Does a Texas mayor or justice of the peace automatically give up his office by running for a different elected office?

Texas AG Opinion JM-553: Resign-to-Run Rules

Plain-English summary

A county attorney asked about a Crystal City official who wore two hats. He had been a city council member appointed to the (unpaid) office of mayor, with a little over a year left on his mayoral term, and he had filed to run for Zavala County judge. He was also a justice of the peace, and back in March 1985 he had filed to run for reelection to the city council while more than a year remained on his JP term. The questions were whether running for county judge cost him the mayor's office, whether running for city council had cost him the JP office, and whether serving while campaigning created a conflict of interest. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0553.pdf

The AG answered the JP question first. Article XVI, section 65 of the Texas Constitution says that if certain officers, including justices of the peace, announce or become a candidate for another office of profit or trust when more than a year remains on the term they hold, that candidacy is an automatic resignation of the office then held. A city council seat in a home rule city is an "office of trust," because a councilman exercises part of the state's sovereign power. So when this official filed for city council in March 1985 with more than a year left as JP, he automatically resigned the JP office at that moment. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0553.pdf

The mayor's office worked differently. Article XI, section 11 has its own automatic-resignation clause, but an earlier opinion (M-586, the Amarillo mayor case) read it to apply only to city officers whose terms have been lengthened beyond two years under that section. So the answer depends on the mayor's term. If the mayor serves only a two-year term, he is not subject to the automatic-resignation clause and can run for county judge (an office of profit) without losing the mayoralty. If his term has been extended past two years, then running for county judge with more than a year left automatically resigns the mayor's office. The AG added that simply serving as mayor while campaigning is not itself a conflict of interest; whether any specific conduct crosses a legal line depends on the facts and is beyond the opinion. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0553.pdf

Currency note

This opinion was issued in 1986. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. The Penal Code has been recodified since then and the constitutional resign-to-run provisions have been amended. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule mentioned here.

Common questions

Did the official lose his justice of the peace job by running for city council?

Yes. Under article XVI, section 65, a JP who announces or becomes a candidate for another office of trust with more than a year left on the JP term automatically resigns. A home rule city council seat is an office of trust, so filing for city council in March 1985, with more than a year left as JP, automatically resigned the JP office. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0553.pdf

Does a mayor automatically resign by running for county judge?

Only if the mayor's term is longer than two years. The AG read article XI, section 11 (following Attorney General Opinion M-586) to apply the automatic-resignation clause only to city officers whose terms have been lengthened beyond two years. A two-year-term mayor can run for county judge without resigning; a mayor with a longer term automatically resigns if more than a year remains on the mayoral term. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0553.pdf

Is it a conflict of interest to serve as mayor while campaigning for county judge?

Not by itself. The AG concluded that merely holding the mayor's office while running for county judge does not create a conflict of interest. Whether particular conduct would violate any law depends on all the facts and circumstances and was beyond the scope of the opinion. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0553.pdf

Background and statutory framework

Article XVI, section 65 of the Texas Constitution staggers the terms of listed county officers, including justices of the peace, and provides that if such an officer announces or in fact becomes a candidate for any office of profit or trust other than the one held, at a time when the unexpired term exceeds one year, that announcement or candidacy is an automatic resignation of the office then held. The AG relied on Attorney General Opinion JM-395 (1985), which held that a general law city councilman occupies an office of trust under section 65, and extended that reasoning to a home rule city councilman, who exercises a portion of the state's sovereign powers (Tex. Const. art. XI, § 5; Willis v. Potts). The opinion noted, citing Turner v. Trinity Independent School District Board of Trustees, that it was not deciding whether the official's simultaneous service as councilman and JP had been permissible, only whether the candidacy triggered an automatic resignation. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0553.pdf

Article XI, section 11 governs terms of city officers and contains a parallel automatic-resignation clause, but only for officers whose terms have been lengthened beyond two years under that section. Attorney General Opinion M-586 (1970) construed the clause in the case of the mayor of Amarillo, who served only a two-year term and so was not subject to automatic resignation. Applying that reading, the AG concluded the Crystal City mayor's exposure turns on his term length, and noted that a county judge holds an office of profit (Tex. Const. art. V, § 15). On the conflict-of-interest question, the AG pointed to Penal Code article 39.01 but declined to resolve any fact-dependent question of misconduct. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0553.pdf

Citations and references

The opinion cited the following authorities. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0553.pdf

Constitutional and statutory provisions:

• Tex. Const. art. XVI, § 65 (staggered terms; automatic resignation on candidacy)
• Tex. Const. art. XI, § 11 (city officer terms; automatic resignation)
• Tex. Const. art. XI, § 5 (home rule authority)
• Tex. Const. art. V, § 15 (county judge)
• Tex. Penal Code art. 39.01

Cases:

• Turner v. Trinity Independent School District Board of Trustees, 700 S.W.2d 1 (Tex. App. - Houston [14th Dist.] 1983, no writ)
• Willis v. Potts, 377 S.W.2d 622 (Tex. 1964)

Attorney General opinions cited:

• Attorney General Opinion JM-395 (1985); M-586 (1970)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0553
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0553.pdf

Original opinion text

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

October 7, 1986

Honorable Pablo Avila
Zavala County Attorney
Zavala County Courthouse
Crystal City, Texas 78839

Opinion No. JM-553

Re: Whether a mayor automatically resigns his position upon announcing his candidacy for the position of county judge

Dear Mr. Avila:

You ask whether the mayor of Crystal City may continue to occupy his office as mayor while he holds another office or is a candidate for another office. He initially served Crystal City as a city council member and was appointed to the position of mayor, a non-paying position. He had a little over a year left on his term as mayor when he filed for the office of county judge for Zavala County. Based on these facts, you first ask whether the mayor of Crystal City may continue to hold that office after becoming a candidate for the office of county judge. You also ask whether there is a conflict of interest in the interim before the election.

