   OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

   JOHN     CORNYN




                                             October 11,2002



The Honorable Michael S. Wenk                          Opinion No. JC-0562
Hays County Criminal District Attorney
Hays County Justice Center                             Re: Whether a city official who becomes a
110 East Martin Luther King                            candidate for the office of precinct chair of a
San Marcos, Texas 78666                                political party is subject to the “resign-to-run”
                                                       provision of article XI, section 11 of the Texas
                                                       Constitution   (RQ-0537-JC)


Dear Mr. Wenk:

         You ask whether the “resign-to-run” provision of article XI, section 11 of the Texas
Constitution is triggered when an elected city official with more than one year remaining in his or
her term becomes a candidate for the office of precinct chair of a political party. Because the
precinct chair of a political party is not a public office, article XI, section 11 does not apply in such
a situation.

        As we understand the facts which lead to       your request, two members of the City Council of
San Marcos, Texas, each of whom had more than          a year left in office, filed as candidates for election
to separate party precinct chair positions in Hays     County.’ It has apparently been suggested that in
so doing, they forfeited their council positions        pursuant to article XI, section 11 of the Texas
Constitution. This is not the case.

         As a preliminary matter, we note that Texas Attorney General Opinions H-698 (1975) and
H-876 (1976), which hold that municipal public officials such as these council members may not
serve on the executive committees ofpolitical parties have, as you suggest, been implicitly overruled
by a change in the law. See Tex. Att’y Gen. Op. Nos. H-698 (1975), H-876 (1976). Those opinions
interpreted a predecessor statute to what is now section 16 1.005 of the Election Code, former article
3.04 of the Code, which read in relevant part:

                 No one shall act as chairman or as member of any district, county, or
                 city executive committee of a political party who . . . is a candidate
                 for public office, or who holds any office of profit or trust, either
                 under the United States or this state, or any city or town in this state.



        ‘See Letter from Honorable Michael S. Wenk, Hays County Criminal District Attorney,   to Honorable   John
Cornyn, Texas Attorney General (Apr. 17,2002) (on file with Opinion Committee).
The Honorable Michael S. Wenk        - Page 2       (JC-0562)




Act of May 24,1963,58th     Leg., R.S., ch. 424, Q9,1963 Tex. Gen. Laws 1017,1027 (former article
3.04, section 3 of the Texas Election Code ) (emphasis added). The prohibition on municipal
officers acting as party officials, however, does not appear in the current version of the statute,
section 161.005 of the Election Code, which reads in relevant part:

                (a) To be eligible to be a candidate for or to serve as a county or
                precinct chair of a political party, a person must:




                        (2) not be a candidate for nomination or election to,
                        or be the holder of, an elective office of the federal,
                        state, or county government.

TEX. ELEC. CODE ANN. $ 161.005(a)(2) (Vernon Supp. 2002) (emphasis added). To the extent,
therefore, that Attorney General Opinions H-698 and H-876 assert that municipal officers may not
be local officers of political parties, those opinions have been superceded by statute. See Act of May
23, 1977,65th Leg., R.S., ch. 363, 0 2, 1977 Tex. Gen. Laws 966.

          Article XI, section 11 of the Texas Constitution, with which you are principally concerned,
requires that, should a home-rule city provide by charter or charter amendment that its officers serve
for longer than two years, “such officers, elective or appointive, are subject to Section 65(b), Article
XVI, of this constitution, providing for automatic resignation in certain circumstances.”            TEX.
CONST. art. XI, 8 1 l(a). Article XVI, section 65(b), to which article XI, section 11 makes reference,
provides for the automatic resignation of certain officers who “announce their candidacy, or 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” if more than one year
remains in their term of office. TEX. CONST. art. XVI, 5 65(b). “As a general matter, for purposes
of the automatic resignation provisions of article XI, section 11 and article XVI, section 65, the term
‘office of trust’ is interchangeable with the term ‘office.“’ Tex. Att’y Gen. Op. No. JC-0318 (2000)
at 3 (citation omitted). “Courts equate the term ‘office of profit’ with the term ‘lucrative office,’ and
have concluded that an office is lucrative if the officeholder receives any compensation, no matter
how small.” Id. (citing Dawkins v. Meyer, 825 S.W.2d 444,446-47 (Tex. 1992) and Willis v. Potts,
377 S.W.2d 622,626-27 (Tex. 1964)). “ In other words, a person who holds an office of profit holds
an office and receives some compensation for doing so.” Id. Accordingly, the answer to the
question of whether the strictures of article XI, section 11 apply in the situation about which you ask
depends upon whether or not the chair of the precinct committee of a political party is a public
office.

        The test in Texas law for whether one is an officer is whether one exercises “any sovereign
function of the government . . . for the benefit of the public largely independent of the control of
others.” Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578,583 (Tex. 1955). But under Texas
law a political party is not a state or governmental agency. See Carter v. Tomlinson, 227 S.W.dd
795,799 (Tex. 1950). Accordingly, it is well-settled in Texas that “officers of a political party, such
The Honorable   Michael S. Wenk - Page 3          (JC-0562)




as members of a party executive committee, are not public or governmental oficers, even when
provided for by statutory law.” Wall v. Currie, 213 S.W.2d 816,819 (Tex. 1948) (emphasis added);
see also Carter, 227 S.W.2d at 799; Martinez v. Democratic Comm. for Responsible God, 521
S.W.2d 284, 285 (Tex. Civ. App.-Eastland 1975, writ ref’d n.r.e.). This rule is the majority view
among American jurisdictions.    See, e.g., Moore v. Panish, 652 P.2d 32 (Cal. 1982); State v.
Hoskins, 978 S.W.2d 779 (MO. Ct. App. 1998); Opinion of the Justices, 197 N.E.2d 691 (Mass.
1964); Lanza v. DeMarino, 388 A.2d 1294 (N.J. Super. Ct. App. Div. 1978); State v. Bivens, 149
S.E.2d 284 (W. Va. 1966); Ariz. Att’y Gen. Op. No. 49 (1989).

        Given then that a position within a political party is not a public office, announcing one’s
candidacy for or actually becoming a candidate for such a position does not trigger the “resign-to-
run” provisions of article XI, section 11 or article XVI, section 65 of the Texas Constitution.
The Honorable   Michael S. Wenk - Page 4            (JC-0562)




                                         SUMMARY

                         The precinct chair of a political party is not a public office,
                and accordingly a municipal officer who has more than one year left
                in office and becomes a candidate for the precinct chair position has
                not triggered the automatic resignation provision of article XI, section
                11 of the Texas Constitution.      Attorney General Opinions H-698
                (1975) and H-876 (1976) have been superceded by statute to the
                extent that they held that municipal officers could not be local
                officers of political parties.




                                                Attorney General of Texas



HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General, Opinion Committee
