                 ~THEATCORNEYGENERAL
                          OF TEXAS




                                January 20, 1960


Honorable Bucney Walker                 Oplnlon No.. w-788,,
Criminal Dletrlct Attorney
Waco,   Texas,                          Re:     Whether an officer      who
                                                resigns his office      upon
                                                becoming a oandldate for
                                                a~nother office,    a8 pro-
                                                vided,,in Article    XVI,
                                                Section 65 of the Con-
                                                stitution,    Is eligible
                                                for appointment to fill
                                                the, vacancy created by
                                                his resignation.
Dear Mr, Walker:        ,,
         Your request    for    an opinion     reads as follows:
               "The County Commissioners Court of McLennan
         County has called upon my office       for an opinion.
         The factual background of thls~lnqulry        Is this:
         The County Judge of McLennan County Is presently
         serving a term which ends December 31, 1962.           The
         County Judge contemplates announcing for one of
         the District   Judge offices   here.    Under Artlole
         16, Section   65 of the Texas Constitution,      as
         amended November 4, 1958, this action of the County
        ,Judge would constitute     a resignation   from the
         office   of County Judge.
             "The Commlsaioners Court then,wants to know
        whether,they can legally;      after the announcement
        for Dlstlrlct .JuQe, appoint the incumbent ,County
                               gtresorlbed by, law, to fill
        Jubge,~~ih thd ~i@e#!nqr~
        ~~the,ve&nag    o.Wited    by hid own reislgnation         and
        ,serve untI.l~hie      8uccesaoY?    has qua&lfled,for      the
         omice *
             "The speclffc  proposition,          'therefore,    submitted
         tb you Is as follows:
,.   ”




             Honorable   Burney Walker,     page 2   ‘(W-788)

                           ” ‘Where’an’ elected off lclai     resigns,   either
                     voluntarily     or auto&&zally,by        operatldn of law,
                     as the result      of becoming a .oandldate for another
                     office    of profit   or, thrust,’ under, the laws of this
                     state; and the’unexplred’ term of the offici            ,beltig     “<
                     vacat,ed exceeds one .year, may .he be app,olntedi In
                     the manner prescribed       by law,~ to fill     the vacancy
                     ~.?re.ati?d,by hl,s own reaignatlon ,and serve urit1.l his
                     eucceseor has quallf led .for the-‘.Off Ice?’
                           “Attached ‘herewith 1B ,a ,brlef prepared for the
                      County Judge by then law firm ‘Or Ml-on and ,Xaley,
                    ,’on’this question.    ,’
                       ‘. ‘X ,coneur and agree with the .rei&lt, reached by
                     Ml&on ana :%ley,‘.and-‘1   hive bbeti.able to find no
         t           pr~hlbltldti,  under ‘Pcxae law,s, ,‘:whlhh would prevent,.
                     th6 r&&ppolntm&nt’ :iti ‘question.               .,

                         “It would be greatly appreofated    If we cbuld
                     h&e your department’s   opinion in thj..s connection
                     at youp earliest convehlence.”
                     The .provFsfon In Artlclk XVI, 8ebtlo.n 65, of the Texas
             C&ititutlOn    which Is here.inv@ved  was added by an imendment
             proposed by the’ Leglslatu,re, In ~1257
                                                   and, idbpted ,in, 19%.  It                 ‘,
             reads as follows:
                              “Provided,  however,, If any if’ the ..&ficere
                        named,hereln shall announce their Candidacy, ‘or
                        shall in fact become. a candidate, ,ln any General,         .,
                    ~. Special or Primary ~El6otlo~,~.for~~~       office   of
                        profit   ?r trust under the laws ,Of ,,thls State ,oti
                 :. :,. the, United State6 other ‘than the ~office than held,
                        at any time when th;d uni%p$.red t&r&of the office
                       .ttie~h held shall’ exoe?d one ‘(1) year, ,@uch announoe-
                        ment oreu,ch dandldaay shall oanetltute         an automatic
                        resignation    of the office,then  he&d; ‘and the vacancy
                        thereby ore&ted shall be fllled.Duosua,nt        to law in
                        the ‘aa% manner aa mother.vaca;n&s for suoh office
                        are filled.”         .~,‘. ,,j
                      Thti answer .to’your queetloii tui&&the          puspose of this
             provision)    atld speclflOal&y    whether it wad Intended to make ‘the
             resigning    officer. %nellglble’to    serve ln’,tbat .,offlce while he
             was a candidate for anotheli’ office.,       A~eonstltut%onal    provision
             of doubtful meaning, should be construed with a view to ascer-
             taining and carrying out the purpose foti which It was Intended,,
      :.,   ‘. ,,




