                                 ATTORNEYGENERAL                       OF TEXAS
                                               GREG        ABBOTT




                                                    July 14,2004



 The Honorable Hector M. Lozano                         Opinion No. GA-02 17
 Frio County Attorney
 500 East San Antonio Street                           Re: Whether article XI, section 1 l(a) of the Texas
 Box 1                                                 Constitution applies to city officers with two-year
 Pearsall, Texas 78061-3100                            terms or city police officers, and whether a home-rule
                                                       city with two-year terms may provide in its charter
                                                       that a mayor or council member who becomes a
                                                       candidate for another office automatically vacates the
                                                       current office (RQ-016%GA)

 Dear Mr. Lozano:

         You ask several questions about the application of the automatic resignation proviso in article
XI, section 1 l(a) of the Texas Constitution to city officers and police officers in the City of Pearsall.
In particular, you wish to know whether the proviso applies to city officers with two-year terms or
city police officers, and whether a home-rule city with two-year terms may provide in its charter that
a mayor or council member who becomes a candidate for another office automatically vacates the
current office.’

I.       Factual Backmound           and Chestions

          As background to your request, you explain that an elected “mayor/councilmember”           and an
appointed municipal judge, each of whom serves a two-year term, filed for the office of Frio County
commissioner or constable with over a year left in their municipal terms. Request Letter, supra note
 1, at 1. In addition, three city police officers have filed for the office of sheriff or constable. See id.
The City of Pearsall has home-rule charter provisions that provide that if the mayor or any member
of the city council becomes a candidate for another office “he or she shall immediately vacate his
or her place.” Id. (quoting PEARSALL, TEX., HOME-RULE CITY CHARTER $0 3.02-.03). In addition,
the Pearsall Police Department Policy Manual and Code of Conduct states: “No employee shall
become a candidate for nomination or election of any public or political office.” Id. at 2 (quoting
PEARSALL,TEX.,POLICEDEP’T              POLICYMANUALANDCODEOFCONDUCT$~).



          ‘See Letter from Honorable Hector M. Lozano, Frio County Attorney, to Honorable Greg Abbott, Texas
Attorney General, at 1-4 (Jan. 14,2004) (on tile with Opinion Committee, also available at http://www.oag.state.tx.us)
[hereinafter Request Letter].
The Honorable Hector M. Lozano              - Page 2     (GA-02 17)




            Given these facts, you ask the following specific questions:

                        1. Whether an uncompensated council member elected to a term of
                       2 years and who has more than 1 year remaining of his unexpired
                       term who announces         his candidacy     for office of County
                       Commissioner/Constable      automatically resigns his office under
                       Article XI, Section 11 of the Texas Constitution.

                       2. Whether Article XI, Section 11 of the Texas Constitution, the
                       resign to nm provision prevails over a Home Rule Char[t]er provision
                       stating “shall immediately vacate” under Article XI, Section 5 of the
                       Texas Constitution.

                   3. Whether the appointed Judge, who serves a term of 2 years with
                   compensation and has more than 1 year re[main]ing of his unexpired
                   term, who armounces his candidacy for office of County Constable[,]
                   automatically resigns his office under Article XI, Section 11 of the
                   Texas Constitution or under any other applicable provision.

                   4. Whether the Police officers fall within Article XI, Section 11 of
                   the Texas Constitution and whether the resign to run provision
                   applies to them. If said Article XI, Section 11 does not apply,
                   whether these officers have to resign their position upon announcing
                   their candidacy for an elected position.

Id. at 4.

II.         Analysis

        A.         Whether Article XI, Section 11 Applies to City Officers with Two-Year Terms

                First, we address your two questions about article XI, section 11 ‘s application to the
elected council member and the appointed judge, each of whom serves a two-year term. See id.
(questions 1 and 3). Article XI, section 11 provides in pertinent part:

                        A Home Rule City mayprovide 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 ofice 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, that such officers,
                   elective or appointive, are subject to Section 65(b), Article XVI, of
                   this constitution, providing for automatic resignation in certain
 The Honorable Hector M. Lozano             - Page 3         (GA-02 17)




                   circumstances, in the same manner as a county or district officer to
                   which that section applies.

TEX. CONST.    art. XI, 0 1 l(a) (emphasis added). Article XVI, section 65(b) provides that if certain
district, county, and precinct officers announce a candidacy or become a candidate for another
elective office “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.” Id. art. XVI, 5 65(b). Article XI, section 1 l(a) applies the article XVI, section 65(b)
automatic resignation proviso to elected or appointed municipal officers whose term in office has
been extended by charter beyond two years. See id. art. XI, 5 1 l(a); Tex. Att’y Gen. Op. No. M-586
(1970) at 4 (concluding that the article XI, section 11 automatic resignation proviso applies only to
municipal officers whose term of office exceeds two years); see also Tex. Att’y Gen. Op. Nos.
JC-0562 (2002) at 4, JC-0403 (2001) at 1, ‘3, JM-553 (1986) at 3-4. Because the council member
and judge at issue serve only two-year terms, they are not subject to the article XI, section 11
automatic resignation proviso.

