                                           December 22,200O



The Honorable Eugene D. Taylor                           Opinion No. JC-03 18
Williamson County Attorney
County Courthouse Annex, Second Floor                    Re: Whether article XI, section 11 of the Texas
405 Martin Luther King, Box 3                            Constitution requires a municipality to fill by
Georgetown, Texas 78626                                  special election a vacancy in its governing
                                                         body arising from an automatic resignation
                                                         (RQ-0286-K)



Dear Mr. Taylor:

         On behalf of the City of Georgetown (the “city”), a home-rule city that has extended the
terms of its mayor and city council members horn two to three years, you ask about the
consequences of a council member’s automatic resignation under article XI, section 11 of the Texas
Constitution. Your primary question is whether the city must fill the vacancy by special election or
whether the city council may appoint a person to fill the vacancy. If a special election is required,
you also ask whether the city may wait until May 2001 to hold the election, given that it has already
failed to hold an election within 120 days of the vacancy as required by article XI, section 11. We
conclude that the city must hold an election to fill the vacancy and that it must do so before the
council member’s term expires in May 2001.

         A brief attached to your request explains that the council member at issue was elected to a
three year term in 1998. In March 1999, with more than a year remaining in his term, the council
member filed to run for mayor. The council member was not elected mayor in the May 1999
election, and thereafter continued to serve on the council. The council member and city attorney
recently became aware that the council member may have automatically resigned under article XI,
section 11 of the Texas Constitution. “Questions have arisen with regard to the proper procedures
and requirements which should be followed at this point since more [than] 120 days have elapsed
since [the council member] announced his candidacy and there is less than one year remaining in his
term.“’




         ‘Letter from Honorable Eugene D. Taylor, Williamson County Attorney, to Honorable John Comyn, Texas
Attorney General at 1 (Sept. 11,200O) (on file with Opinion Committee) [hereinafter Request Letter].
The Honorable Eugene D. Taylor       - Page 2     (X-0318)




       Article XI, section 11 of the Texas Constitution      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
               ofprofit or trust under the laws ofthis 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 ofthe office then
               held, and the vacancy thereby created shall be tilled pursuant to law
               in the same manner as other vacancies for such office are tilled.

                        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
               tilled 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, § 11.

         First, because the council member at issue became a candidate for mayor, you ask whether
the office of mayor is an office of profit or trust under article XI, section 11. See Request Letter,
suprn note 1, at 1-2. Article XI, section 1 l’s automatic resignation provision applies to any city
officer who holds a term in excess of two years who “amiounce[s] their candidacy, or           in fact
become[s] a candidate, in any general, special or primary election, for any of$ce ofprojit or trust
under the laws of this State or the United States other than the office then held.” TEX. CONST.art.
XI, 3 11 (emphasis added); see also 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).
The Honorable       Eugene D. Taylor         - Page 3       (Jc-0318)




         There are very few cases or attorney general opinions construing article XI, section 11.
However, article XVI, section 65 contains almost identical language providing for the automatic
resignation of certain county and district officers. See TEX. CONST.art. XVI, $ 65 (“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 ofprotit 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 ofthe office then held.      .“). The automatic resignation provisions of article
XI, section 11 and article XVI, section 65 were both adopted by the voters in 1958’ for the same
purpose-to    ensure that officeholders serving terms that had been lengthened from two years would
give their undivided attention to their offices without campaigning until their last year in office.3
Thus, we construe article XI, section 1 l’s automatic resignation provision according to case law and
attorney general opinions construing article XVI, section 65.

         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.” See Tex. Att’y Gen. LO-96-107, at 2 (“office oftrust” as used in Texas Constitution article
XVI, section 65 is interchangeable with “office”). An individual who holds an office of trust “is
invested with some portion ofthe sovereign functions ofthe government, to be exercised by him for
the benefit of the public.” Tex. Att’y Gen. Op. No. JM-395 (1985) at 3 (relying upon definition of
“office of trust” in Kimbrough v. Burnett, 55 SW. 120 (Tex. 1900), and Ramirez v. Flares, 505
S.W,2d406,409      (Tex. Civ. App.SanAntonio    1973, writ ref dn.r.e.)). No cases or attorney general
opinions discuss the term “office of profit” as used in article XI, section 11 or article XVI, section
65. “Office of profit” appears elsewhere in the Texas Constitution. See TEX. CONST. art. III, 53 18,
20; id. art. XVI, $5 5,12. Courts equate the term “office ofprofit” with the term “lucrative office,”
and have concluded that an office is lucrative if the officeholder receives any compensation, no
matter how small. See Dawkins v. Meyer, 825 S.W.Zd 444,446-47 (Tex. 1992) (relying upon 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.