  HOhirable B&me; Walker,           page'3   (v-'@B)'~


  having regard to the "evils        sou ht to be remedied."
  In@.. co. v. Warstill      124 Tex
  ~pkowslcg v. Newman ‘134 Tex a&” !~6s’~w~2~d1%              {igy
  mls ,provlslon doessnot In e&es;          terms'mke    the resignkg
  officer     lnellgfble  to appointment to fill    the vacanoy;but    we               ,
  are of the opinion' that it should be so oonstrued if Ons pur-
  pose of the amendmbnb wa8 to prevent. the officer         from holding ',
) the.,office     during oandibaoy:for   another office.      a
            A review of the background of this provision                 is essential
  to an as&ertalnment        of its purpose.         aBy conatltutlonal      amend-
  ments adopted in 1954, the terms of certain oounty and district
  officers     were Increased from two years to four years0 and the
  terms were staggered so that appraxlmately one-half                    of the
  offices    are tiegularly filled        by eleotlon     every two years.
  Under this new.arrangement,            It was possible      for an officer      to
  ruri for another offfce.ln         the middle o? hi,8 term without re-
  llnqulshing      the offlae    he then held.         X$ he was not elected to
  the other office,       'he continued to hold the office            to which he
  had been previously        elected;      if he was elected to the other
  office,    his~acceptanoe      of that office        oreated a vacancy of two
  years In the offLce he formerly held,,and                 the vacancy had to be
  filled    by appointment until the next general election.                    The
  effect    of election     to the othe,r office        was to turri an elective
  office    Into an'appointlve        office     for ap r~oxlmately half the
  term (and in practical         effect      for a fu&!l two years);       a result
  which 1s contra,z!y to the often-expressed              'concept that elective
  offices     should be filled      by the people rather than by appolnt-
  ment and that the offlce,should               be returned to the people for
  filling    as soon ads practieabbe          after a,vaoancy occurs.          In our
  opinion,     one purpose of the 199 amendment was to reduce the
  duration of appofntmente;s           Under this amendment* there Is still
  a vacancy which must be filled              by appointment from the date of
  the resignation      Until the, following         general election,       but the
  length of the time for which the appointee serves will in moat
  instances be considerably           less than for a vacancy occurring
  after then election.        Appointment of the resigning            offloer'to
  fill    the~.vaeancy izntfl the next general eleotion              would not be
  Inconsistent      with thla purpoeep and 'if this were the only pur-
  pose of the amendment we would hold that he ooUld be appointed
  to, fill    the vaoanoy,.     The brief which you furnished            us reaohes
  the conclusion      that this is the only pkpoae              of the amendment
  and thst the 'officer        could be appointed to fill           the vacancy.
  However9 we are convinced that the Legislature                  also had another
  purpose in mfna when it proposed the amendment and that the
  people general~l.yso       understood when they adopted it,
            Unfortunately,        the Texas Legfslature doe8 not preserve
   an offfclal      rcoord   of   eommlttee hearfnge and floor debate8 and
                     Honorable,Burney               Walker,      page 4 (Ww-788)

                       discussions.      There Is nothing In the legislative          journals and
                       other official     records to give a' clue to ,the purposes of ,the
                       amendment beyond,the,wordlng         of the~amendment:itself;         But as
_~                     to likely' lnt&tit':~Of'.the :Legl~slature-~"and,,.the~und~erstandl.ng~atid
                       Intent of the~,eX~Ctoi?ate~~conce~nlngS~s~~meanin~~and puti age, :
                       We have found,ttiat 'in $he~,numerous fiubllq dls'cusa~dns'd,,~.the~  :,
                       amendment prlor~ t,q ,ttie ,1958 'eletitlon':~thc, @ommen$atorsi~',Oon.blsteqtly
                   ': ment~loned~that. done,of. ~ttie' purpcisea. was,.:tO :prevent~'an~~,offlc,e
                     '~holder.:from,devOt,ing      more~thati the.la&yezir     Of:hi.s'.four-year,
                 ".~ term of~offi,~e~~to,a~~politlc~l        campaign for another office.          The
                       followi&'    excerpts,lllustrate      the, nature of these co&m&fits.,
                                Dallas        Newsi ~,Ootober”17, ,:1958:           .~~     ': ~.,',: ~,',         .,:,
                                .


