Does a Texas constable automatically resign by telling people privately he's running for sheriff and collecting petition signatures?

Plain-English summary

The district attorney for Kleberg and Kenedy Counties asked the AG whether the Texas Constitution's resign-to-run provision automatically forced a sitting Kenedy County constable out of office because of statements and steps he took toward running for sheriff. The facts: the constable told the current sheriff and several individuals or couples, in their homes or offices and in phone calls, that he was "running for Kenedy County Sheriff" and asked for support, and he gathered the minimum signatures for a ballot petition in lieu of a filing fee.

The resign-to-run provision, article XVI, section 65, lists certain officers (including constables) and provides that if such an officer announces candidacy, or in fact becomes a candidate, for another office of profit or trust when more than one year and 30 days remain in the current term, that announcement or candidacy is an automatic resignation. The AG explained the two triggers. An officer becomes a candidate "in fact" by formally applying for a place on the ballot; here, the constable had not applied. So the question was whether he "announced."

The Constitution does not define "announce," so the AG used the office's prior reading: an officer announces candidacy by making a written or oral statement from which a reasonable person could conclude the individual intends, without qualification, to run for the office, and the statement must be made in a public setting or otherwise be available to the public. In short, an announcement must be both certain and public. The constable's statements ("I am running for Sheriff. Will you support me?") were clear and unequivocal, so they likely met the certainty requirement. But they were made in private homes, offices, or private phone calls, and the request did not represent that any were made in a public setting or otherwise made available to the public, so they likely did not meet the public requirement. Without a public setting, the statements did not constitute an announcement.

As for the petition, the AG pointed to the Election Code, which requires a ballot application accompanied by a filing fee or a petition in lieu of the fee, but expressly provides that circulating such a petition does not constitute candidacy or an announcement of candidacy for purposes of the automatic-resignation provision. So gathering signatures, by itself, was not an announcement. For these reasons, the AG concluded a court would likely find the constable did not announce his candidacy under article XVI, section 65 by virtue of the described statements and actions.

Currency note

This opinion was issued in 2020. 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 mentioned here.

What the opinion meant for those who asked

For the district attorney and the constable, the opinion's reading at the time was that nothing the constable had done, as described, automatically cost him his office. The AG drew the line at the two statutory triggers: he had not applied for the ballot, so he was not a candidate in fact, and his "running for sheriff" statements, though certain, were made privately rather than publicly, so they were not an "announcement." The opinion also confirmed that collecting petition signatures was specifically carved out by the Election Code and could not, on its own, trigger automatic resignation. The AG framed the conclusion as a prediction ("a court would likely conclude") tied to the specific facts presented, and grounded the public-and-certain test in its own line of prior opinions rather than announcing a new rule.

Common questions

Q: What triggers Texas's resign-to-run rule for a constable?
A: Either announcing candidacy for another office of profit or trust, or in fact becoming a candidate by formally applying for a place on the ballot, when more than one year and 30 days remain in the current term.

Q: Do private statements that you're "running for sheriff" count as an announcement?
A: Likely not. The AG concluded an announcement must be both certain and public. Statements made in private homes, offices, or phone calls, with no representation they were public, likely do not meet the public requirement.

Q: Does collecting ballot-petition signatures trigger automatic resignation?
A: No. The Election Code expressly provides that circulating a petition in lieu of a filing fee does not constitute candidacy or an announcement of candidacy for purposes of the resign-to-run provision.

Q: So did the constable automatically resign?
A: The AG concluded a court would likely find he did not, based on the facts described, because he had not applied for the ballot and his statements were not public.

Background and statutory framework

The provision is Texas Constitution article XVI, section 65, which lists covered officers (including constables in subsection (a)) and sets the automatic-resignation rule in subsection (b). The office-of-profit-or-trust point drew on article V, section 23 (county sheriff) and Local Government Code section 152.011 (compensation of county officers). The "candidate in fact" and "certain and public" standards came from a line of prior AG opinions: GA-0769 (2010), GA-0210 (2004), JC-0249 (2000), GA-0643 (2008), DM-377 (1996), WW-1253 (1962), and LO-95-071, with JC-0562 (2002) and JC-0318 (2000) on office of profit or trust. The petition carve-out is in Election Code section 172.021(d), with the application and signature requirements in sections 172.021 and 172.025.

Citations and references

Constitutional and statutory provisions:

• Tex. Const. art. XVI, § 65; art. V, § 23
• Tex. Elec. Code § 172.021; § 172.025
• Tex. Loc. Gov't Code § 152.011

Prior AG opinions referenced: GA-0769 (2010); GA-0643 (2008); GA-0210 (2004); JC-0562 (2002); JC-0318 (2000); JC-0249 (2000); DM-377 (1996); WW-1253 (1962); LO-95-071.

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0301
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2020/kp-0301.pdf

Original opinion text

April 22, 2020

The Honorable John T. Hubert
Kleberg and Kenedy Counties District Attorney
Kleberg County Courthouse
Post Office Box 1471
Kingsville, Texas 78364

Opinion No. KP-0301

Re: Applicability of the constitutional resign-to-run provision to a county constable (RQ-0315-KP)

Dear Mr. Hubert:

You ask whether the Texas Constitution's resign-to-run provision applies in particular circumstances.[1] Specifically, you ask whether "under the facts presented, a Constable's statements and the seeking of signatures to place his name on the ballot for Sheriff . . . is considered 'candidacy' or 'an announcement' for the purposes of the automatic resignation . . . provisions of Article XVI, section 65 of the Texas Constitution." Request Letter at 1. As the relevant facts, you describe a conversation in which the Kenedy County Constable told the current sheriff that he is "running for Kenedy County Sheriff." Id. You describe meetings of the constable in the homes or offices of several individuals or couples, during which the constable told the individual or couple that "I am running for the Kenedy County Sheriff" and asked for support. See id. at 1-2. You also describe similar statements the constable made to individuals in telephone calls wherein he indicated he was "running for Sheriff" and asked for their support. See id. at 2. You tell us further that the constable obtained the requisite minimum number of signatures for a petition to be filed in lieu of a filing fee. See id.

