                                                                        w39

                  TEEATTORNEY                GENERAL
                              OFTEXAS.


  WILLWIJBON
nnoanrWG-~
                          February 2, 1962

       Honorable F. T. Graham            Opinion No. WW-1253
       Criminal District Attorney
       Cameron County                    Re:   Whether under the
       Brownsville, Texas                      alleged facts a
                                               Justice of the Peace
                                               for Cameron County
                                               "announced his can-
                                               didacy" within the
                                               meaning of Section
                                               65 of Article XVI of
                                               the Texas Constitution
       Dear Mr. Graham:                        and related questions.
                 In your letter requesting an opinion from this
       office you allege certain facts which we summarize as
       follows:
                Mr. D. J. Lerma was elected Justice of the Peace
    : on July 26, 1958, for a four year term,beginning January
      1, 1959, and expiring December 31, 1962. On'December 11,
      1961, he issued a press release, pertaining to his political
      aspirations, to the Brownsville Herald. Pursuant to this
      press release, Mr. Ierma was quoted In the Brownsville Herald
      on December 11, 1961, as follows:
                    "It is my desire--and I have been
               urged by my friends--to seek the elective
               post of County Court At Law Judge,' said~
               Lerma. 'With the election set for May 5,
               only four months away, I find it necessary
               to announce at this time that I will be a
               candidate for the position of County Court
               at Law Judge." [Emphasis added)
                * Mr. Bill Rudd, Managing Editor of the Brownsville
       Herald, states that Mr. Lerma was accurately quoted In
       that the statements were taken directly from the written
       "release" Mr. Lerma submitted to the Herald's news office.
       Subsequently on January 25, 1962, Mr. Lerma filed his
       application with the Chairman of the County Democratic
       Executive Committee for the office of Judge of the County
       Court at Law.
                 With regard to the foregoing circumstances, you
I      ask three questions which are substantially as follows:
                                .



Honorable F. T. Graham, page 2 (W1253)


          1. Whether 14r.Lerma "announced his candidacy"
within the meaning of Section 65 of Article XVI of the
Texas Constitution by causing a "press release" to be
printed in the Brownsville Herald on December 11, 1961,
and thereby automatically constituting a resignation from
his office of Justice of the Peace.
          2.  If such action constituted an automatic
resignation and a vacancy exists, does Mr. Lerma continue
to hold office until a successor has been appointed and
qualified?

          3. Assuming the answer to the first question
is in the affirmative and a vacancy presently exists in
the office of Justice of the Peace, would the Commissioners
Court be authorized to appoint P-z.Lerma to fill such
vacancy?
          The answer to the first question is resolvep by
an amendment to Section 65 of Article XVI of the Texas Consti-
tution which was proposed by the Legislature in 1957,and
adopted in 1958. This amendment, forbids certain named
officials including Justices of the Peace from announcing
or becoming a candidate in General, Special or Primary
elections for any office of profit or trust at any time
when the unexpired term exceeds one year. Such announcement
or candidacy constitutes an automatic resignation of the
office then held. That portion of Section 65 most per-
tinent to our discussion reads as follows:
          "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 iaw in
     the same manner as other vacancies for such
     office are filled." (Emphasis added)
          After applying the alleged facts in this dase
to the plain and unambiguous wording of the provision
quoted above, it is'our opinion that Mr. Lerma "announced
                                                            5490
Honorable F. T. Graham,~page 3 (~~~-1253)


his candidacy" within the meaning.of the constitutional
provision on December 11, 196l+the date the n,ewspap~er
article in ques.tionappeared in.the Brownsville Herald.
of the operation of the provis?.on,such announcement.
constituted an automatic resignation of the office of
Justice of the Peace.
          The answer to yo&second   question isresolved
by.Section 17 of Article XVI of the Texas~Constitution.
mis provision reads,as,follows:
          "All officers within th?.s'
                                    State shall continue
     to perform the duties of their offices until-
     their successors shall be duly qualified.!
          "This provision, ~that officers shall hold
     overafter the expiration of their terms.until
     their successors are elected or appointed and
     have qualified was placed in the Constitution
     to prevent public convenience from suffering
     because of a vacancy in office,~and to insure
     against vacancies in ~office except in classes
     of cases or for causes provided for in other
     sections of the Constitution." "Interpre-
     tive Commentary, Section 17, Article XVI, Vernon's
     Annotated Texas Constitution).
          It is now an accepted proposition'of law that
this section is mandatory; and'an officer vJhOSeresignation
has been effected but whose successor has not been appointed
retains the nosition as a "de jure" officer,
Featherstom,- S.W. 983 (Civ.-App. 1902); Pla!~~&mon


 -761 (1939); Attorney General'sX)pinlon O-855 (
Attorney General's Opinion v-760 (,19&g)<
          On the. basis of these authorities, it is our
opinion that Kr. Lerma has served as a de jure Justice.of
the Peace since December 11, 1961, and continues to serve
as a de jure Justice of the 'Peace until the County Commissioners
Court, by t'?eauthority of Section 28 of Article V of the
Texas Constitution, apnoints someone to fill t'nevacancy
and that person has been duly qualified.
          The third question must be answered in toe
negative. Attorney General's Opinion No. w-788 (1960)
held that an officer listed in Section 65 of Article XVI
Honorable F. T. Grahamj'page 4 (WW-1253)


of the Texas Constitution, who voluntarily resigns his
office to become a candidate 'foranother office or who
automatically resigns his office by becoming a candidate
for another office as provided in Section 65 of Article
XVI, Is not eligible during such candidacy, for appointment
to fill the vac*.ncycreated by his resignation where there
is more than one year remaining In the unexpired term
of the office from which he resigns. This opinion reasoned
that, if an officer who is running for another office
In the middle of his term Was permitted to be reinstated
In the.offitieby appointment after his resignation, it
would defeat the primary purpose of the amendment, the
purpose being to discourage office seeking until the
unexpired term of the office holder did not exceed one
year.                                             -
          However, this opinion was limited to eligibility
for appointment.where there is more than one year remaining
in the unexpired term of the resigning officer. It did
not rule on whether an officer would be eligible 'fork.I
appointment If the unexplred,term was less than one.year
when the appointment was made.
          Mr. Lermals appointment, under the‘facts here
submitted would-in effect permit the very thing the-1958
amendment was intended to prevent. We are of the opinion
that the resigning officer may not be appointed to succeed
himself while he is a candidate for the other office.
                      SUMMARY
         Under the facts submitted, Mr. D. J. Lerma,
    Justice of the Peace forcameron County, auto-.
    matically resigned his office on December 11,~
    1961, by the operation of Section 65 of Article
    XVI of the Texas Constitution. Mr. Lerma continues
    to serve as the de jure.Justice of the Peace for
    his precinct until the Commissioners Court has
    appointed his successor and that appointee has
    been duly qualified. Mr. Lermafs appointment, ~.
    under the facts here submitted would in effect
    perm"t the very thing the 1958 amendment was
    intended to,prevent. We are of the opinion
    that the resigning~officer may not be appointed
    to succeed himself while he is a candidate.for the
    other office.

                            _.   :
                                              5491

Honorable F. T. Graham, page 5 (WW-1253)


                          Yours very truly,
                          WILL WILSON



1RW:lh:mkh

APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Bob ~Shanndn
Mary Kate Wall
Leon Pesek
Jack Price
~3EVIEWEDFORTHEATTORNEYGENERAL
BY: Houghton Brownlee, Jr.
