Untitled Texas Attorney General Opinion ( 1982 )


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  •                                           The Attorney                General of Texas
    MARK WHITE
    Attorney General                                          September    10,    1982
    Mr. David Dean                              Opinion No.   MW-513
    Supreme      Court Building
    Secretary of State
    P. 0. Box 12546
    Austin.    TX. 76711. 2546
    P. 0. Box 12697                             Re:   Construction of article
    512/475-2501                             Austin, Texas   78711                       III, section 19 of the Texas
    Telex    9101674-1367                                                                Constitution
    Telecopier     512/475.0266
    Dear Mr. Dean:
    1607 Main St., Suite 1400
    Dallas,   TX. 75201.4709                      You inquire about the effect of the recent United States Supreme
    2141742-6944                             Court decision in Clements v. Fashing, on certain Texas officeholders
    and candidates for elective office.      The Fashing decision upheld
    article III, section 19 and article XVI, section 65 against challenges
    4624 Alberta      Ave., Suite      160
    El Paso, TX.      79905.2793
    to their constitutionality raised by public officials and voters of El
    91515333464                              Paso county.    Article III, section 19 of the Texas Constitution
    provides as follows:
    1220 Dallas Ave.. Suite           202
    No judge of any court, Secretary of State,
    HOUS,O~, TX. 77002-6966
    7131650-0666                                       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
    606 Broadway,         Suite 312                    government shall during the term for which he is
    Lubbock,  TX.       79401.3479
    elected   or   appointed,  be   eligible   to  the
    6061747-5236
    Legislature.
    4309 N. Tenth.    Suite B                A justice of the peace of El Paso County attacked this provision as
    McAllen,    TX. 78501.1685               violating the equal protection and due process rights guaranteed by
    5121662-4547
    the first, fifth, and fourteenth amendments of the United States
    constitution.
    200 Main Plaza, Suite 400
    San Antonio.  TX. 76205.2797                  Article XVI, section 65 provides that certain district, county,
    5121225-4191                             and precinct officers will automatically vacate their offices if they
    become candidates for a second office when the unexpired term of the
    An Equal       Opportunityl              first office exceeds one year.   This provision was challenged on the
    Affirmative      Action     Employer     same constitutional grounds as article III, section 19.
    The federal district court ruled in favor of plaintiffs, and
    enjoined the El Paso County officials and the governor, secretary of
    state, and attorney general from enforcing the challenged provisions
    of article III, section 19 and article XVI, section 65.    Fashing v.
    Moore, 
    489 F. Supp. 471
    (W.D. Tex. 1980). The district court ruling
    was affirmed by the Fifth Circuit.   Fashing 'I. Moore, 
    631 F.2d 731
    P.    1855
    Mr. David Dean - Page 2   (mt-513)
    (5th Cir. 1980) (per curiam).    The        United States Supreme Court
    reversed the Fifth Circuit. Clements        v. Fashing, 
    50 U.S.L.W. 4869
    (1982).
    Following the district court ruling in Fashing, a number of
    officeholders continued to perform the duties of their first office
    while running for a second in contravention of the terms of article
    XVI, section 65. You inquire about the effect of the Supreme Court
    decision in Fashing on these persons.   This question has been raised
    in lawsuits filed by two of the officers in question.        Spears v.
    Bustamente, No. 82-Cl-10202 (Dist. of Bexar County, 131st Judicial
    Dist. of Texas, filed July 6, 1982); Heard v. Lindsay, No. 82-33895
    (Dist. of Harris County, 189th Judicial Dist. of Texas, filed July 9,
    1982).   It is the longstanding policy of this office not to issue
    opinions on matters that are in litigation.    Therefore, we will not
    answer your question concerning the effect of the Supreme Court ruling
    on officeholders subject to article XVI, section 65.
    You also ask whether     officeholders  covered by article III,
    section 19 of the Texas Constitution are eligible to run for the Texas
    Legislature where the term of the current office does not overlap the
    term of the legislative office sought.       Article III. section 19
    provides as follows:
    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  the
    Legislature.