The resign-to-run provision, Texas Constitution article XVI, section 65, provides that

[i]f any of the [listed] officers . . . 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 . . . other than the office then held, at any time when the unexpired term of the office then held shall exceed one year and 30 days, such announcement or such candidacy shall constitute an automatic resignation of the office then held . . . .

TEX. CONST. art. XVI, § 65(b). The list of officers includes constables. Id. art. XVI, § 65(a). Two acts trigger this provision: (1) when a named officer "announces" candidacy; or (2) when a named officer "in fact become[s] a candidate." Id. art. XVI, § 65(b). An officer becomes a candidate in fact under subsection 65(b) by formally applying for a place on the ballot. See Tex. Att'y Gen. Op. Nos. GA-0769 (2010) at 1, GA-0210 (2004) at 2, JC-0249 (2000) at 3. Here, you do not suggest that the constable applied for a place on the ballot. See Request Letter at 1-2. Thus, we consider whether the constable "announced" his candidacy for the office of sheriff[2] based on the facts you describe.

Article XVI, section 65 does not define the term "announce." See TEX. CONST. art. XVI, § 65; see also Tex. Att'y Gen. Op. No. GA-0643 (2008) at 5. Prior opinions from this office, relying on the term's ordinary meaning, explain "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-0769 (2010) at 2; see also id. Nos. GA-0643 (2008) at 6, GA-0210 (2004) at 2, JC-0249 (2000) at 2. For similar reasons, this office construes "announce" to require the candidate's statement be made in a public setting or be otherwise available to the public. See id. Nos. GA-0769 (2010) at 2, GA-0210 (2004) at 2, DM-377 (1996) at 2, WW-1253 (1962) at 2-3. Accordingly, article XVI, section 65 requires the candidate's announcement to "be both certain and public." Id. Nos. GA-0769 (2010) at 2, GA-0210 (2004) at 2.

We first consider the reported statements. In each instance, you describe the constable making statements such as "I want to let you know that I am running for Kenedy County Sheriff," and "I am running for Sheriff. Will you support me?" Request Letter at 1-2. These statements are clear and unequivocal. Compare Tex. Att'y Gen. LO-95-071, at 2 (concluding individual's statement that he "will seriously consider running for county judge" failed to indicate the individual's intent, without qualification, to stand for office). And if made by the constable as alleged, a reasonable person may conclude that the constable intends to run for the office of sheriff. Thus, the statements likely satisfy the certainty requirement.

An announcement of candidacy must also be public. See Tex. Att'y Gen. Op. No. GA-0643 (2008) at 6. "Thus, a statement while certain as to the person's intention to run for an office but made in a private conversation does not constitute an announcement of candidacy for the purposes of article XVI, section 65." Id.; see also id. No. GA-0210 (2004) at 2-3. Your letter informs us that the constable made these statements either in a private home or office or in private telephone conversations. See Request Letter at 1-2. You make no representation that the constable made any of these statements in a public setting or that the constable otherwise made them available to the public. See id. Accordingly, the statements likely do not satisfy the "public" requirement. Without the requisite public setting, these statements by the constable do not constitute an announcement of candidacy under article XVI, section 65.

We next consider the petition. You inform us that the constable "obtained the minimum" number of signatures on his petition in lieu of a filing fee. See Request Letter at 2. Section 172.021 of the Election Code requires a candidate to make an application for a place on the general primary election ballot. See TEX. ELEC. CODE § 172.021(a). This application must be accompanied by either the appropriate filing fee or "a petition in lieu of the filing fee." Id. § 172.021(b); see also id. § 172.025 (establishing the number of signatures required for the petition). However, section 172.021 expressly provides that the "circulation of a petition to be filed . . . in connection with a candidate's application for a place on the ballot does not constitute candidacy or an announcement of candidacy for purposes of the automatic resignation provision[] of Article XVI, Section 65 . . . of the Texas Constitution." Id. § 172.021(d). By itself, the constable's seeking signatures for the petition does not constitute his announcement.

For these reasons, a court would likely conclude that the Kenedy County Constable did not announce his candidacy under article XVI, section 65 by virtue of the statements and actions you describe.

S U M M A R Y

Texas Constitution article XVI, section 65 provides for the automatic resignation of an officer who announces candidacy for another office of profit or trust at any time when the unexpired term of his or her office exceeds one year and 30 days. An "announcement" under this provision must be both certain and public. Under the facts you describe, a court would likely conclude that the Kenedy County Constable did not announce his candidacy under article XVI, section 65.

Very truly yours,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

RYAN L. BANGERT
Deputy First Assistant Attorney General

RYAN M. VASSAR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable John T. Hubert, Dist. Att'y, Kleberg & Kenedy Counties, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Nov. 14, 2019), https://www2.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] Under article XVI, section 65, the office sought must be an "office of profit or trust." TEX. CONST. art. XVI, § 65(b). Prior opinions equate an "office of trust" with an "office" and an "office of profit" with a "lucrative office." See Tex. Att'y Gen. Op. Nos. JC-0562 (2002) at 2, JC-0318 (2000) at 3. As a county office, the office of sheriff is an office of profit or trust. See TEX. CONST. art. V, § 23; see also TEX. LOC. GOV'T CODE § 152.011 (providing for compensation for county officers).