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# AITORNEYGENERAL OPTE~AS AUSTIN 1% TEXAS WVILL WILSON August 4, 1960 *TTORNE~GENERAL Honorable H. J. Blanchard. Chairman Opinion No. WW-898 General Investigating Committee House of Representatives Re: Great Plains Life Building Lubbock, Texas Qualifications of Members of the House of Representatives to serve on interim committees. Dear Mr. Blanchard: As Chairman of the House General Investigating Committee created by H.S.R. 202, 56th Legislature, Regular Session, you have requested an opinion as to the status of three members of the Committee inview of the provisions ofArticle 5429e, Vernon’s Civil Statutes, which reads as follows:

“The membership of any duly appointed Senator or Representative on the Legislative Budget Board or on theLegislative Council, or on any other interim Committee, shall, on the following contingencies. terminate, and the vacancy created thereby shall be immediately filled by appointment for the unexpired term inthe same manner as other appointments to the Legislative Budget Board and the Legislative Council are made:

“(a) Resignation of such membership:

“(b) Cessation ofmembership inthe Legislature for death or any reason:

“(c) Failure of such member to secure nomination or election to membership inthe Legislature for the next succeeding term.”
**Your** opinion request reads inpart as follows:

“I am advised that on September 9, 1954. the Honorable JohnBen Shepperd, thenAttorney General of Texas, in Opinion No. S-139, rendered an opinion to the effect thatmembers of the House of RepresentativesHon. H. J. Blanchard, page 2 (WW-898)

appointed on interim committees were disqualified from service on said committees after the official canvass reflected thatthey were not re-elected.

“This request is for the purpose of clarification of several questions, to-wit:

“(1) Is amember who is nominated in the primary assured of election, or must he wait until theNovember General Election?

“(2) Onwhatdate does the member become disqualified?

“(3) Ifa special session of the Legislature is called, are members whohave not qualified for reelection disqualified from service during the special session?

“(4) Ifthe answer toNo. 3 is No, is themember so disqualified able to serve on committees during the called session?

“(5) If a Democratic nominee becomes disqualified in the event of defeat by an Independent or Republican candidate, does such disqualification take place at the official canvass following theNovember elections ?

“(6) What would preclude a member from **running** andbeing elected at theNovember General Election as an Independent or Republican?

“I would appreciate your prompt attention to this matter, inasmuch as theHon. Joe Burkett, Carl Conley and Idid not seek re-election. Since theoffi- ,cial canvass of the Democratic Party was made May 17, 1960, we must determine our **course** of action.

“Mr. Carr advises that if the three of uaare disqualified he desires to appoint other members to replace us.” We have reviewed Opinion No. S-139 andwe agree with its holdings. The emergency **clause** of thebill by which Article 5429e was enacted sheds light on the purpose and intent of the **statute. It**  recitedHon. H. J. Blanchard. page 3 (WW-898)

