Commissioners court to take up Britton's 'holdover' county attorney status

Steve Nash
Brownwood Bulletin
Brown County Republican Party
Paul Lilly
Shane Britton
Molly Kay Smith

Shane Britton will know a little more about his political future after Monday's meeting of the Brown County Commissioners Court, where two items are on the agenda pertaining to Britton:

* Consideration and possible approval of action to declare a special election for the county attorney position.

* Consideration and possible action to appoint someone to the county attorney position until after the March primary. Commissioners meet at 9 a.m.

Britton, 55, has been the Brown County attorney since 2001. Last week, Britton announced he is a candidate for Brown County judge in the Republican Party primary elections in March. Britton's announcement created a three-way race for Brown County judge. In addition to Britton, candidates are:

* Incumbent Paul Lilly, 52, who has been Brown County judge since 2019.

* Molly Smith, 44, who ranches and farms.

Britton's announcement of his Brown County judge candidacy triggered what's known as "Resign to Run" under the Texas constitution. And that means it's an automatic resignation for a county attorney and other elected officials who announce their candidacies for a different office.

But the Texas Constitution also provides that "an elected public official continues to perform the duties of office (or 'hold over') until his or her successor takes office,"  the Texas Association of Counties (TAC) states in a document called "Short Answers to Common Questions. The purpose of the holdover provision is to "maintain the functioning of government," TAC said.

Britton said earlier via text that his announcement "serves as automatic resignation but I remain in office until my successor takes office. Commissioners will call a special election for my job."

The way Lilly sees it, the commissioners court should appoint someone who's qualified for the job as county attorney in place of Britton. Lilly said he'll ask commissioners to appoint Terri Moore, who works in Britton's office as assistant county attorney, to the office during Monday's meeting. Lilly also said he knows of a couple of other attorneys who are willing to be appointed. He declined to name them.

Lilly said he spoke with Caroline Griggs, government relations manager in the Texas Attorney General's Office, for clarification of Britton's status under "Resign to Run."

"She said 'you always try and follow the intent of the law, and the intent of the Resign to Run was that the elected official resigns immediately, but they do hold that office over because they're elected until someone new is appointed,'" Lilly said. 

Lilly told Griggs that he had heard from Precinct 1 Commissioner Gary Worley that commissioners were probably going to leave Britton in office as a holdover.

"She said 'it's legal but it's not what they intended when they passed the law,'" Lilly said.

He said Griggs referred him to Keith Ingram, director of elections in the Texas Secretary of State's office. "So I talked to Keith Ingram," Lilly said. "I told him what was brewing here and he said 'no, hold the phone. He said you can only hold a candidate over when there is no one else qualified to be appointed for the job.'"

Lilly said Ingram told him, "when our legislature created that statue, they always assumed candidates would do the honorable and right thing. In his words, they never dreamed that somebody would try and stay in office absent there not being anybody else that could do the job. 

"He said they've never encountered a commissioners court that didn't accept the resignation and appoint someone new as the statute says they're supposed to do. Is it technically illegal to leave him in there? No, it's not. But it's sure, in my opinion, the unethical and dishonorable thing to do. It's very clear what the intent of the resign to run law is. It's very clear so that you can't use your current office as a springboard to get to the next.

"There's a thing called the smell test. You could do it but if it doesn't smell good, the public's going to see that. If it doesn't pass the smell test, then that means the public clearly sees that while technically it may be legal -- and I'm not implying that they're not going to follow the spirit of the law. All I'm saying is, based on a conversation with commissioner Worley, it was my impression that they have the intention to leave Mr. Britton in office."

Lilly said Ingram toll him he's 'never encountered a commissioners court that would do something like that and he's praying that we're not the first, and I'm praying we're not the first either. If it were anybody else, we wouldn't be sitting here having this conversation, in my opinion."

Worley countered that commissioners "do not have to appoint someone immediately. It never mentions any timeline. An elected official who resigns, under the Texas constitution, remains in office as a holdover until his successor qualifies for office. The commissioners court is the only one that can make the appointment, not a county judge."

"I'm for having Shane serve until after the March primary just to keep the continuity in the office, to keep things progressing. I think Shane needs to serve as a holdover."

Worley proposed a timeline for events following Britton's announcement of his candidacy:

* Monday, Nov. 29 -- the commissioners court calls a special election for county attorney to be held at the time of the general election in November 2022.

* After Nov. 29 -- candidates for county attorney will file for a place on the March primary ballot.

* Between Nov. 29 and the March 2022 primary -- Britton will continue as holdover county attorney.

* If no one runs in the Democratic Primary -- once the primary votes are canvassed, the winner of the Publican Primary will be appointed as county attorney effective April 1, 2022.

Precinct 2 Commissioner Joel Kelton said, "As far as what to do with Shane, there are several options. You can appoint someone to fill that position. You can take no action and remains in that position and draws his salary."

Kelton said he was inclined to vote for Britton to remain as a holdover county attorney until the primary elections.

"They're already behind up there already," Kelton said of the county attorney's office. "If you pull him out, you're going to be even more shorthanded up there. My recommendation, from my understanding at the moment -- and I'm still learning about this -- is probably to let him stay in that position. It looks to me like the most commonsense thing to do is don't vacate that spot because they need that help."