i
,




                                The Attorney       General of Texas
                                             Demsber 19. 1985
JIM MATTOX
Attorney General


Supreme Court Euildlng         HonorableDaua Krlich                OpinionNo. J-M-395
P. 0. BOX 12548
Austin, TX. 78711.254S
                               LipscombCounty Attmmuey
512l4752501                    P. 0. Box 156                       Re: Whether a justice of the peace
Telex 910/874-1387             Poll&t, Texas 79034                 may simultaneouslyserve 88 a member
Telecopier 51214750268                                             of a city council

714 Jackson, Suite 700
                               Dear Mr. Rhrlich:
Dallas, TX. 75202.4506
214l7428944                         You request m Attorney General's Opinion on the office of
                               Justice of the Peace, PrecinctThree, LipscombCounty. The individual
                               who occupies this office announcedhis candidacyfor'the City council
4824 Alberta Ave., Suite 160
El Paso, TX. 799052793
                               of Follett,Texas, ,sgeneral law city. He won * seat 013the council,
915/53334&l                    and began serving as a member of the city council. city council
                               members 8erve witt.autcompensation. When he announcedhis candidacy
                               for city council,b,ehad over one year left on his unexpired term as
1001 Texas. Suite 700          justice of the prfsce. You ask the following questions about this
Houston, TX. 77002~3111
                               series of events:
713/22+5888

                                           1. IE a justice of the peace who has more than
808 Broadway, Suite 312                 one peer remainingof his unexpiredterm anuouuces
Lubbock, TX. 79401.3479                 his candidacyfor office of city councilmember of
SCW747.5239
                                        the city of Follett, Texas, does such anouncement
                                        constitum an automaticresignationof the office
4309 N. Tenth, Suite E                  of justim of the peace under articleXVI, section
McAllen, TX. 78601-1885                 65 of the Texas Constitution?
5121882-4547
                                           2. I:: the justice of the peace wins the
200 MaIn Plaza, suite 400               election and takes the oath of office for city
San Antonio. TX. 78205.2797             council mmber of the city of Follett, Texas, is
51212254191                             such jusl:!Lce
                                                     of the peace barred from holding his
                                        justice of the peace office by the dual office
An Equal Opportunity/
                                        holding ~?rovisiousof article XVI, section 40 of
Attlrmative Action Employer             the TexatlConstitution?

                                           3. Would holding both offices violate the
                                        separation of powers doctrine in article II,
                                        section I.of the Texas Constitution?

                                   Article XVI, section 65 of the Texas Constitutionprovides in
                               pert:




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RonorableDana   Ehrlich   -   Page 2 ,(JM-395)




            Sec. 65. Staggering Terms of Office - The
         followingofficer:, elected at the General Election
         in November, 1954, and thereafter,shall serve for
         the full terms prlrridedin this Constitution:

            (a) District Clerks; (b) County Clerks; (c)
         County Judges; (d'lJudges of County Courts at Law,
         County Criminal Courts, County Probate Courts and
         County Domestic Relations Courts; (e) County
         Treasurers; (f) Criminal District Attorneys; (g)
         County Surveyors:;(h) Inspectors of Hides and
         Animals; (I) County Commissionersfor Precincts
         Two and Four; (j) +stices of the Peace.

             . . . .

            Provided,hoverer, if any of the officersnamed
         herein shell annolu1ce
                              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 :.awsof this State or the United
         States other tha!;the office then held, at any
         time when the unsrpired term of the office then
         held shell exceed one (1) year, such announcement
         or such candidacT shall constitute au automatic
         resignation of the office then held, and the
         vacancy thereby created shall be filled pursuant
         to law in the sarw!manner as other vacancies for
         such office are f,llled. (Emphasisadded).

     A justice of the pes,ceis subject to this provision of the
constitution. The issue to be addressedis whether the office of city
council member is an "offi:e of . . . trust under the laws of this
State. . . .I' It is not an office of profit, since you inform us that
city councilmembers are no’tcompensated.

    In Ramirer.v. Flores, 505 S.W.2d 406 (Tex. Civ. App. - San
Antonio 1973, writ ref'd a.r.e.), the court determinedthat a county
commissionerwho became a :andidatefor school trustee automatically
resignedhis office as a comnissioner. The court stated that

         [ilt is settled in Texas that a trustee of an
         independent school district holds an office of
         trust under the laws of this state. Kimbroughv.
         Baruett, 93 Tax. 301, 55 S.W. 120 (1900);Lee v.
         Leonard IndependentSchool District,24 S.W.2d 449
         (Tex. Civ. App. - TCexarkana1930, writ ref'd).




