* I 

The Attorney General of Texas 

December 31, 1982 

MARK WHITE 

Attorney General 

Supreme Court Building 

P. 0. aox 12546 

Austin. TX. 76711. 2546 

512/475-2501 

Telex 910/674.1367 

Telecopier 5121475-0266 

1607 Main St., Suite 1400 

Dallas, TX. 75201-4709 

2141742-8944 

4824 Alberta Ave., Suite ia0 

El Paso, TX. 79905.2793 

9151533-3464 

1220 Dallas Ave., Suite 202 

Houston, TX. 770026966 

71316500566 

606 Broadway. Suite 312 

Lubbock. TX. 79401.3479 

6061747.5236 

4309 N. Tenth. Suite B 

McAlle”, TX. 76501-1685 

5121682-4547 

200 Main Plaza, Suite 400 

San Antonio, TX. 78205-2797 

512/225-4191 

An Equal Opportunity/ 

Affirmative Action Employer 

Honorable Gibson D. (Gib) Lewis 

Chairman 

Comittee on Inter-Governmental Affairs 

Texas House of Representatives 

P. 0. Box 2910 

Austin, Texas 78769 

Dear Representative Lewis: 

opinion No.Mw-572 

Re: Constr"ction of article 

988, V.T.C.S., which limits 

employment of city council 

members 

You have asked four questions concerning the first sentence of 

article 988, V.T.C.S. Prior to amendment in 1981, Acts 1981, 

Sixty-seventh Legislature, chapter 527, section 2, at 2230, this 

provision generally prohibited members of city councils from holding 

"any other employment or office" in their respective cities. It now 

reads: 

No member of the city council shall hold any other 

employment or office under s city government 

while that member is a member of x city council 

Or appointed board or conrmission thereunder, 

unless herein otherwise provided. (Emphasis 

added). 

Your questions are essentially a* follows: 

1. Is this amended provision constitutional? 

2. If it is: 

(a) Does it apply to both general law and home 

rule municipalities? 

(b) If it applies to a particular municipality 

and to a councilperson serving on its effective 

date, does the position held by such 

councilperson become vacant, as a matter of 

law, upon the effective date? If not, what is 

the effect of such statute upon such position 

and the service of the person holding it? 

p. 2107 
Honorable Gibson D. (Gib) Lewis - Page 2 (Mw-572) 

(c) Depending upon the answer to (b), are 

actions taken and/or votes cast by such 

councilperson after the effective date of the 

provision valid, void or voidable? 

You have not cited the constitutional provision that you think 

might be offended by the prohibition in question. The equal 

protection clauses of the federal and state constitutions, United 

States Constitution amendment 14; Texas Constitution article I, 

section 3, appear to be the most likely candidates, however, and we 

will consider the application of these provisions. 

For years courts dealt with equal protection challenges to state 

legislation by utiliaing a two-tiered analytical model. Under this 

model, if a challenged statute burdens an inherently "suspect" class 

of persons or impinges upon a "fundamental" constitutional right, it 

will be struck down unless the government can demonstrate that the law 

is justified by some compelling need. If, on the other hand, no 

"suspect" class or "fundamental" right is involved, the statute will 

be upheld unless the contestant can show that the legislative 

classification bears no rational relationship to a legitimate state 

objective. See, e.g., Vance v. Bradley, 440 U.S. 93 (1979); San 

Antonio Independent School District V. Rodriguez, 411 U.S. 1 (1973); 

Milligan V. State, 554 S.W.2d 192 (Tex. Grim. App. 1977). 

Although the United States Supreme Court may at times apply the 

two-tiered model, see Clement6 V. Fashing. 50 U.S.L.W. 4869 (June 25, 

1982) (plurality -*ion), it also' on occasion utilizes a more 

flexible, three-tiered approach. Under this approach, an intermediate 

test, which asks whether the challenged legislation "further[s] a 

substantial interest of the State," Plyler v. Doe, 50 U.S.L.W. 4650, 

4654 (June 15. 1982). will be utilized in some instances, apparently 

when the court believes that the right or the class of persons 

affected by the challenged statute is, although not "fundamental" or 

"Suspect," nevertheless deserving of special protection. see, e.g., 

Plyler V. Doe, a; Craig V. Boren, 429 U.S. 190 (1976). No 

criteria that would enable one to predict when this intermediate level 

of scrutiny will be employed have yet been articulated. 

The article 988 prohibition clearly does not burden any "suspect" 

class. Nor, in our opinion, does it infringe upon any "fundamental" 

constitutional right. See San Antonio Independent School District V. 

Rodriguez, supra at 33(right must be "explicitly or implicitly 

guaranteed by the Constitution" to be deemed fundamental). Fashing 

establishes that there is no fundamental right to become a candidate 

for public office, and we think it follows that there is no 

fundamental constitutional right to hold office. The Supreme Court 

has also held that there is no fundamental constitutional right to 

p. 2108 
Honorable Gibson D. (Gib) Lewis - Page 3 O@J-572) 

governmental employment per se. Massachusetts Board of Retirement V. 

Murgia, 427 U.S. 307 (1976). 

