Can a Texas county bar its employees from running for partisan political office?

Texas AG Opinion JM-521: Employee Partisan Candidacy

Plain-English summary

The Cameron County commissioners court adopted a personnel policy saying that a county employee, other than an elected official, may not be a candidate for elective office in a partisan election. The county attorney asked the Attorney General two things: does the policy bind the staff of other elected county officers, and is it constitutional? Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0521.pdf

On the first question, the AG said the policy reaches only the employees the commissioners court itself hires and fires. The court's power to adopt this kind of rule is an implied one, coming from its authority to employ people to carry out county business and to set reasonable working conditions for them. But other elected county officers (the sheriff, the county clerk, and so on) appoint their own deputies, assistants, and clerks, and a statute expressly bars the commissioners court from influencing those appointments or vetoing them. So the commissioners court cannot force another elected officer to fire a staff member who runs for partisan office, and the policy does not touch those employees. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0521.pdf

On the constitutional question, the AG concluded the policy is not invalid on its face. The U.S. Supreme Court has repeatedly upheld broad restrictions on the partisan political activity of public employees, including the Hatch Act and state civil-service rules, against First Amendment challenges, because the government has real interests in an impartial workforce that administers the law neutrally rather than as a political machine. But the AG cautioned that such a policy can still be unconstitutional as applied to a particular employee or candidacy. Article XVI, section 40 of the Texas Constitution lets a person paid from state funds serve on a local governing body, and federal courts have struck down candidacy bans as applied to specific low-level employees whose candidacy would not harm the government's interests (as in a Dallas case involving a nonsupervisory police officer who wanted to run for city council in a different city). Whether a given application of the Cameron County policy is valid has to be decided case by case. Separately, elected county officers who announce for another office are already subject to the automatic-resignation rule in article XVI, section 65. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0521.pdf

Currency note

This opinion was issued in 1986. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. The county-officer statutes cited here (articles 3902 and 3912k) of the old Vernon's Texas Civil Statutes have been recodified into the Local Government Code, and the constitutional law governing public-employee political activity has continued to develop since 1986. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule mentioned here.

Common questions

Can a commissioners court forbid county employees from running for partisan office?

For the employees it hires, yes. The AG concluded that a commissioners court has implied authority, flowing from its power to hire employees and set reasonable working conditions, to prohibit partisan candidacies by the employees it has authority to hire and fire, where the condition is reasonably necessary to the conduct of county business. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0521.pdf

Does the policy apply to the sheriff's or county clerk's employees?

No. The AG concluded that other elected constitutional county officers appoint their own deputies, assistants, and clerks under article 3902, which bars the commissioners court from influencing those appointments, so the court cannot require those officers to terminate an employee who becomes a candidate. The policy does not affect their staff. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0521.pdf

Is such a ban constitutional?

Not facially invalid, but it can be invalid as applied. The AG concluded that the U.S. Supreme Court has upheld broad bans on public-employee political activity, so the policy is not facially unconstitutional, but that it may be unconstitutional as applied to a particular candidacy under article XVI, section 40 of the Texas Constitution or the First and Fourteenth Amendments, to be decided case by case. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0521.pdf

What about elected county officials?

The policy exempts them, but they face a separate rule. Under article XVI, section 65 of the Texas Constitution, if certain elected county and precinct officers announce for or become a candidate for another office of profit or trust while more than one year remains on their term, that announcement or candidacy is an automatic resignation of the office they hold. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0521.pdf

