The Honorable Luther Jones         Opinion No. H-876
Chairman
Committee on Elections             Re: Eligibility of public
P. 0. BOX 2910                     officers for political
Auetin, Texas 78767                party posts.
Dear Chairman Jones:
     you have requested our opinion on a number of questions
regarding the eligibility of public officers for merabership
onpolitical party executive committees. Article 3.04,
subdivision3, of the Texas Election Code, provides:
         No one shall act as chairman or as member
         of any district, bounty, or city executive
         committee of a political party who is not
         a qualified voter, or 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.
In Attorney General Opinion H-698 (19751,we upheld the
constitutionalvalidity of this provision.
     you first ask whether a school district trustee, a
trustee of a water, utility or other special district, a
director of a soil and water conservation district, a member
of a city council,.or a deputy sheriff, constable or other
law enforcementofficer is included within the statutory
prohibition. If such persons hold "offices of profit or
trust’ under the state or under a city or town, they are
embraced within the mbit  of subdivision 3 of article 3.94.




                         p. 3691
T$he Honorable     Luther Jones - page 2 (H-876)


     A school district trustee has long been considered to
hold an office of profit or trust. Attorney General Opinions
o-2226   (1940);    O-2056   (1940);   O-2023   (1940).   As   to trustees
of special districts, a director of an irrigation district
has been held to OCCUPY such an office, Engelman Land Co. v.
Donna Irri ation District No. 1, 209 S;WF neenic              A%. --
San Antonio 1
-----+             writ refcas      has a trustee of a navigk-
tion district. ittorney General Opinion O-5550 (1943).
Likewise, a directorshipof a soil~conservationdistrict is
deemed to be an office of profit or trust. Attorney General
Opinion V-1445 (1952). In Letter Advisory No. 85 (1974),we
noted that a city council member holds an office of profit
or trust. See also Willis 2 Potts, 377 S.W.,2d622 (Tex.
Sup. 1964).-i%mvztv           sher7ffs  and constables have
been recognized ,as hblding such offices. m        v- Harris,
112 S.W.Zd 1091 (Tax. Civ. ADP. -- Amaril o       8, wmsm!d)t
Attorney General~OpinionO-3915 (1941).
      Your second question is whether a candidate for any
of these offices is also barred from serving as "chairman or
as member of any district, county, or city executive committee
of a political party." The answer is apparent from the
language  of the statute, which prohibits any "candidate for
public office" from serving in any of the specified political
party positions. We believe that all those offices about
which you inquire in your first question are "public offices,"
and therefore, a candidate for any such office falls within
the prohibition of subdivision 3 of articls 3.04.
     You next ask whether,~ if a chairman or member of the
executive committee of a political party becomes a candidate
for, or is~electedor appointed to, a public office, he
thereby automaticallyvacates his party office. In Attorney
;eneralOpinion O-2487 (19401, this Office held that, under
article 2940, V.T.C.S., the predecessor of article 3.04 of
the Election Code, when a member of a district, county, or
city executive committee of a political party becomes a
candidate for pub110 office, his political office  I so ,facto
';;;sm vacant. See also Attorney General Opinion-5  0- 2r
      . We belie~~thie         conclusion is correct, and
thus, we answer your third question in the affirmative.




                                  p. 3692
                      -

.


-.
     .   ; Ths Honorable 'LutherJones - page 3 (H-876)


               YOU also inquire as to the procedure which should be
          followed~whena public officer attempts to file for election
          to the office   of chairman or member of a district, county,
          or city executive comrnittaeof a political party. Subdivision
          3 of article 3.04 prohibits a public officer or a candidate
                       office on+ from acfi;q as a political party
                      The pub1 c officer,mig t well intend to resign his
          public office before commencing his term as chairman or
          member of a district, county, or city executive cosraittee.
          But cf. Attorney General Opinion O-1835 (1940). Thus, an
          xcnn      official should not refuse an application for a
          place on the ballot to a public officer merely by virtue of
          his occupancy of a public office. If, however, the individual
          continues to hold public office on the date set for occupying
          ~~~t~~liticaloffice, he is disqualified from fill;;ghzhs
                . Attorney General Opinion G-2023 (1940).
          attempts to serve in that capacity, he may be ousted.
          Attorney General Opinion O-3915 (1941).
                Your final question is whether the authority charged
          with the responsibilityfor canvassing election returns and
          certifying the results should decline to certify  the election
          of a public officer to thQ chairmnship .ofor membership on
          a district, county, or city executive oommittee of a politi-
          cal party. As we noted in.our answer to your last question,
          the public officer may in fact intend to resign his public
          office before assuming the duties of the political party
          position to which he has been elected. Since the statutory
          prohibition speaks only in terms of *acting" in the capacity
          of political party officer, it is our op*nion that an election
          official should not in this instance decline to certify the
          results of the election. As previously stated, however* if
          the individual,while remaining a public officer, attempts
          to act in the capacity of political party officer, he may
          be ousted. Attorney General Opinion O-3915 (1941).
                               SUMMARY
                    A school district trustee, a trustee of a
                    special district, a city council member,
                    and a deputy sheriff and constable hold
                    offices of profit or trust under the laws




                                    p. 3693
.



    The Honorable Luther Jones - page 4 (H-876)


                of Texas and are thus barred from acting
                as "chairman or as member of any district,
                county, or city executive oommittee of a
                political party." Furthermore,,a candi-
                date for any of these offices is psited
                from serving in any such political party
                positions. When any such political party
                officer becomes a candidate for public
                office, he automaticallyvacates his
                party office. An election official
                should not refuse an application for
                a place on the ballot to, or refuse to
                certify the election of, a publicofficer
                seeking .apolitical party post, although,
                if the individual attempts to serve in'
                that capacity while remaining a public
                officer, he may be ousted.




    APPROVED:



    DAVID M.-ND=,      First Assistant




    jwb




                                p. 3694
