                                  The Attorney        General of Texas

JIM MATYOX                                          March 6, 1984
AttorneyGeneral


Supreme Court Building           Honorable Patrick J. Ridley           opinion No. JM-132
P. 0. Box 12549                  Bell County Attorney
Austin. TX. ?9?11- 2549          P. 0. Box 474                         Re:   Automatic resignation of
51214752501                      Belton, Texas   76513                 county comissioner from office
Telex 9101974~1357
Telecopier  5121475-0256
                                                                       by filing for candidacy for
                                                                       another office

714 Ja~hscm. Suite 7W            Dear Mr. Ridley:
Dallas. TX. 75202.4506
2141742.8944
                                      You have asked.whether. by reason of article XVI, section 65 of
                                 the Texas Constitution, a county commissioner with more than one year
4924 Alberta   Ave.. Suite 100   of his term remaining, has automatically vacated his office by
El Paso. TX. 79905.2793          applying with a political party to file for election to the board of
915/533-3464                     directors of a water improvement district, an office~for which he was
                                 ineligible by reason of special circumstances. You have stated, and
..d1 Texas. Suite 700
                                 we will assume, that the commissioner at issue is a land developer and
Hws,on.   TX. 77002.311 t        is ineligible for this position under section 50.026 of the Water
?131223-5895                     Code, which bars land developers from membership on the governing body
                                 of a water district. It is our opinion that the commissioner has
                                 vacated his county position, pursuant to article XVI, section 65 of
606 Broadway. Suite 312
Lubbock. TX. 794013479
                                 the Texas Constitution, regardless of his ineligibility to hold the
9061747~5239                     office for which be has filed.

                                      A pertinent portion of article XVI, section 65 was approved by
4309 N. Tenth. Suite S
                                 the voters In 1958:
McAllen. TX. 78501-1695
5121652-4547
                                          Provided, however. if any of the officers named
                                          herein [County officials] shall announce their
200 Main Plaza. Suite 400                 candidacy, or shall in fact become a candidate, in
San Antonio. TX. 79205.2797
5121225-4191
                                          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
An Equal Opportunity/                     then held, at any time when the unexpired term of
Affirmative Action Employer               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 vacany thereby created shall be
                                          filled pursuant to law in the same manner as other
                                          vacancies for such office are filled.
r                                     Section 65 does not violate the equal protection clause of the
                                 federal Constitution. Clements v. Fashing, 102 S.Ct. 2836 (1982). A



                                                          p. 559
Honorable Patrick J. Ridley - Page 2      (JM-132)

                                                                            -\




comparable provision applies to municipalities. -Cf. Tex. Const.. art.
XI. 011.

     The position of water district board director is unquestionably
an  "office of trust'! under section 65. In an opinion based upon
similar facts, this office concluded that a justice of the peace, upon
announcing as a candidate for director of a water control and
improvement district, automatically resigned his office. when there
was more than one year remaining in his term.        Attorney General
Opinion H-767 (1967). Section 65 has also been construed to effect
the automatic resignation of a county conxuissionerwho seeks election
to a school board with more than one year remaining in his term.
Ramirez v. Flares. 505 S.W.2d 406 (Tex. Civ. App. - San Antonio 1973,
writ ref'd n.r.e.); Attorney General Opinion C-43 (1963).

     Under the plain language of article XVI, section 65, one's mere
announcement for another office constitutes an automatic resignation.
See Attorney General Opinion WW-1253 (1962) (announcement made by
press release published in a newspaper). It is irrelevant that the
office holder announcing his candidacy for another office is
ineligible on other grounds to assuma the position for which he has
announced. Therefore, a vacancy in the office of county conmissioner
                                                                            ?
presently exists.

                               SUMMARY

              A county commissioner who files an application
          to place his name on the ballot in an election for
          the directorship of a water district automatically
          vacates his office if more than one year remains
          in his term, even though he Is ineligible for the
          office of water district director.




                                              JIM     MATTOX            -
                                              Attorney General of Texas

TOM GREEN
First Assistant Attorney   General

DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared by David Brooks
Assistant Attorney General                                                   ?




                                     p. 560
Honorable Patrick J. Ridley - Page 3   (JM-132)




APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Jon Bible
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
Bruce Youngblood




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