Background and statutory framework

Elected county officers are exempt from the policy but are subject to article XVI, section 65 of the Texas Constitution, under which announcing for or becoming a candidate for another office of profit or trust, when the unexpired term exceeds one year, is an automatic resignation (see Clements v. Fashing). The commissioners court may exercise powers implied from its express powers as well as those expressly conferred (Canales v. Laughlin; Anderson v. Wood), and has broad discretion in exercising them. Article V, section 18 gives the court powers and jurisdiction over county business as conferred by the constitution and laws, and under that provision the court has implied authority to employ persons necessary to carry out county business (Gano v. Palo Pinto County; Roper v. Hall; Pritchard & Abbott v. McKenna), with some statutes authorizing hiring for specific programs. The authority to hire includes the implied authority to set working conditions (article 3912k governs compensation, expenses, and benefits of county employees), so the court may prohibit partisan candidacies by the employees it hires where reasonably necessary to county business, subject to constitutional and statutory limits (compare Stone v. City of Wichita Falls, where a home-rule charter provision barring a firefighter's candidacy conflicted with article 1269m, § 22).

The court's authority is limited to the employees it hires and fires (Newcomb v. Brennan). Article 3902 provides that district, county, and precinct officers appoint their own deputies, assistants, and clerks, with the commissioners court authorizing the appointments and setting the number and (now under article 3912k) the compensation, but expressly prohibits the court from influencing those appointments; the court has "no legal right to screen applicants or to veto appointments" (Renfro v. Shropshire). So the court cannot require other county officers to terminate an employee who becomes a candidate, and the policy does not reach their staff.

On the federal and state constitutions, article XVI, section 40 has been construed to let a person compensated from state funds be a candidate for a local governmental body, protecting such persons from dismissal under anti-candidacy rules. The U.S. Supreme Court has upheld comprehensive restrictions on public employees' outside political activity against First Amendment challenges (United Public Workers of America v. Mitchell, upholding the Hatch Act; United States Civil Service Commission v. National Association of Letter Carriers; Broadrick v. Oklahoma), recognizing the government's interest as an employer in the efficiency and impartiality of the public service (Pickering v. Board of Education). Even so, such a restriction may be invalid as applied to a particular employee (Wachsman v. City of Dallas; Hickman v. City of Dallas, holding a charter provision invalid as applied to a nonsupervisory police officer who wished to run for city council elsewhere). The AG concluded the Cameron County policy is not facially invalid (Willis v. City of Fort Worth) but may have unconstitutional applications to be decided case by case.

Citations and references

The opinion cited the following authorities. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0521.pdf

Constitutional and statutory provisions:

• Tex. Const. art. XVI, § 65; art. V, § 18; art. XVI, § 40; art. XI, § 5; art. III, § 19
• V.T.C.S. art. 3902; art. 3912k; art. 1269m, § 22

Cases:

• Clements v. Fashing, 457 U.S. 957 (1982)
• Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948)
• Anderson v. Wood, 152 S.W.2d 1084 (Tex. 1941)
• Gano v. Palo Pinto County, 8 S.W. 634 (Tex. 1888)
• Roper v. Hall, 280 S.W. 289 (Tex. Civ. App. - Waco 1925, no writ)
• Pritchard & Abbott v. McKenna, 350 S.W.2d 333 (Tex. 1961)
• Renfro v. Shropshire, 566 S.W.2d 688 (Tex. Civ. App. - Eastland 1978, writ ref'd n.r.e.)
• Newcomb v. Brennan, 558 F.2d 825 (7th Cir.), cert. denied, 434 U.S. 968 (1977)
• Stone v. City of Wichita Falls, 477 F. Supp. 581 (N.D. Tex. 1979), aff'd on other grounds, 646 F.2d 1085 (5th Cir. 1981)
• United States Civil Service Commission v. National Association of Letter Carriers, AFL-CIO, 413 U.S. 548 (1973)
• Broadrick v. Oklahoma, 413 U.S. 601 (1973)
• United Public Workers of America v. Mitchell, 330 U.S. 75 (1947)
• Pickering v. Board of Education, 391 U.S. 563 (1968)
• Wachsman v. City of Dallas, 704 F.2d 160 (5th Cir. 1983), cert. denied, 464 U.S. 1012 (1983)
• Hickman v. City of Dallas, 475 F. Supp. 137 (N.D. Tex. 1979), aff'd mem., 634 F.2d 629 (5th Cir. 1980)
• Willis v. City of Fort Worth, 380 S.W.2d 814 (Tex. Civ. App. - Fort Worth 1964, writ ref'd n.r.e.)

