    OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

    JOHN     CORNYN




                                                  August2,2001



The Honorable Juan J. Hinojosa                                Opinion No. JC-0403
Chair, Criminal Jurisprudence Committee
Texas House of Representatives                                Re: Whether the office of consolidated school
P-0. Box 2910                                                 district trustee is an “office of profit or trust”
Austin, Texas 78768-2910                                      within the meaning of article XI, section 11 of
                                                              the Texas Constitution and related question
                                                              (RQ-0366-JC)


Dear Representative      Hinojosa:

         You ask whether a commissioner of a home-rule city who campaigns for the office of trustee
of a consolidated school district automatically resigns from office by operation of article XI, section
 11 of the Texas Constitution.* We conclude that the office of trustee of the board of a consolidated
school district is an “office of profit or trust” within the meaning of article XI, section 11 and that
a city commissioner who announces his or her candidacy or in fact becomes a candidate for that
office automatically resigns. You also ask when any vacancy arising from such an automatic
resignation must be filled. We conclude that the city official charged with initiating special elections
may act to hold an election to fill the vacancy irntnediately upon the first act of the commissioner
that would constitute an automatic resignation under article XI, section 11, but must do so in time
to ensure that the vacancy is filled within 120 days.

          You explain that a commissioner of the governing body of the City of Elsa, a home-rule city,
is campaigning to be elected to the board of trustees of the Edcouch-Elsa Consolidated School
District and intends to file for a place on the ballot in the upcoming election for that position. See
Request Letter. We assume that the City operates under a commission form of government. See
TEX. Lot. GOV’T CODE ANN. 8 26.021 (Vernon 1999) (home-rule “municipality              may adopt and
operate under any form of government, including the alder-manic or commission form”). As you are
aware, under article XI, section 11 of the Texas Constitution, certain city officers automatically
resign from office upon running for a second “office of profit or trust.” TEX. CONST. art. XI, 5 11.
You ask whether the office of trustee of the board of a consolidated school district is an “office of
profit or trust” within the meaning of that constitutional provision. See Request Letter, note 1. And,
if it is, you also ask whether the Mayor of the City must act to hold an election to fill the vacancy




         ‘Letter from Honorable Juan J. Hinojosa, Chair, Criminal Jurisprudence Committee, to Honorable   John Comyn,
Texas Attorney General, at 1 (on file with Opinion Committee) [hereinafter Request Letter].
The Honorable Juan J. Hinojosa      - Page 2          (JC-0403)




immediately   or later, when and if the city commissioner    is elected to and accepts the second office.
See id.

        Article XI, section 11 provides as follows:

                         A Home Rule City may provide by charter or charter
                amendment, and a city, town or village operating under the general
                laws may provide by majority vote of the qualified voters voting at
                an election called for that purpose, for a longer term of office than
                two (2) years for its officers, either elective or appointive, or both, but
                not to exceed four (4) years; provided, however, that tenure under
                Civil Service shall not be affected hereby.

                         Provided, however, if any of such officers, elective or
                appointive, 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 law in the same manner as other vacancies for such office
                are filled.

                         A municipality so providing a term exceeding two (2) years
                but not exceeding four (4) years for any of its non-civil service
                officers must elect all of the members of its governing body by
                majority vote of the qualified voters in such municipality, and any
                vacancy or vacancies occurring on such governing body shall not be
                filled by appointment but must be filled by majority vote of the
                qualified voters at a special election called for such purpose within
                one hundred and twenty (120) days after such vacancy or vacancies
                occur.

TEX. CONST. art. XI, 5 11. Because article XI, section 11 only applies to cities that have adopted
terms in excess of two years for their officers, we assume that the City’s commissioners serve terms
in excess of two years. See Tex. Att’y Gen. Op. No. M-586 (1970) at 4 (Texas Constitution article
XI, section 11 automatic resignation provision applies only to municipal officers whose term of
office exceeds two years); see also Tex. Att’y Gen. Op. No. JC-0293 (2000) (assuming that City of
Elsa commissioners serve terms in excess of two years and that commissioners must be elected
by majority vote as required by article XI, section 11). In addition, because article XI, section 11 ‘s
automatic resignation     provision only applies to an officer who runs for another office
when more than one year remains in his or her term, see TEX. CONST. art. XI, 5 11 (“if any of such
The Honorable       Juan J. Hinojosa       - Page 3            (JC-0403)




officers . . . shall announce their candidacy, or shall in fact become a candidate. . . at any time when
the unexpired term of the ofice then held shall exceed one (I) yea?‘) (emphasis added), we assume
that the city commissioner at issue has more than a year remaining in his term.

         In answer to your first question, we conclude that the office of trustee of the board of a
consolidated school district is an “office of profit or trust” for purposes of article XI, section 11.
Again, article XI, section 1 l’s automatic resignation provision applies to city officers who hold a
term in excess of two years who “announce their candidacy, or. . . in fact become a candidate, in any
general, special or primary election, for any office ofprofit or trust under the laws of this State or
the United States other than the office then held.” TEX. CONST. art. XI, 0 11 (emphasis added).
Because there are very few cases or attorney general opinions construing article XI, section 11, this
office construes that provision relying on cases and attorney general opinions construing article XVI,
section 65, which contains almost identical language providing for the automatic resignation of
certain county and district officers,2 and which was adopted by the voters at the same time. See TEX.
CONST. art. XVI, 8 65; Tex. Att’y Gen. Op. No. JC-03 18 (2000) at 3 (“we construe article XI, section
11 ‘s automatic resignation provision according to case law and attorney general opinions construing
article XVI, section 65”).