           With respect to your question about whether the municipal judge may have automatically
 resigned “under any other applicable provision,” Request Letter, supra note 1, at 4 (question 3), we
 are not aware of any general provision that provides for the automatic resignation of municipal
judges who file for another office. Canon 5(3) of the Judicial Code of Conduct provides that “[a]
judge shall resign from judicial office upon becoming a candidate in a contested election for a
 non-judicial office either in a primary or in a general or in a special election,” but does not apply to
 a municipal judge. TEX. CODE JLJD. CONDUCT, Canon 5(3), reprinted in TEX. GOV’T CODE ANN.,
 tit. 2, subtit. G. app. B (Vernon Supp. 2004); see also id. Canon 6(C)(l)(e) (“A. . . municipal court
judge shall comply with all provisions of this Code, except the judge is not required to comply. . .
with Canon 5(3).“). Nor have we located a specific statute applying to a municipal judge in the City
 of Pearsall that provides for automatic resignation.2



         B.        Whether Article XI, Section 11 Applies to City Police Officers

                Next we address your questions about the police officers who have filed for office.
You ask if the police officers fall within article XI, section 11. See Request Letter, supra note 1, at
4 (question 4). If article XI, section 11 does not apply to them, you also ask whether the police
officers have to resign. See id.

        The article XI, section 11 automatic resignation proviso applies only to elected and appointed
municipal oficers. See TEX. CONST. art. XI, $ 1 l(a). The general test in Texas law for whether a
person holding a public position is an officer is whether the person exercises “any sovereign function


         *See, e.g., TEX. GOV’T CODEANN. 0 30.010975 (Vernon 2004) (“If the municipal judge or an assistant
municipal judge [of the City of Carrollton] annOunces a candidacy or becomes a candidate in a general, special, or
primary election, for any office of profit or trust under the laws of the state or the United States, the announcement or
the candidacy constitutes an automatic resignation of the appointment, effective the date of the announcement or
candidacy.“).
 The Honorable Hector M. Lozano               - Page 4         (GA-0217)




of the government . . . for the benefit of the public largely independent of the control of others.”
Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578,583 (Tex. 1955); see Tex. Att’y Gen. Op. No.
JC-0562 (2002) at 2-3 (applying Aldine test to determine whether a position was an office for
purposes of article XI, section 11 and article XVI, section 65); see also JC-0318 (2002) at 4 (an
individual holding an office under article XI, section 11 “‘is invested with some portion of the
sovereign functions of the government, to be exercised by him for the benefit of the public”‘)
(citation omitted). Although under ordinary circumstances, a municipal police officer performs his
duties under the direction and control of others, and thus does not hold an oftice, see Tex. Att’ y Gen.
LO-93-027, at 2, Tex. Att’y Gen. Op. No. DM-212 (1993) at 2, the determination whether a
particular police officer holds an office for constitutional purposes involves questions of fact and
cannot be resolved in an attorney general opinion, see Tex. Att’y Gen. Op. No. DM-212 (1993)
at 2.

         Assuming that the police officers at issue perform their duties under the direction and control
of others and are not subject to article XI, section 11, we address your question about whether the
police officers “have to resign their position upon announcing their candidacy for an elected
position.” Request Letter, supra note 1, at 4 (question 4). You appear to ask our guidance about the
effect of the Pearsall Police Department Policy Manual and Code of Conduct provision stating that
“[n]o employee shall become a candidate for nomination or election of any public or political
office.” Id. at 2 (quoting PEARSALL,     TEX.,  POLICEDEP’T POLICY MANUAL AND CODE OF CONDUCT
$ S).3 In deference to city officials, this office generally refrains from construing municipal charters
and ordinances. See Tex. Att’y Gen. Op. No. GA-01 30 (2003) at 3 (“This office does not ordinarily
construe city charters or ordinances, in deference to municipal officials’ authority to construe their
municipality’s ordinances and charters.“); see also Tex. Att’y Gen. Op. Nos. GA-0068 (2003) at 2
n.2, JC-0143 (1999) at 3, JM-846 (1988) at 1. Moreover, based on the information you have
provided, we cannot determine whether the policy manual and code of conduct requires the police
officers to resign. This issue should be addressed by the city attorney, who generally advises the city
and the police department regarding personnel matters and who will have access to the entire policy
manual and code of conduct and knowledge about the city’s past employment practices.