that “the importance of requiring thatMembers of the Legislative Budget Board and the Legislative Council, or any other interim Committee, be Members of tha Legislature during the term of their appointment, and also for the succeeding term of the Legislature” created the emergency for the enactment. The holdings in Opinion S-139 are in accord with this expressed purpose. Since you probably have not seen the full text of the opinion, we are enclosing a copy herewith. **A** reading of the opinion will answer some of your questions without further clarification. The holdings inOpinion No. S-139 which are pertinent toyour request are as follows: 1. Subdivision (c) ofArticle 54290 does not apply to ‘“ex-officio” members of interim committees. 2. Unless terminated earlier by resignation from the committee, cessation ofmembership in the Legislature. or failure to **secure** nomination tomembership in the Legislature for the next succeeding term, an appointive membership on an interim committee is terminated if the mamber is not again elected to either the House or the Senate at the general election for the year inwhich his term of office as legislator is ending. The date of termination isthe date onwhich the results of the election are officially canvassed; 3. Where a member has sought renomination or nomination to the othar branch of the Legislature ina party primary andfails to obtain the nomination, his membership on interim committees is terminated on the date of the official canvass of the primary election returns showing thathe has been defeated. 4. Where **a** member’s election to the Legislature was as thenominee of a political party which is selecting its nominees for the succeeding term by primary elections, andhe didnot seek nomination by that party for a place in the Legislature for the succeeding term, his membership on interim committees is terminated on the date of the official canvass of the results of the first primary, unless hehas made it knownthathe will seek re-election in some other manner thanas thenominee of that party. (The other methods for seeking re-election which would preserve his status on interim committees pending outcome of his attempt to sacure nomination are (1) as the nominee of some other political party. and (2) as thanominee of independent or nonpartisan voters in accordance with Articles 13.50-~13.52 of the Election Code.) 5: Membership on the interim committees is terminated immediately uponthe canvass of the election returns anddoes not continue until a **successor** is appointed. **A** successor appointed from among tha other members of the Legislature would not be qualified to serve ifheHon. H. J. Blanchard, page 4 (WW-898)

likewise had failed to **secure** nomination or election.
**You and**  **Messrs. Burkett**  and Conley were elected to theHouse of Representatives as nominees of the Democratic Party. You have stated thatneither of you sought re-election. Yore questions ail1 be answered with special reference to the status of these three members of theHouse General Investigating Committee. Inanswer to **your** first question, electfon takes place in the general election andnot inparty primaries, nomatter how certain election may appear tobe by virtue of nomination. However, termination of membership on interim committees is based onfailure to secure nomination or election. If a member of the Legislature~lnated m the primary for a succeeding term, he continues tobe eligible to serve on interim committees until the official **results** of thegeneral election show thathe has failed to obtain election. Your second question concerning thedate onwhich themember becomes disqualified to serve on interim committees is answered by the holdings inOpinion S-139, summarized above. Inyour third question you ask whether members whohave not qualified for re-election are disquallfled from service during a special session of the Legislature. Inthe light of your **fourth** question, we take Question No. 3 tomean whether members of the Legislature who have become disqualified from serving on interim committees because of failure to secure nomination or election to the succeeding term are also disqualified from serving in sessions of the Legislature. Section 4 of Article IIIofthe Constitution of Texas provides:

“‘The members of the House of Representatives shall be chosen by the qualified electors, and their term of office shall be twoyears from the day of their election.*’ This provision in the Constitution fixes the length and commencement of the terms ofmembers of theHouse of Representatives, and the right of amember to serve in sessions of the Legislature during his term of office could notbe impaired by statute. Subdivision (c) ofArticle 5429e does not purport to disqualify members of the Legislature from serving inthe legislative sessions, but only from serving on the Legislative Budget Board, the Legislative Council, and other interim committees. Although disqualified from serving on interim committees, a member continues tohold office as a legislator andmay serve in sessions of the Legislature during his term of office and until his successor qualifies. **Art.** XVI, Sec. 17, Texas Constitution.Hon. H. J. Blanchard, page 5 (WW-898)