                                  Cdnstitutional.:‘change,.,,aS, -1954, ',:w&b.~b::ii&& .it 1': A :,         :
                                 po,~s’s@iJ.e~~~~$6r,d.otitit~(~ffl~ers::to::d~~~ts~‘al~~st~:,     :   ‘~ .:                     ~.~i
                                  thelr~'entlre't;;e,rms,~~b duties of,.,Office.          Under
                                  the: 2-year term.'sys$em, they had, to, ruti fo,r              ~~
                              ,I~'Pe-eM3$o'n       one year, out of ,'.eyery two.         "~' ,:    ..
                                                          .'


                                oVer$ooki?d-&such. ~off’io.e: hr&%irs‘:‘.OdiiI@ru~,“fo.@ ,. ,~t ‘.,
                                other :offl%es In the’ middle bf ~~ttieir terms,.,: .'
                                                                                       ,.
                                      "The .new i&e,'lf     'agproved,'by~voters,    would
                                tend to force office       holders tq,glve~undlvid&d
                                attention    to;hiS .office., for Eit,~leiSt three"gear8,                                ~~ ~,
                                of a faur-year     t,erm. " " i ',,,    .'
                         .,                                                .:,.               ..~
                              ', Houston Chroni&,                 &&ber   8,,~$@ -Is: ':'. .:,::,/,',~y~I
                                                                                      ."                ".-~,',~
                                      "T~heprimary pus$osei ~of':'8&tin& up fb&&ar                      :.
                                 terms~,for lo'cqil officer8    tiae,,go,:‘en&blt! WeaL to:’ :, >
                                 devote mor,q time, to offloqdtiti&8         ,.than.',wae",possl-.,,~,'
                             ‘, ~ble-dor    ,expedieht--wheti ~.the$.~~d:~;tp:Suti:~$b~''pe-
                                ,eJectlo,$ every, two'years.~. It. wati.the $@islatiir~!a
                                 idea,~ In. su‘bmi$+-ig Amendmetit'NQ'.",4 .that~ %iaving                  ',.
                                 open the.’.Oppo,titu$l,t$ to,’rtin’Pby some.~dth&r office, ~’               ‘.  .~
                       ~,~
                         ” ‘~“at ,qL+-$e,rij ,woUld $aftly ~,dtjfeat tihat~‘.ptiti$oae.”
                                                                 .,,’ ,.
                             ‘. F@@ort; prepared by T&x Research Association                    of
                                .tiouston, and Harris County,       Inc. :
.;,;.,~
      ‘.   ‘.’
            .                             !lhen~    the,   &n&lti&;ai:      g~e&fn&t’,    &$e&ing                ,,’
                               t,he:'t'em          of various qoutity .OtiPid$al,& f&m't&'~tO                '         ,:~'
                                                     ,,       .,
                               ~(.   ',
Honorable   Burney Walker,    page   5 (~~-788)

        four years was adopted In 1954, It was the con-
        ception that the longer terms of office       would’
        reduce time spent In running for election       and
        would allow county offfcfals    to concentrate .on
        their jobs.    That is, a four year term, it was
        thought, would permit fan oPfl.ciaS to ,glve.his
        office  his undivided attention   f,or at. least three,
        years., without, the necessity .of running again.
               “Because, under the ,provlsions   of the 199
        ame’idment;, approximately half of,the, officers        of
        each county areelected      every tvjo~~.
                                                yeara:,for,~fbriti  ,,‘,
        year’terms,, .lt 1s possible   f,Or. an officer    ‘to run   .’
        for, a different:   office at the general election
        coming in the micjdl’+ ,of his term and thereby d,e-
        feat the baelc purpose of the. 1954 iunendment.
        This ,new amendment would require      the offlc’ial    to
        resign before~ announcing for some other’office
        and thus prevent him from campa~gnlngfor            anbther
        office    and preaumbly ,neglectihg .tq adequately
        fulfill    the dQtie% of the off&c& .$o~.whloh he,~was
        previ~ously”ele&ed;”            ” “.