The mayor is also a justice of the peace in Zavala County. You state that he had over one year left on his term as justice of the peace when he filed for reelection to the city council of Crystal City in March of 1985. You ask whether the mayor automatically relinquished his position as justice of the peace, pursuant to article XVI, section 65, of the Texas Constitution, by becoming a candidate for city council when more than a year remained on his unexpired term as justice of the peace.

We will answer your second question first. The person you inquire about was serving as city councilman and justice of the peace at the time he filed for reelection to the city council. You do not ask and we do not decide whether this dual service was permissible. See Turner v. Trinity Independent School District Board of Trustees, 700 S.W.2d 1 (Tex. App. - Houston [14th Dist.] 1983, no writ); Attorney General Opinion JM-395 (1985). You ask simply whether this individual automatically resigned his position as justice of the peace when he announced his candidacy for city council member.

Attorney General Opinion JM-395 (1985) considered whether a justice of the peace automatically resigned his office pursuant to article XVI, section 65, of the Texas Constitution when he announced his candidacy for city council member of a general law city at a time when he had more than one year remaining on his unexpired term as justice. Article XVI, section 65, of the Texas Constitution provides as follows:

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).

This provision applies to a justice of the peace. Attorney General Opinion JM-395 concluded that a councilman of a general law city occupied an office of trust within article XVI, section 65, of the Texas Constitution. This conclusion also applies to a city councilman of a home rule city. He engages in governmental activities and exercises a portion of the sovereign powers of the state and thus also occupies an office of trust within article XVI, section 65. Tex. Const. art. XI, § 5; Willis v. Potts, 377 S.W.2d 622 (Tex. 1964). The person in question had over one year remaining on his term as justice of the peace when he filed for reelection to the city council of Crystal City in March of 1985. He therefore resigned his office as justice of the peace at that time, pursuant to article XVI, section 65, of the Texas Constitution.

We turn to your first question: whether the mayor of Crystal City may continue to hold that office after becoming a candidate for county judge at a time when he had more than a year remaining of his term as mayor. Article XI, section 11, of the Texas Constitution pertains to the term of office of city officers. It also includes a provision for automatic resignation of city officers who become candidates for another office under certain circumstances. Article XI, section 11, of the constitution provides in part:

Sec. 11. A Home Rule City may provide by charter or charter amendment, and a city, town or village operating under the general laws may provide by majority vote of the qualified voters voting at an election called for that purpose, for a longer term of office than two (2) years for its officers, either elective or appointive, or both, but not to exceed four (4) years; provided, however, that tenure under Civil Service shall not be affected hereby.

Provided, however, if any of such officers, elective or appointive, 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.

The constitutional provision was construed by Attorney General Opinion M-586 (1970), which considered whether the mayor of Amarillo resigned his office upon becoming a candidate for county judge at a time when the unexpired term of his office exceeded one year. The opinion determined that the provision for automatic resignation applied only to city officers whose term of office was longer than two years, having been extended beyond two years under the authority of paragraph one of article XI, section 11. Attorney General Opinion M-586, at 3-4. The mayor of Amarillo served only a two year term, accordingly, he was not subject to the provision for automatic resignation in article XI, section 11.

The answer to your question depends upon whether the mayor of Crystal City serves a two year term, or whether his term of office has been lengthened beyond two years. If he serves only a two year term, he is not subject to the provision in article XI, section 11 for automatic resignation. If his term as mayor is longer than two years, then he will automatically resign that office by becoming a candidate for any other "office of profit or trust" at any time when his unexpired term as mayor exceeds one year. A county judge occupies an office of profit. See Tex. Const. art. V, § 15. Thus, if the mayor's term of office exceeds two years, his becoming a candidate for the office of county judge at a time when he had more than one year left to serve as mayor would constitute his automatic resignation from his office as mayor.

In the event that the mayor of Crystal City may continue to hold his office while running for the office of county judge, you wish to know whether he would be involved in a conflict of interest in the interim before the election. The mere fact that this individual is serving as a mayor while running for the office of county judge does not involve him in a conflict of interest. Whether he has engaged in conduct that would violate any law depends upon all the surrounding facts and circumstances and is beyond the scope of this opinion. See Penal Code art. 39.01.

SUMMARY

Under article XVI, section 65, of the Texas Constitution a justice of the peace who announces his candidacy for city councilman of a home rule city at a time when more than one year remained on his unexpired term of office as justice thereby automatically resigned that office.

Under article XI, section 11, of the Texas Constitution the mayor of a city whose term of office is two years does not automatically resign that office by becoming a candidate for county judge at a time when his unexpired term of office as mayor exceeds one year. If the mayor's term of office exceeds two years, then his announcing his candidacy for county judge at a time when more than one year remains on his term as mayor constitutes an automatic resignation of the office of mayor.

Very truly yours,

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