        The council member at issue became a candidate for the office of mayor of the City of
Georgetown, a position that we conclude is an “office of profit” within the meaning of article XI,
section 11. A home-rule city, like the City of Georgetown, “may adopt and operate under any form



        ‘SeeTex. H.J. Res.No.31,55thLeg., RX, 1957Tex. Gen. Laws 1641; Amendments to ConstitutionofTexas
Adopted in 1958, 1959 Tex. Gen. Laws XXXV,XXXVIII;Tex. H.J. Res. No. 48, 55th Leg., RX, 1957 Tex. Gen. Laws
1645; Amendments to Constitution of Texas Adopted in 1958, 1959 Tex. Gen. Laws XXXV, XXXVII.

          3T~~s LEGISLATIVE COLNCIL, INFORMATION CONCERNNG CONSTITUTIONAL AMENDMENTS TO BE
CONSIDERED NOVEMBER4, Amendment No. 4 - H.J.R. No. 31 (1958) (purpose of automatic resignation provision to
further goal of 1954 amendment lengthening county and district terms from two to four years “to petit the office
holder to give his undivided attention to his oftice, without the necessity of campaigning, for at least three years of his
four-yearterm”);seeid. AmendmentNo. 5-H.J.R. No. 48( 1958) (notingthatmunicipal automaticresignationprovision
intended to prevent defect of 1954 amendment lengthening county and district terms).
The Honorable     Eugene D. Taylor   - Page 4     (JC-0318)




of government, including the aldermanic or commission form,” TEX. Lot. GOV’T CODE ANN.
5 26.021 (Vernon 1999), and may create offices and prescribe the duties of office, see id. 5 26.041.
The Georgetown City Charter and Code of Ordinances provide that, while the mayor has no regular
administrative duties, he or she is a member of the city council entitled to vote in case of a tie and
has certain emergency powers, including the authority to summon a special police force and to close
places ofpublic assembly. See GEORGETOWN,TEX., CITY CHARTER$5 2.01, .04, .06, .13; CODEOF
ORDINANCES$3 2.04.030 - .040. In addition, the mayor receives a salary of $250 a month. See
GEORGETOWN,TEX.,CODEOF~RDINANCES 5 2.16.010. As we have seen, the term “office ofprofit
or trust” is a broad term that embraces any office, paid or unpaid. The term has been specifically
construed in attorney general opinions to include membership on both a home-rule or general-law
city council. See Tex. Att’y Gen. Op. Nos. JM-553 (1986) at 2 (home-rule city council member
holds an office of trust within meaning of Texas Constitution article XVI, section 65); JM-395
(1985) at 4 (general-law city council member holds an office of trust within meaning of Texas
Constitution article XVI, section 65). Based on the Georgetown City Charter, it appears that the
city’s mayor “is invested with some portion of the sovereign functions of the government, to be
exercised by him [or her] for the benefit of the public,” including the authority to sit on the city
council, to cast a vote in case of a tie, and to exercise certain powers in case of an emergency. See
Tex. Att’y Gen. Op. No. JM-395 (1985) at 3 (relying upon definition of “office of trust” in
Kimbrough v. Barnett, 55 S.W. 120 (Tex. 1900), and Ramirez Y. Flares, 505 S.W.2d 406,409 (Tex.
Civ. App.-San Antonio 1973, writ refd n.r.e.)). Accordingly, we conclude that this paid office is
an office of profit within the meaning of article XI, section 11. Therefore, by filing for that office
with more than one year remaining in his term, the council member resigned.

         Second, you ask about how a vacancy in office created by operation of article XI, section 11
should be filled. Again, the second paragraph of article XI, section 11 provides that when a
municipal officer automatically resigns “the vacancy thereby created shall be filled pursuant to law
in the same manner as other vacancies for such office are filled.” TEX. CONST.art. XI, 4 11. The
third paragraph, however, requires that certain vacancies must be filled by a special election:

                          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.

Id. (emphasis   added).