        Bulletin   prepared   ,by, League of Women.Voters. of Texas:
             ?h&& : titao’?Se”F,@R,@e’    ,$mi$ndrn&td sa$ :,
             “The ,automati& .~reslgnatlon feature would
        keep. theee officials   on t.he job rather than
        campaignfng fck a different      offl.ce at tal-
        payers 1 expense, with, then ,resultant, loss of
        servf.ce s
                 “Unde’r present’, provisions     a candidate may wait
           to resign f.rom one office       until the last minute
           before being sworn In for another.           This pr&tlce
           la not fair t,o the people for, It then ‘,leaves an
           unexplred:term     to, be filled    by a costly speolal ‘,
           elections or by appol$nei?t : !’
                                            .’ .;
           While these private,      un6ffloial     l&er$retatlbns     are not
conclusive       of the, Intent and purpose of the,amefidinent, they give
an Insight into ,the $revallfng           conception   of the ,“evll sought to
beg rem&die&! bye‘the amendmentO This ,puPpose~ o$ seeking to, limit
polltloal.     activity    to the last year ,of .the: four-yea?     term also
furrilshea ‘an e%planation of. low, ,th&:,&&etidment,‘provide& for auto-
matlc reslgnat,ion       if the officer     ‘becomes a candidate for another
    Honorable Burne Walker, page   6 (W-788)

    offlc'emore than one year before expiration of his term rather
    than tying the resignation to the length of the unexpired
    portion of the term after'the election at which he Is a candi-
    date for another office.
           As further substantiationof this purpose, another con-
    stitutionalamendment proposed by the same Legislature and
    adopted at the same election as the 1958 amendment to Section
    65 of Article XVI, also contains a similar provision for auto-
    matic resignationof municipal officers holding terms of more
    than two,years. Texas Constltution,'Artlcle  XI, Section 11,
    adopted November 4, 1958, This provision with respect to munlc-
    ipal officers cannot be satisfactorilyrationalizedon the ground
    that its sole purpose was to reduce the appolntive tenure or to
    eliminate the expense of a special election which would result
    from the officer's election to another office, but It comp,orts
    withthe purpose to prevent the off,lcerfrom engaging in a
    political campaign for another office at any time except the
    last,year of his term,
           To permit an officer who Is running for another office
    in the middle of his term to be reinstatedIn the office by
    appointmentafter his resignationwould defeat this purpose
    of the amendment. Being convinced that this was one of the
    purposes, we hold that he may hot be appointed to fill the
    vacancy created by his resignation.     *
           In the brief wh1c.hyou furnished us0 it was stated that
    the only comparable statutory enactment or constitutionalpro-
    vision that the author had been able to find Is a Montana
             construed in MulhollandV. Ayres, 99 P,2d 234 (Mont.
    ;$?~;40,.    We also have been unable to find any other case
    construinga similar provision. The Supreme Court of Montana
    summarizedthe statute and Its purpose as follows:
              "Section 1 of Chapter116 of the Laws of 1937
          provides, In substance,that whenever any person
          holding any office under the laws of the state, the
          term of which Is longer than two years, shall be-
          come a candlda%e for election to any elective
          office; other than for re-electionto the office
          held byehim, he shall resign the office held by
          him, and if he fails to do so the office shall be-
          come vacant and unoccupied ipso facto. Section 2
          provides for filling such vacancies. Section 3 pro-
          vides: 'This act shall not apply * * * .(e)to the
          incumbent of any office whose term of office expires
          within (70)seventy'daysafter the ensuing general
          election.


    ,
               \

                                                         1
:    *
         Honorable Burney Walker,        page   7 (~~-788)