The opinion also cited Attorney General Opinions H-402 (1974), V-110 (1947), H-697 (1975), E-35 (1973), MW-149 (1980), and H-659 (1975), along with two annotations (44 A.L.R. Fed. 306 (1979); 28 A.L.R. 3d 717 (1969)) and one additional case reproduced in the text below.

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0521
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0521.pdf

Original opinion text

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

The Attorney General of Texas

July 15, 1986

JIM MATTOX
Attorney General

Honorable Benjamin Euresti
Cameron County Attorney
974 E. Harrison Street
Brownsville, Texas 78520

Opinion No. JM-521

Re: Authority of commissioners court to prohibit county employees from running for office in a partisan election

Dear Mr. Euresti:

You state that the commissioners court of Cameron County has adopted a policy prohibiting county employees from running for office in a partisan election. This restriction states as follows:

A county employee, other than an elected official, may not be a candidate for elective office in a partisan election. (A partisan election is an election in which candidates are to be nominated or elected to represent a party whose candidates for presidential electors received votes in the last preceding election at which presidential electors were selected.)

Personnel Policies Manual of Cameron County, Texas, § 2.05.

You ask whether this policy is binding on the staff of elected constitutional county officers other than members of the commissioners court. You also ask whether this policy, as applied to all county employees, is consistent with the Texas and United States Constitutions.

We note initially that elected county officers are exempted from this policy. Article XVI, section 65, of the Texas Constitution subjects elected county and precinct officers to the following provision:

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.

See Clements v. Fashing, 457 U.S. 957 (1982).

The commissioners court may exercise those powers implied from express powers as well as powers that the constitution and statutes have expressly conferred upon it. Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948); Anderson v. Wood, 152 S.W.2d 1084 (Tex. 1941). The court has broad discretion in exercising expressly conferred powers. Anderson v. Wood, supra.

Article V, section 18, of the Texas Constitution provides that the commissioners court

shall exercise such powers and jurisdiction over all county business, as is conferred by this Constitution and the laws of the State, or as may be hereafter prescribed. (Emphasis added).

Tex. Const. art. V, § 18. Under this provision, and the statutes defining its powers, the commissioners court has implied authority to employ persons necessary to carry out county business. See, e.g., Adams v. Seagler, 250 S.W. 413 (Tex. 1923); Gano v. Palo Pinto County, 8 S.W. 634 (Tex. 1888); Roper v. Hall, 280 S.W. 289 (Tex. Civ. App. - Waco 1925, no writ). See also Pritchard & Abbott v. McKenna, 350 S.W.2d 333 (Tex. 1961). In addition, some statutes authorize the court to hire employees to implement specific programs. See, e.g., V.T.C.S. arts. 3912l; 6702-1, §§ 2.002(b)(2), 3.101.

The court's authority to hire employees includes the implied authority to establish working conditions for them. Attorney General Opinions H-402 (1974); V-110 (1947). See also V.T.C.S. art. 3912k (statute governing compensation, expenses, and benefits of county, precinct, and district employees). We believe the commissioners court may prohibit partisan political candidacies by the employees it has authority to hire, where this condition is reasonably necessary to the conduct of county business. The court's authority is subject to constitutional and statutory limitations. Cf. Stone v. City of Wichita Falls, 646 F.2d 1085 (5th Cir. 1981) (home rule city charter provision prohibiting fireman's candidacy for elective office was inconsistent with section 22 of article 1269m, V.T.C.S., and therefore invalid under article XI, section 5, of Texas Constitution).

