Fort Worth Court of Appeals holds candidate on ballot for two separate offices resigned second office by law, not the first, once taking oaths

City of Forest Hill, et al. v. Michielle Benson, et. al., 02-17-00346-CV (Tex. App. – Fort Worth, July 12, 2018).

This is a dual-office holding/statutory construction case where the Fort Worth Court of Appeals affirmed an order removing the official from the second position to which she was elected.

City of Forest Hill has a seven-member council.  the City’s public library is a library district established pursuant to chapter 326 of the local government code and the board of trustees is elected. At the same time as her candidacy for Place 3 on the council, Benson ran for Place 5 on the board of trustees. Benson filed the city-council application before she filed the library-board application. The City did not prohibit Benson from running for both offices, her name subsequently appeared on the ballot as a candidate for both offices, and she was elected to both offices. She was sworn in first as a city-council member and second as a library-board trustee on the same day. The City asked and received an Attorney General opinion the offices were incompatible. The AG opined that by taking the oath for the second position (Place 5 library trustee) she automatically resigned her position on the council. The Council “accepted” her resignation (which she disputed existed) and kicked her off the council. Benson sued and received a temporary injunction prohibiting enforcement of the City’s acceptance and allowing her to remain on the council. The trial court also permanently enjoined the City from interfering with Benson’s occupation of Place 3 of the city council, awarded Benson attorney’s fees, and issued findings of fact and conclusions of law. The City appealed.

The case boiled down to statutory construction between Texas Election Code §§141.033 – 034 and §201.025. Section 141.033 states the second application is invalid for an election (then arguably she could only have been elected to the first office) and §201.025 states the first office is vacated upon being qualified for the second. The City asserts it could not bring a §141.033 challenge because §141.034 states it must wait until after the first early voting ballot is cast.  However, the time limits within §141.034 involve challenges to form, content, or procedure, none of which are present. By contrast, §141.033 addresses the invalidity of an application that a person submits for a place on the ballot for an office that the person is “not permitted by law” to hold. As a result, §141.033 applies.   Under §201.025 the statute applies only to a person who is a current officeholder when she accepts and qualifies for the second office. However, Benson was elected to the city-council and library-board offices on the same day, and she took the oath of office and qualified for both offices on the same day. The court held “construing the term ‘officer’ to include a person who only became an officer on the same day that she qualified for the ‘other’ office would be absurd—it cannot be presumed that Benson intended to resign her city-council position on the very same day that she took the oath of office for that position.”  Like §141.034, §201.025 has no application on these facts.

The dissent (opinion found here) essentially argued that nothing in §201.025 says you must already hold the position first and no actual “law” prohibited her from holding the position anyway.  As a result, incompatibility standards should apply which are incorporated in §201.025.  However, the majority countered by asserting the City did not brief incompatibility as a ground and the dissent’s definition of the term “law” used in the sections is incorrect.

If you would like to read this opinion click here. Panel consists of Justice Walker, Justice Meier and Justice Kerr. Opinion by Justice Meier. Justice Kerr dissented.   The attorney listed for the City is Robert F. Maris.  The attorney listed for Benson is Harold D. Hammett.