                                     p. 1810
HonorableDana Khrlich - Pz.ge3   (JM-395)




505 S.W.2d at 409. The ca:sesrelied on in Ramirez v. Flores state
that school trustees are :?ublicofficers. Kimbrough v. Barnett, 55
S.W. 120 (Tex. 1900) reliei.on the followingdefinitionof "office":

         Public office is the right, authority, and duty
         created and conferred by law, by which, for a
         given period, eil:herfixed by law, or enduring at
         the pleasure of zhe creatingpower, an individual
         is invested with some portion of the sovereign
         functions of the government, to be exercised by
         him for the benef'it
                            of the public.

55 S.W. at 122 (quotingMechem on Public Officers, 51). The court
then enumeratedmajor powerzsof the school trustees as follows: (1)
to adopt rules, regulations,and bylaws, (2) to select officersof the
board, (3) to control and 'managethe schools, (4) to hold title to
school property, (5) to 8t.eand be sued, (6) to employ teachers and
disburse the school fund. Finally, trustees   exercise duties derived
from the law itself, not SCI: by contract,and the terms of office are
fixed by statute. -Id.

     Kimbroughv. Bernett stated the definitionof "officer"accepted
in Texas law today. ---
                    See Gmen v. Stewart,516 S.W.2d 133 (Tex. 1974);
Attorney General Opinion MW-415          see also Attorney General
OpinionMWi418 (1981). The Kamirezv. Flores court used the Kimbrou h
test to determine what constitutes "an officer of trust   -aitii
articleXVI, section 65. 'Rnrs,the individualwho holds an office of
trust

         is invested with some portion of the sovereign
         functions of the government, to be exercised by
         him for the benefit of the public.

Kimbrough v. Barnett, --
                       suEra at 122.     See also Attorney General
OpinionsJ&l-132(1984);E-767 (1976).

    A member of the city councilof a home rule city holds an "office
under the state." Willis J. Potts, 377 S.W.2d 622, 625 (Tex. 1964)
(construingarticle III, section 19). He engages in governmental
activities and exercises ,I portion of the sovereign powers of the
state in matters such as public health, traffic regulation, and
keeping of the peace. --
                      Willis v. Potts,supra, at 624-25.

    Members of the city council of a general law city also engage in
gove-ntal    activities and exercise a position of the sovereign
powers of the state. The city council may enact ordinances for the
government,peace, and trade of the city. V.T.C.S. art. 1011. The
city council has zoning power. V.T.C.S. arts. lOlla-1011j. It has
various specific powers to make regulations concerning the public




                              p. 1811
HonorableDana Rhrlich - Page 4 (JM-395)




health, public peace, control of the streets,taxation and licensing.
V.T.C.S. arts. 1015, 1016. See also V.T.C.S. arts. 1140, 1145, 1146
(powers of board of aldermen of general law city incorporatedunder
article 1133, V.T.C.S.). !Phe city council also has authority to
establishthe powers and ccmpensationof officerswhere these matters
are not establishedby law. Members of the city council of a general
law city are elected for a specificterm and exercisepowers conferred
by law, not contract. V.T.C.S. arts. 978, 979; see also Tax. Coast.
art. XI, 611.

     We conclude that a med>er of the city council of a general law
city holds an "office of s . . trust under the laws of this state"
within article XVI, section 65 of the Texas Constitution. In answer
to your first question, the justice of the peace who announced his
candidacy for city counci:.member when he had more than one year
remainingon his term autonla.ticallyresignedhis office as justice of
the oeace uursuant to .urticle XVI. section 65 of the Texas
Constitution: Ramires v. Flares, &,        Attorney General Opinions
JM-132 (1984); H-767 (1976); C-43 (1963). Since we have concluded
that the individualin quet;tion no longer holds the office of justice
of the peace, we need not considerwhether the other provisionsabout
which you inquire would tsar him from holding both offices. Con-
sequently.we will not answer your second and third questions.

                            SUMMARY

            A member of ths city council of a general law
         city holds an ">:Efice. . . of trust under the
         laws of this State" within articleXVI, section 65
         of the Texas Corstitution. If a justice of the
         peace becomes s candidate for the city council
         position when mctre than a year remains on his
         term, he automatically resigns his office as
         justice of the peace pursuant to article XVI,
         section65.




                                      JIM    MATTOX
                                      AttorneyGeneral of Texas

JACX HIGRTOWER
First AssistantAttorneyGeneral

MARYIUZLLRR
ExecutiveAssistantAttorney General



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HonorableDana Rhrlich - Page 5 (m-395)




ROBERT GP.AY
SpecialAssistantAttorneyGeneral

RICK GILPIN
Chairman,Opinion Committee

Preparedby Susan L. Garrison
AssistantAttorneyGeneral




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