          C.       Whether the City of Pearsall Home-Rule Charter Provisions are a Permissible
                   Exercise of Home-Rule Authority

                   Finally, we address your question about the City of Pearsall home-rule charter
provisions     providing that if a council member or mayor “shall file to become a candidate for



          ‘You do not ask us to address the policy’s validity or whether it may be constitutionally applied under these
facts. See, e.g., Hickman v. City ofDallas, 475 F. Supp. 137, 141 (N.D. Tex. 1979) (holding that a Dallas City Charter
provision, under which a city employee who became a candidate for office would forfeit city employment, violated the
United States Constitution, as applied to a particular employee, a police offtcer, because the City did not have a sufficient
interest in prohibiting the employee from funning for a nonpartisan election in a different city); Davis v. City of Dallas,
992 S.W.2d 621, 624-25 (Tex. App.-Dallas 1999, no pet.) (“The City has an interest in maintaining the loyalty,
efficiency, and nonpartisanship of its employees. To further that interest, the City may prevent its employees from
running for positions that could give the employee power over his supervisors. Here, Davis [a police department security
offrcer] was terminated for becoming a candidate for the city council of the very city that employed him. This is
precisely the type of political activity the Hickman court noted the City of Dallas could justifiably prohibit.“).
 The Honorable Hector M. Lozano               - Page 5          (GA-02 17)




nomination or election to any public office,” other than the office then held, “he or she shall
immediately vacate his or her place” as council member or mayor. See Request Letter, supra note
1, at 4; see also id. at 1 (quoting PEARSALL,TEX., HOME-RULE CITYCHARTER $0 3.02-.03). Another
charter provision states that vacancies in the city council and mayor’s office, “where the same do not
exceed two at any one time, shall be filled by a majority vote of the remaining councilmembers and
shall serve only until the next general City Council election.” Id. at 2 (quoting PEARSALL,      TEX.,
HOME-RULECITYCHARTER§ 3.09).

         You ask whether the charter provisions, which provide for the automatic resignation of a
mayor or council member serving a two-year term of office, are a permissible exercise of home-rule
authority under article XI, section 5 of the constitution.   See Request Letter, supra note 1, at 4
(question 2). Although this office does not construe city ordinances or charter provisions, we make
an exception when asked to determine whether such provisions conflict with federal or state law.
See Tex. Att’y Gen. Op. No. GA-0068 (2003) at 2 n.2. We limit our analysis to charter provisions
affecting the office of mayor or council member in home-rule cities with two-year terms.

         “A municipality is a home-rule municipality if it operates under a municipal charter that has
been adopted or amended as authorized by Article XI, Section 5, of the Texas Constitution.” TEX.
Lot. GOV'TCODE ANN. 0 5.004 (Vernon 1999). Article XI, section 5 provides that ‘Znocharter or
any ordinance passed under said charter shall contain any provision inconsistent             with the
Constitution of the State, or of the general laws enacted by the Legislature of this State.” TEX.
CONST.art. XI, 8 5. Aside from that limitation, a home-rule municipality “has full power of local
self-government.”    TEX. Lot. GOV'TCODE ANN. 5 5 1.072(a) (Vernon 1999).

         A home-rule city charter providing for the automatic resignation of a mayor or council
member serving a two-year term of office is not inconsistent with the Texas Constitution.           See
generally Willis v. City ofFort Worth, 380 S.W.2d 814,816 (Tex. Civ. App.-Fort Worth 1964, no
writ) (finding “nothing in either the Federal or State Constitutions which expressly or impliedly
would prohibit efficacy of. . . or which would inhibit [the] enforcement” of a city charter provision
stating, “If a member of the Council shall become a candidate for nomination or election to any
public office, other than that of Councilman, he shall immediately forfeit his place in the Council”).4
The constitution does not govern removal of home-rule city offlcers.5 Article XVI, section 30(a)


         4See also Clements v. Fashing, 457 U.S. 957,972 (1982) (holding that the Texas Constitution’s article XVI,
section 65 automatic resignation proviso violated neither the Equal Protection Clause nor the First Amendment of the
United States Constitution).