We turn to the first question -- whether the policy applies to the staff of elected constitutional county officers, aside from members of the commissioners court. We have determined that the court's implied authority to adopt this restriction is based on its authority to hire employees and establish reasonable working conditions. Necessarily, it may impose this condition only on the employees which it has authority to hire and fire. See Newcomb v. Brennan, 558 F.2d 825, cert. denied, 434 U.S. 968 (1977) (city attorney could dismiss deputy who announced his intention to run for Congress).

Article 3902, V.T.C.S., provides that district, county, and precinct officers shall appoint their deputies, assistants, and clerks. The officer must apply to the court for authority to appoint such personnel and the "court shall make its order authorizing the appointment of such deputies, assistants and clerks . . . and determine the number to be appointed. . . ." V.T.C.S. art. 3902. The court also establishes the compensation for each position, formerly under article 3902, V.T.C.S., and other specific statutes and now under article 3912k, V.T.C.S. Attorney General Opinions H-697 (1975); E-35 (1973); see Renfro v. Shropshire, 566 S.W.2d 688 (Tex. Civ. App. - Eastland 1978, writ ref'd n.r.e.). However, article 3902, V.T.C.S., expressly prohibits the court from attempting "to influence the appointment of any person as deputy, assistant or clerk in any office." The commissioners court has "no legal right to screen applicants or to veto appointments" made by county officers. See Renfro v. Shropshire, 566 S.W.2d 688 (Tex. Civ. App. - Eastland 1978, writ ref'd n.r.e.).

The commissioners court has no power to interfere in the hiring decisions made by other county officers; therefore, it may not require those county officers to terminate an employee who becomes a candidate for partisan political office. This policy does not affect the employment decisions of elected constitutional officers other than members of the commissioners court.

We next consider whether the commissioners court may constitutionally apply the policy to the employees it has authority to hire and fire.

You do not identify any Texas constitutional provisions which you wish us to address. Article XVI, section 40, of the Texas Constitution may be relevant to the court's policy. This provision states in part:

State employees or other individuals who receive all or part of their compensation either directly or indirectly from funds of the State of Texas and who are not State officers, shall not be barred from serving as members of the governing bodies of school districts, cities, towns, or other local governmental districts; provided, however, that such State employees or other individuals shall receive no salary for serving as members of such governing bodies. (Emphasis added).

Tex. Const. art. XVI, § 40. The quoted language has been construed to authorize an employee compensated from state funds to be a candidate for election to a local governmental body. Attorney General Opinions MW-149 (1980); H-659 (1975). See also Stone v. City of Wichita Falls, 477 F. Supp. 581 (N.D. Tex. 1979), aff'd on other grounds, 646 F.2d 1085 (5th Cir. 1981). Such persons are protected from dismissal under statutes and regulations prohibiting political candidacies by public employees.

We turn to the validity of such policies under the United States Constitution. The United States Supreme Court has upheld comprehensive restrictions on the outside political activity of federal and state civil service employees. United States Civil Service Commission v. National Association of Letter Carriers, AFL-CIO, 413 U.S. 548 (1973); Broadrick v. Oklahoma, 413 U.S. 601 (1973); United Public Workers of America v. Mitchell, 330 U.S. 75 (1947). These judicial decisions considered extensive statutory prohibitions on public employee's participation in political activities and upheld them against challenges on first amendment grounds. See also Wachsman v. City of Dallas, 704 F.2d 160 (5th Cir. 1983), cert. denied, 464 U.S. 1012 (1983); Hickman v. City of Dallas, 475 F. Supp. 137 (N.D. Tex. 1979), aff'd mem., 634 F.2d 629 (5th Cir. 1980); Annot., 44 A.L.R. Fed. 306 (1979); Annot., 28 A.L.R. 3d 717 (1969).

In United Public Workers of America v. Mitchell, the Supreme Court upheld the Hatch Act ban on political activities of federal employees. The court concluded that the employee's first amendment right to engage in political speech and activity was subject to regulation within reasonable limits to protect the competency and integrity of the public service and to maintain authority over its discipline and efficiency. United Public Workers of America v. Mitchell, supra, at 102.