                         “The question presented Is whether there la
                    now’s vadanog In the office       of state senator for
                    SilVer Bow county.      In.conaiderfng    this question
                    we must look flrst’to     the object and purpose of
                    the Act and the evil sought to be remedied by It.
                    It Is plain %h@t the purpose of Chapter 1.16         18 to
                    encourage the Pilling     of vacancies by election,
                    rather than by appointment; bg reducing the du-
                    ration of appointments and to,dlscourage          a person
                    already holding one office       carrying more than a
                    two-year term and the’term of which would not ex-
                    pire until more than seventy days after the ensuing
                    general ilectlon,     Srom retaining    that office   while
                    endeavoring   to,obtaln   another at auoh election.
                    The effect  of chapter 116i?‘to eauae a vacancy to
                    exist in time 80 that. it can be filled       by eJectIon
                    at the same election     which causes the vacancy, and
                    making the Interim appointment of .short dtiratlon.”
                The court construed the statute aa havlngsas one of Its
I,       purposes  the reduc,tion of ‘duration of appointments,      but it also
         Sound that another purpose was to dlacourage the office         ho,lder’
         from retaining  the office     while endeavoring to obtain another.
         The question of ellglbility,for      ,appointment to fill   the vacancy
     .   wa8 not involved In that case.       Whether the court    would have
         used the WoPd “prevent ” instead of “discourage”       if that ques-
         tion had be’en presented is oonjectural,      but at least ft can be
         seen that the,couz% considered retention       of the office   while
         seeking another.&     one of the evils sought to be remedied.
                   In thfa opinion we’are not passing on the constitutionality
          of the 1958,amendmentatto Section 65,        of Article   XVI with regard
          to posafble,inf?action       OS the equal protection      clauee    of the
          14th Amendment ~to the United States Cdhstitution,            or other
          poaslble    constitutional    objections    ~whlch might be leveled.against
          it.    We recognize     that this requirement of automatic        resignation
          Imposed on ofS%cers covered by Sectfon 65#when there Is no
         ‘comparable prqvi.slon applicable         to district   and appellate    jud~ges
          and other dfetrlet       and state officer8     having terms OS four or
          81x years, .and various ,other phaees of It.8 application            as conk
          etrued In this opinion,       raise a poetifbility     of ,invalidity   under
          the Federal Constitution.         Seq, e.g.,    Mulholland v. Ayres, supra;
          Burrougb B v. Lylea, 142,Tex. 764,,~       1.81 3 W 24 ~(0 (1944)       But we
          a0 not f 1 th t it fs neceesary Sor ua’t:            pass ins Its ionstltu-
          tlonallt~ln      a&werlng your question,         We are mentioning possible
          Invalidity,   not by way oS~intimatl,ng that we think it is invalid
          under the Federal’ Constltutfon,         but because the brief which you
Honorabl6 Burney Walker, page 8 (W-788)


furnished ua has suggested        that lt,would. be Invalid If the
OfficeF is lnel&glbJe fork appointment.          We do not think it is,
Incumbent upon the Commis.aloners court to obtain a ruling on
its constltlltiohallty      before making an appointment In the
event theG+mty        Judge beiximes a dandldate'for      the other office.
Bquaf protectXon.ls       8 Iprivate right tb b6 asserted by the indl-
vldu&l,who, alB,Uns'to have'been deprived of It.           If the County
Judge beoam@ a 'aandldate ,for the other office           and &t the same
time lnsieta that-he is entitled         tb continue 3i.nhis present
office,  he nil1 have rqqourse to the courts to protect whatever
fight he @Lght haoe,to tha'offlae~against           the adverse alald tf
the Commleelonere Coq?tls ap?oLntee.
                                                 .'
        This opinion Is limited to eligibility          for Bppolntment
where there is more than one year remaining lnthe             unexpired
term of the reslgnlng officer.          It does not~rule on whether he
would,be eligible,     for appointment, ii the unexplred,term      was
less than one year when the appolntment~was made.

                              SUMMARY

              A County Judge or other precinct,        county ore
        district   offlcer'llsted     In Article   XVI, Section
        65 of the ,Texas Constitution        who voluntarily   re-
        signs his office       to become a Candidate for another
        office   or who automatically      resigns hi.9 office    by
        becoming a candidate for another office          as pro-
        vided In Aptlale XVI, Section 65, la not eligible,
        during such cand.ldacy, for appointm'ent to,flll          the
        vamnay~oreated        by his resignation   where there Is
        more than one gear remaining in the unexpired term
        of.,the office    from which ,he resigns.
                                        Yours very    truly,

                                        WILT+ WILi3QN
                                        Attorney   General,    of   Texas
  * .. .




Honorabl~.Burney    Walker,   page .9 (W-788)


APPROVEDz
OPINION COMMIT
W. V. Geppert,     Chairman
Cecil   C. Cammack, Jr.
James   R. Irlon,, III
Elmer   MaVey.
C. K.   Rlahddds
REVICEWH)::
         FOR THE ATTORNEY
                        GENERAL.
BY:
    Leonard Pessmore
