HARLINGEN — City Attorney Mark Sossi has issued a legal opinion clearing the way for City Commissioner Frank Puente, a candidate for the state House of Representative’s District 37 seat, to run for election to his District 2 seat.
In a memorandum to City Manager Gabriel Gonzalez, Sossi wrote Puente could run for the District 2 position while seeking election to the state House seat.
“I’m excited and very happy with the opinion because it gives me the opportunity to run for my seat on the city commission,” Puente said Thursday.
As the state primary election’s December deadline approached, Puente filed for election in the race for the state House seat, deciding against seeking a second term as the city’s District 2 representative.
Then on Feb. 18, the city’s candidate filing deadline, Puente filed to run for election for his District 2 position nearly two months after entering the race for the state House seat.
At the time, he said he believed he was eligible to run in both races because the elections were on different ballots and neither fell on the same election day.
“When I read the statute, it wasn’t very clear so I wanted to make sure it was based on a legal (opinion),” he said Thursday.
Cleared to run for District 2
On Wednesday, Sossi released his legal opinion, finding Puente could run in each election.
“I had initially thought that Commissioner Puente could not be a candidate for the city position,” Sossi wrote to Gonzalez in the memorandum. “However, after reviewing the law on the issue and speaking with the Cameron County Elections Administrator (Remi Garza), I have determined that the commissioner may file for a place on the ballot.”
In his opinion, Sossi cited Texas Election Code 141.033, which prohibits candidates from running for two offices which “are to be voted on at one or more elections held the same day,” noting the state and city elections are being held on different days.
“There is nothing in the law that currently bars Commissioner Frank Puente from running for Texas state representative in November and Harlingen city commissioner in (the) May 2022 election if he chooses to do so because these two elections fall on different days,” Sossi wrote.
Puente can’t hold both offices
As part of his opinion, Sossi wrote Puente couldn’t hold the two offices if he won both elections.
If Puente wins the state’s March 1 primary election and the May 7 city election, his state victory would automatically trigger his resignation from his commission seat, Sossi wrote.
“Commissioner Puente may clearly not hold both the office of Texas state representative and Harlingen city commissioner at the same time, even though neither is an office of emolument because of the doctrine of conflicting loyalties,” he wrote.
“Conflicting loyalties prevent a person from simultaneously holding two public offices when the interests of the two public entities may conflict and when voting on behalf of one public entity would possibly compromise the interests of the other public entity. In other words, the official would have to choose between the conflicting interests of the two entities and, thus, would have conflicting loyalties. Where the governing bodies of two entities are authorized to contract with each other, one person cannot serve as the governing body of both entities because of the conflicting loyalties doctrine.”
Puente’s automatically resigned his commission seat
Based on the law, Puente automatically resigned his commission seat when he filed to run for the state Legislature, Sossi wrote.
“Commissioner Puente currently serves as a Harlingen City Commissioner and is holding over in office until the end of his term of office (in) May 2022,” Sossi wrote. “This is because Commissioner Puente’s announcement for Texas State Representative operated as an automatic resignation from his Harlingen City Commission” seat.
Compensated officials ineligible to run for Legislature
Based on the law, public officials who are compensated are ineligible to run for the state Legislature, Sossi wrote.
In his opinion, Sossi wrote the city doesn’t “compensate” Puente for his service on the commission.
However, the city pays commissioners about $92 a month, which Puente said serves to reimburse mileage costs.
“No judge of any court, secretary of state, attorney general, clerk of any court of record, or any person holding a lucrative office under the United States, or this state, or any foreign government shall during the term for which he is elected or appointed, be eligible to (run for) the Legislature,” Sossi wrote, quoting the law.
“Courts interpreting this provision have held that Article III, section 19, of the Texas Constitution will not disqualify a local official holding a lucrative office from running for the Texas Legislature even though the local office term overlaps with the legislative term,” Sossi wrote. “Nonetheless, the local official must resign from his office before filing for the legislature.”
Sossi added, “Failure to resign from the local position prior to filing for the legislature will result in the official being ineligible to run for the legislative seat. In a recent case, the Texas Supreme Court held that a school board officer who received no compensation except reimbursement for expenses such as meals did not hold a lucrative office.”