         The Georgetown City Charter provides that vacancies in the city council shall be tilled by
a majority vote ofthe remaining members ofthe council for the unexpired term or until the next city
The Honorable Eugene D. Taylor       - Page 5     (JC-0318)




general election. See Request Letter, supra note 1, at 3; GEORGETOWN,       TEX., CITYCHARTER5 2.03.
You ask: “Should a municipal office be tilled pursuant to law in the same manner as other vacancies
for the office are tilled, as stated in Paragraph 2 of Article [XI], or must a municipal office be filled
in the manner set out in paragraph 3 of that section. 7” Request Letter, supra note 1, at 2. You ask
in essence whether the vacancy caused by the council member’s automatic resignation may be tilled
by the remaining members of the council pursuant to the City Charter or if the city must hold a
special election.

         We conclude that article XI, section 11 requires that any vacancy in a municipal governing
body with terms exceeding two years must be filled by majority vote of the qualified voters at a
special election and that a city may not till such a vacancy by appointment, even if the vacancy is
the result of an automatic resignation.    While paragraph two of article XI, section 11 generally
provides that vacancies in municipal offtces arising from automatic resignation “shall be tilled
pursuant to law in the same manner as other vacancies for such office are tilled,” TEX. CONST.art.
XI, 5 11, paragraph three establishes special requirements for vacancies occurring on municipal
governing bodies. Paragraph three provides that “any vacancy               occurring on [a municipal]
governing body shall not befilled by appointment but must befilled by majority vote ofthe qualified
voters at a special election.” Id. (emphasis added). This special requirement for tilling vacancies
in municipal governing boards prevails over the more general language in paragraph two allowing
for the tilling of automatic-resignation   vacancies “pursuant to law.” See id. Furthermore, this
constitutional requirement prevails over a provision in a home-rule city charter. See TEX. CONST.
art. XI, 5 5 (providing that no home-rule city charter shall contain any provision inconsistent with
the Texas Constitution). Accordingly, we conclude that in amunicipality with terms exceeding two
years, a vacancy in the municipal governing body arising from an automatic resignation must be
filled by majority vote of the qualified voters of the city at a special election.

         Third, you ask whether a municipal officer who automatically resigns pursuant to article XI,
section 11 may hold over as a “de jure” officer. Request Letter, supra note 1, at 3. The Attorney
General has concluded that an officeholder who automatically resigns under article XVI, section 65
continues in office as a de jure officer by operation of the constitutional holdover provision, article
XVI, section 17, until his or her successor is appointed and qualities for office. See Tex. Att’y Gen.
Op. No. DM-377 (1996) at 4. In that opinion, this office noted that the holdover provision does not
generally apply in cases where an officer is disqualified to serve under another constitutional
provision, but found the automatic resignation more akin to a generic resignation than a
constitutional disqualification.  See id. at 5. The opinion also gave great weight to the purpose of
the holdover provision - the preservation of the orderly processes of government. See id. Applying
those considerations here, we see no reason why a municipal officer who automatically resigns
pursuant to article XI, section 11 would not also hold over pursuant to article XVI, section 17.
Therefore, we conclude that the council member at issue holds over in office until his successor
qualifies for office.

        In your third question, you suggest that the city may avoid holding a special election to till
the vacancy by allowing the council member to serve as a holdover until May 2001 “where no public
The Honorable Eugene D. Taylor       - Page 6     (JC-0318)




policy would be served by calling a special election.” Request Letter, supra note 1, at 3. In your
fourth question, you ask about the proper date to hold the election to fill the vacancy, if one is
required. See id. at 4. Because these issues are closely related, we address them together.

        Again, article XI, section 11 requires 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, 5 11. Here 120 days has passed since the council member
automatically resigned, and less than a year remains in the term. Therefore, you ask, in essence,
whether the city may avoid holding a special election to till the vacancy and allow the council
member to continue in office as a holdover until May 2001. We conclude that the city may not avoid
holding a special election to till the vacancy.