          5When the constitution prescribes the mode for removing an officer, the legislature may not authorize removal
in another mode. See Dorenfield v. State ex rel. Allred, 73 S.W.2d 83,86-7 (Tex. 1934). Article V, section 24 provides
for the removal of county offkers: “County Judges, county attorneys, clerks of the District and County Courts, justices
of the peace, constables, and other county officers, may be removed by the Judges of the District Courts for
incompetency, offkial misconduct, habitual drunkenness, or other causes defined by law, upon the cause therefor being
set forth in writing and the finding of its truth by a jury.” TEX.CONST.art.V, 9 24. Article XV, section 7 requires the
legislature to “provide by law for the trial and removal from office of all officers of this State, the modes for which have
not been provided in this Constitution.” Id. art. XV, $7. The Texas Supreme Court has held that these provisions do
not apply to city officers. See Bonner v. Belsterling, 138 S.W. 571,575 (Tex. 1911). But see State v. Bradley, 956
                                                                                                               (continued.. .)
The Honorable Hector M. Lozano              - Page 6         (GA-02 17)




generally provides for two-year terms of office. See TEX. CONST. art. XVI, 9 30(a) (“The duration
of all offices not fixed by this Constitution shall never exceed two years.“). While it governs the
term of an office, it does not preclude a home-rule municipality from regulating municipal officers’
conduct in office or providing for the early removal of a mayor or council member who engages in
prohibited conduct. See generally Bonner v. Belsterling, 138 S.W. 571,575 (Tex. 1911) (holding
that article XVI, section 30 did not give an officer a “right to hold an office contrary to the will and
wishes of the people he represents” or prohibit the legislature from granting to a city “the right to
remove, by process of the recall provision, any officer who failed to discharge his duty in a manner
satisfactory to the people of that city”). Article XI, section 1 l(a) provides for the automatic
resignation in certain circumstances of municipal officers whose terms of office exceed two years.
It does not apply to officers holding two-year terms and does not prohibit a home-rule municipality
from regulating their conduct. See TEX. CONST. art. XI, 9 1 l(a). Likewise, its requirement that
vacancies in office must be filled by election only applies to offices with terms exceeding two years.
See id. art. XI, 9 11 (b); Tex. Att’y Gen. Op. No. GA-0046 (2003) at 2 (noting that article XI, section
11 “authorizes a city to provide for a longer term than two years for its officers and, if it does so,
requires it to fill all vacancies on its governing body by election”).6

        Nor have we located any statute that would preclude a home-rule city from providing for
automatic resignation of a mayor or council member serving a two-year term of office. Rather the
Local Government Code grants a home-rule municipality general authority to:

                   (1) create offices;

                   (2) determine the method for selecting officers; and

                   (3) prescribe    the qualifications,      duties,   and tenure     of office    for
                       officers.

TEX.Lot. GOV’TCODE ANN. $26.041 (Vernon 1999). Aside from this provision, “the legislature
has remained silent on the issues of removal from or forfeiture of oftice in home-rule cities. Thus,
it is generally recognized that the authority for a home-rule city council to remove one of its
members must be found in the city’s charter.” Lipscomb v. Randall, 985 S.W.2d 601,605 (Tex.
App.-Fort Worth 1999, pet. dism’d) (citing Garza v. Garcia, 785 S.W.2d 421, 422 (Tex.
App.-Corpus Christi 1990, writ denied)). Appellate courts have held that a home-rule city charter



S.W.2d 725,736 (Tex. App.-Fort Worth 1997) (concluding that article XV, section 7 applied to the office of mayor of
a general-law city), rev’d on othergrounds, 990 S.W.2d 245,247 (Tex. 1999) (expressly not considering constitutional
issues because case could be resolved on other grounds).

          6Article XI, section 1 l(b) provides as follows: “A municipality so providing a term exceeding two (2) years
but not exceeding four (4) years for any of its non-civil service offricers 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 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, $ 1l(b) (emphasis added).
The Honorable Hector M. Lozano       - Page 7      (GA-02 17)




may provide for the automatic forfeiture of office upon conviction of a crime involving moral
turpitude or for failure to attend city council meetings. See id. (holding that, under the home-rule
charter, city council member had automatically forfeited his seat on the town council when he was
convicted in municipal court of two crimes involving moral turpitude); see aZso City of Alamo v.
Garcia, 960 S.W.2d 221, 226 (Tex. App.-Corpus Christi 1997, no pet.) (holding that trial court
lacked authority to interfere with self-enacting city charter provision providing for office forfeiture
by city council member for failure to attend meetings). Similarly, we believe a court would conclude
that a home-rule city with two-year terms may provide in its charter that a mayor or council member
who becomes a candidate for another office automatically vacates the current office.
The Honorable Hector M. Lozano      - Page 8       (GA-0217)




                                        SUMMARY

                       Municipal officers who serve two-year terms are not subject
               to the automatic resignation proviso in article XI, section 11 of the
               Texas Constitution. A police officer who performs his or her duties
               under the direction and control of others is not an officer subject to
               article XI, section 11. A home-rule city with two-year terms may
               provide in its charter that a mayor or council member who becomes
               a candidate for another office automatically vacates the current office.




BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General, Opinion Committee