In United States Civil Service Commission v. National Association of Letter Carriers, AFL-CIO, 413 U.S. 548 (1973) the Supreme Court referred to the balance to be struck between the employee's interests as a citizen in commenting on matters of public concern and the government "as an employer, in promoting the efficiency of the public services it performs through its employees." 413 U.S., at 564 (quoting Pickering v. Board of Education, 391 U.S. 563, 568 (1968)). The court identified the governmental interest in having its employees administer the law in accordance with the will of Congress rather than the will of a political party, in avoiding the appearance of partisan bias in administering the law, and in preventing the use of a government work force as a political machine. 413 U.S. at 564-65. A related interest was to make employment and advancement in government service not depend upon political performance. 413 U.S. at 566.

In Broadrick v. Oklahoma, 413 U.S. 601 (1973) the Supreme Court determined that Oklahoma's restrictions on political activities of the state's classified civil servants would not be struck down as facially overbroad, even though the statute was directed at political expression "which if engaged in by private persons would plainly be protected by the First and Fourteenth Amendments." It stated as follows:

But at the same time, § 818 [of Oklahoma's Merit System of Personnel Administration Act, Okla. Stat. Ann., Tit. 74, § 801 et seq.] is not a censorial statute, directed at particular groups or viewpoints. . . . The statute, rather, seeks to regulate political activity in an even-handed and neutral manner.

413 U.S. at 616. See also Clements v. Fashing, 457 U.S. 957 (1982) (restraints on political candidacies established by article III, section 19, and article XVI, section 65, of the Texas Constitution have a rational basis and may be upheld under traditional equal protection analysis); Wachsman v. City of Dallas, 704 F.2d 160 (5th Cir. 1983), cert. denied, 464 U.S. 1012 (upholding Dallas city charter provisions prohibiting certain kinds of participation by city employees in local elections, including nonpartisan city council elections).

The Supreme Court cases have upheld bans on a broad range of political activities by public employees. However, the possibility remains that such restrictions may be invalid as to a particular public employee. In Hickman v. City of Dallas, 475 F. Supp. 137 (N.D. Tex. 1979), aff'd mem., 634 F.2d 629 (5th Cir. 1980), an employee of Dallas challenged a city charter provision which required him to forfeit his position if he became a candidate for elective office within the county. The court found this provision invalid as violating the first amendment rights of the employee, a nonsupervisory police officer, who wished to run for city council in a different city. Dallas did not show that his candidacy would impair the integrity of city government or the loyalty and efficiency of city employees. Hickman v. City of Dallas, 475 F. Supp. 137 (N.D. Tex. 1979); aff'd mem., 634 F.2d 629 (5th Cir. 1980).

The court examined the city's objectives in adopting the policy. It found that the city's interest in maintaining the loyalty, efficiency and nonpartisanship of its employees would justify reasonable restrictions on the first amendment right of its employees to become candidates for public office:

For example, conflicts might arise if an employee were to challenge his supervisor, or run for mayor or the city council, in a Dallas city election. Candidacy for elective office, whether inside or outside Dallas, by those in managerial or supervisory positions might well create the possibility and the appearance of conflicts of interest.

475 F. Supp. at 141.

Based on the authorities cited, we do not believe the courts would hold the Cameron County policy facially invalid. See Willis v. City of Fort Worth, 380 S.W.2d 814 (Tex. Civ. App. - Fort Worth, 1964 writ ref'd n.r.e.). However, it may be unconstitutional as applied to particular candidacies. Hickman v. City of Dallas, supra. Whether particular applications are invalid must be decided on a case by case basis.

SUMMARY

The commissioners court of Cameron County has implied authority to prohibit the county employees which it hires from running for partisan office. This policy does not apply to the staff employed by elected constitutional county officers. The policy is not facially unconstitutional but may have unconstitutional applications under article XVI, section 40, of the Texas Constitution or the first and fourteenth amendments of the United States Constitution.

JIM MATTOX
Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General