    The Texas Supreme Court has held that this provision          bars an
    officeholder   from  seeking  election  to the    legislature  if the
    legislative term overlaps with the term of the current office. Lee v.
    Daniels, 
    377 S.W.2d 618
    (Tex. 1964); Willis v. Potts, 
    377 S.W.2d 622
    (Tex. 1964); Kirk v. Gordon, 
    376 S.W.2d 560
    (Tex. 1964).
    The United States Supreme Court opinion in Clements v. Fashing,
    relied upon the construction of article III, section 19 as announced
    by the Texas Supreme Court. The plurality opinion stated as follows:
    Section 19 renders an officeholder ineligible for
    the Texas legislature    if his current term of
    office will not expire until after the legislative
    term to which he aspires begins.   Lee v. Daniels,
    
    377 S.W.2d 618
    , 619 (Tex. 1964)....       In other
    words, §19 requires an officeholder to complete
    P.     1856
    .   -
    Mr. David Dean - Page 3   (MW-513)
    his current term of office before       he   may   be
    eligible to serve in the Legislature.
    An individual who is ineligible to hold an office may not become a
    candidate for it.   Elec. Code art. 1.05, 51. Thus, an officeholder
    named by article III, section 19 may not run for a legislative term
    that would overlap the term he is currently serving.
    It is a reasonable inference from the Texas Supreme Court cases
    construing article III, section 19, that this provision does not
    prohibit an officer from running for the Texas Legislature when the
    term of his current office expires before the term of the legislative
    office begins.  The Texas Supreme Court stated in Kirk v. Gordon that:
    It is the fact that the term of office of
    district   attorney   to  which  he  "as   elected
    conflicts with the term of office of members of
    the House of Representatives which 
    controls. 376 S.W.2d at 562
    .   This statement was quoted in Lee v. 
    Daniels, 377 S.W.2d at 619
    .   A court of civil appeals, the secretary of state's
    office and this office have interpreted article III, section 19 as not
    prohibiting an officeholder from seeking legislative office if his
    current term expires before the legislative term begins. -See Chapa v.
    Whittle, 
    536 S.W.2d 681
    (Tex. Civ. App. - Corpus Christi 1976, no
    writ); Attorney General Opinion H-278 (1974); Election Law Opinion
    DAD-34 (1982).
    In adjudicating the validity under the federal Constitution of a
    provision of state law, the United States Supreme Court looks to the
    decisions of that state's courts to determine the meaning of the
    provision.   -See Clay v. Sun Insurance Office, Ltd., 
    363 U.S. 207
            (1960); Leitner Minerals, Inc. v. United States, 
    352 U.S. 220
    (1957).
    In   Clement6    v.   Fashing,  the    Supreme  Court   addressed   the
    constitutionality of article III, section 19 as construed by the Texas
    courts. There are statements in the plurality opinion of Clement6 v.
    Fashing which could be read to suggest that section 19 bars an
    officeholder from even becoming a candidate for the legislature until
    his current term is completed.   However, these statements must be read
    in the context of the Court's initial discussion of article III,
    section 19 and of the particular facts before it. The Court does not
    purport to construe article III, section 19 in a way that is
    inconsistent with the construction adopted by the Texas Supreme Court.
    Article III, section 19 does not render an officeholder ineligible to
    run for the Texas Legislature when the term of his current office does
    not overlap the term of the legislative office sought.
    P.    1857
    Mr. David Dean - Page 4    (&fw-513)
    SUMMARY
    Article    III,  section   19    of    the    Texas
    Constitution   does not   render   an officeholder
    subject to its provisions ineligible to run for
    the Texas Legislature when the term of his current
    office   does   not  overlap   the    term    of   the
    legislative office he is seeking.
    MARK      WHITE
    Attorney General of Texas
    JOHN W. FAINTER, JR.
    First Assistant Attorney General
    RICHARD E. GRAY III
    Executive Assistant Attorney General
    Prepared by Susan L. Garrison
    Assistant Attorney General
    APPROVED:
    OPINION COMMITTEE
    Susan L. Garrison, Chairman
    Jon Bible
    Rick Gilpin
    Patricia Hinojosa
    Jim Moellinger
    Bruce Youngblood
    P-   1858