Constitutional “hold over” provision controls over “resign to run” rule says 13th Court of Appeals
Richard Bianchi v. The State Of Texas, 13-14-00303-CV (Tex. App. – Corpus Christi, August 21, 2014) This is a quo warranto case where the central issue is the interaction between the “resign to run” rule under the Texas Constitution and the constitutional “hold over” provision. The 13th Court of Appeals held the “hold over” provision controls regardless of the automatic nature of the “resign to run” rule. Bianchi was the County Attorney for Aransas County who was elected to office. He announced to the County Commissioner’s Court that he was running for County Judge and that this means he was automatically resigning his position under TEX. CONST. art. XVI, §65(b). While the Commissioner’s Court had the right and power to appoint his successor, they chose not to do so, stating in depositions that he was doing a good job. Bianchi stated on numerous occasions in the record that he did resign but was obligated under the Texas Constitutional “hold over” provision to continue with his office until his replacement is appointed. TEX. CONST. art. XVI, §§ 17. The District Attorney believed the automatic nature of the “resign to run” rule in the Constitution trumped the hold over provision and that the resignation was automatic in all respects. He brought suit on behalf of the State of Texas via quo warranto against Bianchi for illegally holding office. The trial court issue an order removing Bianchi and issued findings of facts and conclusions of law. Bianchi appealed. This is a 31 page opinion where a large part of the opinion is the reciting of evidence, testimony, and findings of the trial court. The bottom line is the Commissioner’s Court could have appointed a replacement but chose not to do so. This left Bianchi in the position of County Attorney as a hold over while running for another office. The trial court started the legal analysis noting the ancient nature of a quo warranto proceeding then went into the nature of the two constitutional provisions, then statutory construction principles. In the end the court held the resign to run rule is subject to the hold over provision and since the Commissioner’s Court has made the express decision not to appoint a replacement, Bianchi is still lawfully holding office. That decision is not subject to collateral attack in court as it is in the sole discretion of the Commissioner’s Court. The State did not sue the Commissioner’s Court, only Bianchi, so their decision cannot be attacked as arbitrary. As a result, the trial court order is reversed and judgment is rendered for Bianchi to remain in office until a successor is appointed. The court went on to cite to another reason for its opinion, holding “[a]s well intentioned and diligently reasoned as it was, the district court’s decision would have uprooted a firmly founded and widely accepted understanding of a critical aspect of Texas constitutional law that is of vital importance to certain public officials. . . The Texas quo warranto statute was never intended to allow for judicial second-guessing of decisions committed to the sound discretion of the County Judge and Commissioners Court. Such decisions are best left to locally-elected public officials who are in the best position to judge the needs of these particular issues and to exercise sound discretion in addressing them. We will not disturb the orderly balance of powers as expressed by the will of the people…” If you would like to read this opinion click here. Panel: Chief Justice Valdez, Justice Perkes, and Justice Longoria. Opinion by Chief Justice Valdez. The attorney listed for the State is Michael E. Welborn. The attorneys listed for Bianchi are Audrey Mullert Vicknair and C.M. Henkel, III