Since the article 988 prohibition affects neither a suspect class 

nor a fundamental constitutional right, it is not subject to "strict 

scrutiny." Nor do we believe that this is the kind of situation in 

which a court would *eely the intermediate, balancing test 

"substantial state interest" mode of analysis. This leaves the 

rational basis test. Under this test, as articulated in Vance V. 

Bradley, supra, we may find the prohibition unconstitutional only if 

"the varying treatment... is so unrelated to the achievement of any 

combination of legitimate purposes that we can only conclude that the 

legislature's actions were irrational." 440 U.S. at 97. 

We cannot, in this instance, conclude that no rational basis for 

the article 988 prohibition could be established. A policy in favor 

of insuring the officeholder's allegiance to the city which he serves 

mY underlie this provision. We therefore conclude that the 

prohibition does not, on its face, deny city councilpersons the equal 

protection of the laws. 

Your second question is answered by Woolridge V. Folsom, 564 

S.W.Zd 471 (Tex. Civ. App. - Dallas 1978, no writ). There, the court 

held that "article 988, like other articles in chapter 2 of title 28 

of the Texas Revised Civil Statutes, apply only to general-law 

municipalities." Id. at 473. See also O'Quinn, History, Status and 

Function of Cities,Towns and Villages, 2A V.T.C.S. XIII (Vernon 

1963). 

It has been suggested that when the legislature amended article 

988 in 1981, it sought to broaden its scope to include home rule 

cities. We disagree. In our opinion, it simply intended to prohibit 

general law city councilpersons from holding a wider range of 

employments. There is no evidence that it also intended to alter the 

result of the Woolridge case. 

Regarding your third question, we note that article 988 does not 

prescribe any penalty. Compare, e.g., V.T.C.S. arts. 41a-1; 5968. 

Absent clear and convincing evidence, we decline to conclude that the 

legislature intended the prohibition to result in an automatic 

forfeiture of office. But this does not mean that the prohibition is 

unenforceable. Article 5991, V.T.C.S., which applies to general law 

cities, article 5995, V.T.C.S., provides that: 

The mayor and aldermen of any incorporated town or 

city may be removed from office for official 

misconduct.... (Emphasis added). 

p. 2109 
Honorable Gibson D. (Gib) Lewis - Page 4 (m-572) 

The civil offense of "official misconduct" is defined in article 5973, 

V.T.C.S., which is applicable to mayors and aldermen, article 5974, 

V.T.C.S., as: 

any unlawful behavior in relation to the duties of 

his office, wilful in its character, of **y 

officer intrusted in any manner with the 

administration of justice, or the execution of the 

law; and includes any wilful or corrupt failure, 

refusal or neglect of an officer to perform any 

duty enjoined on him by law. 

Compare Penal Code section 39.01 (criminal "official misconduct"). 

See Meyer V. Tunks, 360 S.W.2d 518 (Tex. 1962) ("official misconduct" 

ZZt involve "evil intent" or be "without reasonable grounds to 

believe act lawful"); State vTMcAllister, 365 S.W.Zd 696 (Tex. Civ. 

APP. - San Antonio 1963, no writ). Article 5992, V.T.C.S.. provides 

that: 

When written sworn complaint charging any alderman 

with any act or omission which may be cause for 

his removal shall be presented to the mayor, he 

shall file the same and cause the alderman so 

charged to be served with a copy of such 

complaint, and shall set a day for the trial of 

the case, and notify the alderman so charged and 

the other aldermen of such town or city to appear 

on such day. The mayor and aldermen of such town 

or city, except the aldermen against whom 

complaint is made, shall constitute a court to try 

and determine the case. 

See V.T.C.S. art. 5994 (procedure). - 

A statute does not operate as notice until it becomes effective. 

Norton V. Kleberg County, 231 S.W.2d 716 (Tex. 1950). The new article 

988 prohibition became effective on June 12, 1981. In our opinion, a 

general law city councilperson who wilfully violated this prohibition 

after it became effective could have been removed from office for 

"official misconduct" in accordance with the foregoing statutes, 

either because he engaged in "unlawful behavior in relation to the 

duties of his office" or failed to "perform [a] duty enjoined on him 

by law," viz., to terminate the prohibited employment. V.T.C.S. art. 

5973. A councilperson may now, or hereafter, be removed from office 

for this reason. But we do not believe that a councilperson who was 

in violation of the prohibition on June 12, 1981, automatically 

relinquished his office on that date. 

p. 2110 
Honorable Gibson D. (Gib) Lewis - Page 5 @iW-572) 

Your fourth question was contingent 

opposite conclusion on the third question. 

address it. 

upon our reaching 

We therefore need 

SUMMARY 

The first sentence of article 988, V.T.C.S., 

does not, on its face, deny city councilpersons 

the equal protection of the laws. It applies only 

to general law cities. It does not work in 

automatic forfeiture of office, but it does afford 

a basis for initiating a proceeding for removal 

from office for "official misconduct" under 

article 5991, V.T.C.S., and related statutes. 

MARK WHITE 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

RICHARD E. GRAY III 

Executive Assistant Attorney General 

Prepared by Jon Bible 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Jon Bible 

Rick Gilpin 

Patricia Hinojosa 

Jim Moellinger 

Joe A. Tucker 

the 

not 

p. 2111