         A judicial decision, Ramirez v. Flares, 505 S.W.2d 406 (Tex. Civ. App.-San Antonio 1973,
writ ref d n.r.e.), expressly holds that the office of school district trustee is an office of profit or
trust within the meaning of article XVI, section 65: “It is settled in Texas that a trustee of an
independent school district holds an office of trust under the laws of this state.” Id. (citing
Kimbrough v. Barnett, 55 SW. 120 (Tex. 1900); Lee v. Leonard Indep. Sch. Dist., 24 S.W.2d 449
(Tex. Civ. App.-Texarkana      1930, writ ref d)). The board of a consolidated school district is the
legal equivalent of the board of an independent school district. See TEX. EDUC. CODE ANN.
$9 11.151(a) (p owers and duties of board of trustees of independent school district), 13.155
(consolidated school district is an independent school district) (Vernon 1996). Accordingly, the
office of consolidated school district trustee is an office of profit or trust within the meaning of
article XI, section 11.

         Next we consider your question about when the Mayor of the City must act to hold an
election to fill a vacancy. As you ask about the duty of the Mayor, we assume that the Mayor is the
city official charged with initiating special elections. As we explain below, the Mayor may initiate
an election to fill a vacancy immediately upon any act of the commissioner that triggers an automatic
resignation under article XI, section 11, but must do so in time to ensure that the vacancy is filled
within 120 days.




           2Article XVI, section 65 provides in pertinent part: “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 of&e 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 ofIice then held shall exceed one (1) year, such announcement         or such candidacy shall constitute an automatic
resignation of the office then held.” TEX. CONST.art. XVI, $ 65(b).
The Honorable    Juan J. Hinojosa   - Page 4        (JC-0403)




        Under article XI, section 11, if an officer, who has more than a year remaining in his or her
term, “announce[s] [his or her] candidacy, or in fact become[s] 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” then “such announcement or such candidacy shall constitute an
automatic resignation of the office then held.” TEX. CONST.art. XI, 8 11 (emphasis added). Thus,
automatic resignation is triggered in either of two ways - announcing one’s candidacy or in fact
becoming a candidate.

         Attorney general opinions explain that an officer announces his or her candidacy for office
for purposes of the constitutional automatic resignation provisions by making a written or oral
statement “[i]f a reasonable person may conclude from the statement that the individual intends,
without qualification, to run for the office in question.” Tex Att’y Gen. Op. No. JC-0249 (2000) at
2 (citing Tex. Att’y Gen. LO-95-071, at 2). A person who has merely stated that he or she will
“seriously consider running” for an office if the incumbent resigns has not announced his or her
candidacy. See id. By contrast, a person who states without qualification in a public meeting or
press release that he or she will run for a particular office has announced his or her candidacy for
purposes of these provisions. See id.; see also Tex. Att’y Gen. Op. Nos. DM-377 (1996) (county
court at law judge’s statement at a commissioners court meeting that he was “at that moment” a
candidate for a judgeship constituted an announcement for purposes of article XVI, section 65);
WW-1253 (1962) (justice of the peace’s issuance of press release stating that he would be a
candidate for another office constituted an announcement for purposes of article XVI, section 65).
On the other hand, an officer “in fact become[s] a candidate” by the act of applying for a place on
the ballot. See Tex. Att’y Gen. Op. No. JC-0249 (2000) at 3.

         A municipal officer who automatically resigns pursuant to article XI, section 11 holds over
in office until his successor qualifies for office pursuant to article XVI, section 17. See Tex. Att’y
Gen. Op. No. JC-03 18 (2000) at 5; see also Tex. Att’y Gen. Op. No. JC-0293 (2000) (holding that
incumbent City of Elsa commissioner who received only a plurality vote held over in office
until position could be filled by a majority vote). However, article XI, section 11, unlike article XVI,
section 65, mandates that “any vacancy or vacancies occurring on such [municipal] governing
body. . . must be filled by majority vote of the qualified voters at a special election called for such
purpose within one hundred and twenty (120) days after such vacancy or vacancies occur.” TEX.
CONST. art. XI, 8 11. This duty to hold an election to fill a vacancy is a ministerial, non-
discretionary, enforceable duty. See Tex. Att’y Gen. Op. No. JC-03 18 (2000) at 6-7. Thus, the
Mayor may act to initiate an election to fill the vacancy immediately upon the first act of the
commissioner that would constitute an automatic resignation under article XI, section 11, but must
do so in time to ensure that the vacancy is filled within 120 days after the vacancy occurs.
The Honorable Juan J. Hinojosa     - Page 5         (JC-0403)




                                        SUMMARY

                         The office of trustee of the board of a consolidated school
               district is an “office of profit or trust” within the meaning of article
               XI, section 11 of the Texas Constitution. Thus, a city commissioner
               who, with more than one year remaining in a term in excess of two
               years, announces his or her candidacy or in fact becomes a candidate
               for the office of trustee of a consolidated school district automatically
               resigns by operation of that article XI, section 11. The city official
               charged with initiating special elections may act to hold an election
               to fill the vacancy immediately upon the first act of the commissioner
               that would constitute an automatic resignation under article XI,
               section 11, but must do so in time to ensure that the vacancy is filled
               within 120 days.

                                               Yo rsv       trul ”



                                              4Jvi
                                               JOHN     CORNYN
                                               Attorney General of Texas




HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General - Opinion Committee
