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# 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 HonorableGibsonD. (Gib)Lewis Chairman Comittee on Inter-GovernmentalAffairs Texas House of Representatives P. 0. Box 2910 Austin, Texas 78769

Dear RepresentativeLewis: opinionNo.Mw-572

Re: Constr"ctionof 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 prohibitedmembers of city councils from holding "any other employment or office" in their respective cities. It now reads:

No member of the city council shallhold any other

employment or office under s city government while thatmember is a member ofx city council **Or** appointed board or conrmission thereunder, unless herein otherwise provided. (Emphasis added).

Your questionsare essentiallya* follows:
1. Is thisamendedprovision constitutional?
2. If it is: (a) Does it apply toboth general law and home rulemunicipalities? (b) If it applies to a particularmunicipality and to a councilpersonserving 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 thepersonholding it?

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(c) Depending upon the answer to (b), are actions taken and/or votes cast by such councilperson after the effective date of the provisionvalid,void orvoidable?

You have not cited the constitutionalprovision 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 applicationof theseprovisions.

For years courts dealtwith equal protection challenges to state legislation by utiliaing a two-tiered analytical model. Under this model, if a challenged statuteburdens an inherently "suspect" class of persons or impinges upon a "fundamental" constitutionalright, it will be struckdownunless thegovernment can demonstratethat the law is justified by some compelling need. If, on the other hand, no "suspect" class or "fundamental"right is involved, the statutewill be upheld unless the contestant can show that the legislative classificationbears 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); MilliganV. State, 554 S.W.2d 192 (Tex.Grim.App. 1977). Although the United States Supreme Court may at times apply the two-tieredmodel, see Clement6V. Fashing. 50 U.S.L.W. 4869 (June 25, 1982) (plurality-*ion), it also' on occasion utilizes a more flexible, three-tieredapproach. 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 thatwould enable one topredictwhen this intermediatelevel of scrutinywill be employedhave yet been articulated.
The article 988prohibitionclearlydoes not burden any "suspect" class. Nor, in our opinion, does it infringeupon any "fundamental" constitutionalright. See San Antonio IndependentSchool DistrictV. Rodriguez, supra at 33(right must be "explicitly or implicitly guaranteed by the Constitution" to be deemed fundamental). Fashing establishes that there is no fundamentalright 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

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governmental employmentper se. Massachusetts Board of RetirementV. Murgia, 427 U.S. 307 (1976).
Since the article 988prohibitionaffectsneither a suspect class nor a fundamental constitutionalright, 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 unconstitutionalonly if "the varying treatment... is so unrelated to the achievement of any combination of legitimatepurposes thatwe can only conclude that the legislature'sactionswere irrational." 440 U.S. at 97.

We cannot, in this instance, conclude that no rationalbasis for the article 988 prohibition could be established. A policy in favor of insuring the officeholder'sallegiance to the citywhich he serves mY underlie this provision. We therefore conclude that the prohibitiondoes not, on its face, deny city councilpersonsthe equal protectionof 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 thatwhen 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 resultof theWoolridge case. Regardingyour 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 forfeitureof 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:

Themayor and aldermen of any incorporatedtown or city may be removed from office for official misconduct.... (Emphasisadded).

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The civil offense of "officialmisconduct" is defined in article 5973, V.T.C.S., which is applicable to mayors and aldermen, article 5974, V.T.C.S.,as:

any unlawfulbehavior in relation to the duties of his office, wilful in its character, of **y officer intrusted in any manner with the administrationof justice, or the executionof the law; and includes any wilful or corrupt failure, refusal or neglect of an officer to perform any duty enjoinedon him by law. Compare Penal Code section 39.01 (criminal "official misconduct"). See Meyer V. Tunks, 360 S.W.2d 518 (Tex. 1962) ("officialmisconduct" 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 complaintchargingany 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 ismade, shall constitutea court to try and determine the case.
SeeV.T.C.S. art. 5994 (procedure). - A statutedoes not operate as notice until it becomes effective. NortonV. Kleberg County, 231 S.W.2d 716 (Tex. 1950). The new article 988 prohibitionbecame effective on June 12, 1981. In our opinion, a general law city councilpersonwho 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 councilpersonmay now, or hereafter, be removed from office for this reason. But we do not believe that a councilpersonwho was in violation of the prohibition on June 12, 1981, automatically relinquishedhis office on thatdate.

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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 equalprotectionof the laws. It applies only to general law cities. It does not work in automatic forfeitureof 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
JOHNW. FAINTER,JR. FirstAssistantAttorney General
RICHARDE. GRAY III ExecutiveAssistantAttorney General Preparedby Jon Bible AssistantAttorneyGeneral
APPROVED: OPINION COMMITTEE
SusanL. Garrison,Chairman Jon Bible Rick Gilpin PatriciaHinojosa JimMoellinger JoeA. Tucker the not

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