San Antonio 1973, writ ref'd n.r.e.)
• Kimbrough v. Barnett, 93 Tex. 301, 55 S.W. 120 (1900)
• Lee v. Leonard Independent School District, 24 S.W.2d 449 (Tex. Civ. App. - Texarkana 1930, writ ref'd)
• Green v. Stewart, 516 S.W.2d 133 (Tex. 1974)
• Willis v. Potts, 377 S.W.2d 622 (Tex. 1964)

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0395.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0395
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1985/jm0395.pdf

Original opinion text

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

The Attorney General of Texas

JIM MATTOX
Attorney General

December 19, 1985

Honorable Dana Ehrlich
Lipscomb County Attorney
P. O. Box 156
Follett, Texas 79034

Opinion No. JM-395

Re: Whether a justice of the peace may simultaneously serve as a member of a city council

Dear Mr. Ehrlich:

You request an Attorney General's Opinion on the office of Justice of the Peace, Precinct Three, Lipscomb County. The individual who occupies this office announced his candidacy for the city council of Follett, Texas, a general law city. He won a seat on the council, and began serving as a member of the city council. City council members serve without compensation. When he announced his candidacy for city council, he had over one year left on his unexpired term as justice of the peace. You ask the following questions about this series of events:

1. If a justice of the peace who has more than one year remaining of his unexpired term announces his candidacy for office of city council member of the city of Follett, Texas, does such announcement constitute an automatic resignation of the office of justice of the peace under article XVI, section 65 of the Texas Constitution?

2. If the justice of the peace wins the election and takes the oath of office for city council member of the city of Follett, Texas, is such justice of the peace barred from holding his justice of the peace office by the dual office holding provisions of article XVI, section 40 of the Texas Constitution?

3. Would holding both offices violate the separation of powers doctrine in article II, section 1 of the Texas Constitution?

Article XVI, section 65 of the Texas Constitution provides in part:

Sec. 65. Staggering Terms of Office -- The following officers elected at the General Election in November, 1954, and thereafter, shall serve for the full terms provided in this Constitution:

(a) District Clerks; (b) County Clerks; (c) County Judges; (d) Judges of County Courts at Law, County Criminal Courts, County Probate Courts and County Domestic Relations Courts; (e) County Treasurers; (f) Criminal District Attorneys; (g) County Surveyors; (h) Inspectors of Hides and Animals; (i) County Commissioners for Precincts Two and Four; (j) Justices of the Peace.

. . .

Provided, however, 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 (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. (Emphasis added).

A justice of the peace is subject to this provision of the constitution. The issue to be addressed is whether the office of city council member is an "office of . . . trust under the laws of this State . . . ." It is not an office of profit, since you inform us that city council members are not compensated.

In Ramirez v. Flores, 505 S.W.2d 406 (Tex. Civ. App. - San Antonio 1973, writ ref'd n.r.e.), the court determined that a county commissioner who became a candidate for school trustee automatically resigned his office as a commissioner. The court stated that

[i]t is settled in Texas that a trustee of an independent school district holds an office of trust under the laws of this state. Kimbrough v. Barnett, 93 Tex. 301, 55 S.W. 120 (1900); Lee v. Leonard Independent School District, 24 S.W.2d 449 (Tex. Civ. App. - Texarkana 1930, writ ref'd).

505 S.W.2d at 409. The cases relied on in Ramirez v. Flores state that school trustees are public officers. Kimbrough v. Barnett, 55 S.W. 120 (Tex. 1900) relied on the following definition of "office":

Public office is the right, authority, and duty created and conferred by law, by which, for a given period, either fixed by law, or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public.

55 S.W. at 122 (quoting Mechem on Public Officers, §1). The court then enumerated major powers of the school trustees as follows: (1) to adopt rules, regulations, and bylaws, (2) to select officers of the board, (3) to control and manage the schools, (4) to hold title to school property, (5) to sue and be sued, (6) to employ teachers and disburse the school fund. Finally, trustees exercise duties derived from the law itself, not set by contract, and the terms of office are fixed by statute. Id.

Kimbrough v. Barnett stated the definition of "officer" accepted in Texas law today. See Green v. Stewart, 516 S.W.2d 133 (Tex. 1974); Attorney General Opinion MW-415 (1981); see also Attorney General Opinion MW-418 (1981). The Ramirez v. Flores court used the Kimbrough test to determine what constitutes "an officer of trust" within article XVI, section 65. Thus, the individual who holds an office of trust

is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public.

Kimbrough v. Barnett, supra at 122. See also Attorney General Opinions JM-132 (1984); H-767 (1976).

A member of the city council of a home rule city holds an "office under the state." Willis v. Potts, 377 S.W.2d 622, 625 (Tex. 1964) (construing article III, section 19). He engages in governmental activities and exercises a portion of the sovereign powers of the state in matters such as public health, traffic regulation, and keeping of the peace. Willis v. Potts, supra, at 624-25.

Members of the city council of a general law city also engage in governmental activities and exercise a portion of the sovereign powers of the state. The city council may enact ordinances for the government, peace, and trade of the city. V.T.C.S. art. 1011. The city council has zoning power. V.T.C.S. arts. 1011a-1011j. It has various specific powers to make regulations concerning the public health, public peace, control of the streets, taxation and licensing. V.T.C.S. arts. 1015, 1016. See also V.T.C.S. arts. 1140, 1145, 1146 (powers of board of aldermen of general law city incorporated under article 1133, V.T.C.S.). The city council also has authority to establish the powers and compensation of officers where these matters are not established by law. Members of the city council of a general law city are elected for a specific term and exercise powers conferred by law, not contract. V.T.C.S. arts. 978, 979; see also Tex. Const. art. XI, §11.

We conclude that a member of the city council of a general law city holds an "office of . . . trust under the laws of this state" within article XVI, section 65 of the Texas Constitution. In answer to your first question, the justice of the peace who announced his candidacy for city council member when he had more than one year remaining on his term automatically resigned his office as justice of the peace pursuant to article XVI, section 65 of the Texas Constitution. Ramirez v. Flores, supra; Attorney General Opinions JM-132 (1984); H-767 (1976); C-43 (1963). Since we have concluded that the individual in question no longer holds the office of justice of the peace, we need not consider whether the other provisions about which you inquire would bar him from holding both offices. Consequently, we will not answer your second and third questions.

SUMMARY

A member of the city council of a general law city holds an "office . . . of trust under the laws of this State" within article XVI, section 65 of the Texas Constitution. If a justice of the peace becomes a candidate for the city council position when more than a year remains on his term, he automatically resigns his office as justice of the peace pursuant to article XVI, section 65.

Very truly yours,

JIM MATTOX
Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

ROBERT GRAY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General