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Resign to Run? If a City Official in Texas Runs for Another Office, Is Resignation Required?

Resign to Run? If a City Official in Texas Runs for Another Office, Is Resignation Required?

It seems a day does not pass without speculation or news about elected officials announcing retirement and/or facing challenges for office, on the national level and here in Texas. What happens if a city official announces his or her intent to seek another office? Must they step down from their current position?

Generally speaking, Texas law bars officials from holding dual positions and the Texas Constitution does contain a “resign-to-run” rule stipulating that once an official formally announces a candidacy for another elected position, they must vacate their current role. That being said, there are, of course, exceptions to the rule.

For example, police officers typically are not subject to the resign-to-run rule because, while they are agents of the state, most police officers do not govern in their individual roles. This determination was made in a 2005 opinion by the Texas Attorney General (Opinion No. GA-0365).

But what about elected officials? Another scenario where the resign-to-run provision does not apply involves home rule cities. Still, this exception only comes into play if the city council members’ terms are two years or less in duration. Simply put, in a home rule city whose council members serve two-year terms, “resign-to-run” does not apply and the filing of a council member to run for another public office does not trigger an automatic resignation of that council member.

Taking a broader view, The Texas Constitution requires that certain state, county, and city officials must “resign to run” for other public offices in certain circumstances.  Article 16, Section 65 of the Texas Constitution is the so-called “resign-to-run” provision; it provides a laundry list of public offices for which resign-to-run applies, but it does not automatically apply to city council members.

Pursuant to Article 11, Section 11 of the Texas Constitution, Article 16 Section 65(b) only applies to a home rule city if the city has by charter provided that a city council member’s term is longer than two years. So again, if a home rule city’s charter provides that city council members serve exactly two years, then its city council members are not subject to the “resign to run” rule and no automatic resignation is triggered by a council member’s filing to seek election to another public office.

Now, what if the home rule city wanted a council member with a two-year term to resign-to-run? Well, if its charter called for that, then it would be required. It is up to the home rule city how to handle that scenario in the city charter.

Indeed, in examining this question, a 2004 Texas Attorney General Opinion noted that there is no 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” (Opinion No. GA-0217). Furthermore, “it is generally recognized that the authority for a home-rule city to remove one of its members must be found in the city’s charter,” the opinion added.

Finally, if a city council member vacates or is removed before the end of his or her term, then how is that position filled? Typically, as is the case with general law cities, a special election is held. But, as noted by Texas Municipal League legal counsel Heather Mahurin in a 2014 Q&A, “a home rule city, may avoid the special election requirement.” That is if the city charter or a charter amendment provides “a procedure for filling a vacancy occurring on its governing body for an unexpired term of 12 months or less, then a home rule city may appoint a qualified candidate, in accordance with its charter, to fill the vacancy,” she wrote.

In sum, if you see an elected official through their hat into the ring for another public office, don’t assume they are effectively resigning from their current post. After all, if certain circumstances apply, they might be able to stay in one role while running for another.

Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our municipal law practice can be found here.

 

Drew Shirley is a Houston attorney with experience in tort and business litigation and business and real estate transactions. Shirley graduated cum laude from Duke University, then received two advanced degrees – a master’s in journalism and a law degree – from the University of Texas at Austin. He joined the Randle Law Office in 2015.

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