          Chapter 201 of the Election Code provides that if a vacancy in office is to be filled by special
election, the election shall be ordered as soon as practicable after the vacancy occurs. See TEX.
ELEC.CODEANN. 5 201.051 (Vernon 1986). “[A] special election to fill a vacancy shall be held on
the first authorized uniform election date occurring on or after the 30th day after the date the election
is ordered.” Id. 5 201.052(a). Section 41.001(a) of the Election Code provides for four uniform
election dates, including the third Saturday in January and the first Saturday in May. See id.
3 41 .OOl (Vernon Supp. 2000). In addition, section 41 .OOll provides that an election may be held
on an earlier nonuniform date if the Governor determines that an emergency warrants holding a
special election before the appropriate uniform election date. See id. 5 41.001 l(a); see also id.
5 41.001 l(b) (political subdivision must seek permission from Governor), (c) (proclamation for
emergency election must identify nature of the emergency). Thus, the city may hold an election on
the third Saturday in January or, if that is not possible, some date prior to the first Saturday in May,
provided the Governor determines that an emergency warrants holding an election on an earlier
nonuniform date. See Op. Tex. Sec’y State No. DAD-23 (1982) (concluding that although city had
not held election to fill a vacancy in city council within 120 days as required by Texas Constitution
article XI, section 11, a city may hold an election to fill the vacancy at the next uniform date or on
an earlier date if Governor declares an emergency exists).

         We note that section 41.004(b) provides that “[i]f the constitution requires a special election
to be held within a particular period after the occurrence of a certain event,” the uniform date
requirements of section 41.001(a) do not apply. See TEX. ELEC.CODEANN. § 41.004(b) (Vernon
 1986). This provision permits a city to hold an election on a nonuniform date in order to comply
with the article XI, section 11 requirement that a special election be held to fill a vacancy in a
municipal governing body within 120 days. See Op. Tex. Sec’y State No. MAM-1 (1984).
However, this exception authorizes an election on a nonuniform date only when “the constitution
requires a special election to be held within a particular period after the occurrence of a certain
event.” TEX. ELEC.CODEANN. 5 41.004(b) (emphasis added). We do not believe that this exception
to the uniform election date requirement authorizes an election on a nonuniform date after the
expiration of a constitutional deadline.
The Honorable    Eugene D. Taylor     - Page 7     (K-0318)




         With respect to whether the city is required to hold a special election, we note that this office
recently addressed whether a county commissioners court is required to make an appointment to fill
a vacancy in office when an officer automatically resigns by operation of article XVI, section 65.
See Tex. Att’y Gen. Op. No. JC-0140 (1999) (addressing commissioners court duty to fill vacancy
in the office of a constable who had automatically resigned by announcing his candidacy for
school district trustee more than one year before the expiration of his term). Attorney General
Opinion JC-0140 concluded that a commissioners court has no enforceable duty to make an
appointment to till such a vacancy, see id. at l-3, although it suggested that in some extraordinary
circumstances there may be a basis for removing commissioners for their failure to till a vacancy,
see id. at 3-4. In concluding that a commissioners court has no enforceable duty to till a vacancy,
the opinion relied primarily upon the absence in both the constitution and laws of this state “of any
specified consequences resulting from a commissioners court’s failure to exercise its power of
appointment.” Id. at 2. The opinion also relied upon the fact that a commissioners court could not
be mandamused to till the vacancy because appointment of officials is not a ministerial act. See id.
at 3.

         Because the vacancy at issue here must be tilled by an election, we believe Attorney General
Opinion JC-0140 is distinguishable.    Article XI, section 11 requires that “any vacancy or vacancies
occurring on such governing body         must be tilled 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, 4 11. The Election Code provides for a writ of
mandamus “to compel the performance of any duty imposed by law in connection with the holding
of an election      regardless of whether the person responsible for performing the duty is a public
officer.” TEX. ELEC. CODE ANN. 5 273.061 (Vernon 1986). A writ of mandamus is appropriate to
compel a public official to perform a ministerial act. See Anderson v. City of Seven Points, 806
S.W.2d 791,793 (Tex. 1991). “An act is ministerial when the law clearly spells out the duty to be
performed by the official with sufficient certainty that nothing is left to the exercise of discretion.”
Id. Article XI, section 11 clearly spells out the duty to be performed by the official charged with
ordering a municipal election to fill a vacancy with sufficient certainty that nothing is left to the
exercise of discretion.
The Honorable Eugene D. Taylor - Page 8         (JC-0318)




                                       SUMMARY

                        Article XI, section 11 of the Texas Constitution requires a
               city that has extended the terms of its city council members from two
               to three years to fill a vacancy resulting from a council member’s
               automatic resignation by holding a special election within 120 days.
               Such a vacancy may not be filled by appointment.        A city council
               member who automatically resigns holds over in office. A city that
               fails to hold a special election within 120 days after the date of the
               automatic resignation as required by article XI, section 11 may not
               avoid holding a special election until the holdover’s term expires.




                                              JOkN     CORNYN
                                              Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General - Opinion Committee