Question No. 4 is whether a member who is disqualified from serving on interim committees by failure to **secure** nomination or election to the succeeding term is able to serve on committees **during** a caDed session. **Article** 5429e has no application to service on regular standing committees of the Legislature. We infer thatthis question has reference to serving on special committees which are authorized to act both during sessions of theLegislature andduring the intervals between sessions, and **your** inquiry is whether such a committee would cease tobe an “interim”’ committee during a called session and therefore removed from the operation ofArticle 5429e during the called session. H.S.R. No. 202 provides thatthe **House** General Investigating Ccenmittee “‘shall have full freedom todetermine the times andplaces it shall meet, both during the **Regular** Session, any called session, andduring the interim between the adjournment of the Regular Session of the 56th Legislature and the convening of the 57th Legislature.” In **our** opinion, a committee which is authorined tofunction during the interim between regular sessions does not cease tobe an interim committee within the provisions ofArticle 5429e during the periods of intervening special sessions, and the disqualifications inArticle 5429e apply to service during special sessions. Inanswer to Question No. 5, if a nominee is defeated in the general election, his disqualification to serve on interim committees occurs when the official canvass of the general election is made. InQue,stion No, 6you ask whatwould preclude **a** member from running andbeing elected at the November % eneral election as an Independent or Republican. InOpinion No. -139 it was **pointed** out that a person whohas been elected to the Legislature as a nominee of a political party is notobliged to seek re-election as that party’s noxiinee. The opinion held, however, thatwithin themeaning ofArticle 5429e a person whowas elected as a party nominee andwhohas not again sought thatparty’s nomination has failed to **secure** nomination when it is officially shown thathe will not~betheparty nominee, unless he has made itknown thathewill seek re-election in some other manner. **As** applied to the present fact situation, the date of the canvass of the results of thefirst Democratfc primary on May 17, 1960, was the date onwhich it was officially shown thata member not seeking renomination of the Democratic Party would notbe the pasty nominee. Ifon thatdate themember hadmade it knownthathe would seek election as the nominee of some other party or as an independent candidate, hie membership on interim committees would continue for the time in._. .

Hon. H. J. Blanchard, page 6 (WW-898)

which nomination by the other method could take place. but would terminate upon his failure to **secure** nominatioa in that manner. The date for the Republican Party tomake its noniinations for district offices has already passed, andmembership on interim committees is not preserved through this method ofnomination unless themember has been named as theRepublican nominee. The deadline for fil&ng aa.spplication as an independent candidate occurred onJuly 4, 1960 (30 days after the second primary election day). Ifby that date a member seeking tobecome an independent candidate had notfiled an application meeting the requirements ofArticles 13.50-13.52 of the Election Code, his membership on interim committees was terminated. We have said 

### (that membership on interim committees terminated on the date of canvass of the fipst primary election returns if the member was theretofore elected as thenominee of the Democratic Party anddid not seek the nomination of that party inthfs year’s primary, unless on thatdate he had made itknown thathe would seek election by some other method 0%nomination. Your request suggests the possibility thatthe member might subsequently decide tobecome aa independent candidate. This raises the question ofwhether, inthe event he did subsequently become abona fide independent candidate. he would be eligible for re-appointient to the interim committee onwhich he formerly served. In our opiaion, his candidacy would remove the disqualification based on %ailureto **secure** nomination and he would become eligible for re-appointment, or %orappointment to other interim committees. SUMMARY

Under Article 5429e 0%Vernon’s Civil StatuUes, membership on interim legislative committees o%State Representatives whowere thereto%ore elected as nominees of the Democratic Party andwho did not seek nomination 0%thatparty for the next succeeding term is terminated on thedate of the canvass of the returns 0% the first Democratic primary unless themember has made it knownthat he will seek election to the House or Senate as the nominee of some other party OPas an independeat candidate. Ifon thatdate themember has announced that he will seek nomination of some other party or as an independent candidate, his membership on interim committees continues for the period inwhich nominatPonby tbe other method could take place, but terminates upon his failure to **secure** nomination in thatmanner. If subsequent to termmation of membership by fahre to seekHon. **H.** J. Blanchard, page 7 (WW-898)

nomination inthe primary election the legislator becomes a candidate by some other method of nomination, his disqualification to serve on interim committees is removed andhe becomes eligible for appointment to such committees. Ifa nominee is defeated in the general election, his disqualification to serve on interim committees occurs when the official canvass of the general election is made. A disqualified member may not serve on interim committees during special sessions of the Legislature. Yoaarsvery truly, WILL WILSON Attorney General of Texas

BHT:lmc APPROVED: OPINION COMMITTEE: Gordon C. Cass, Chairman HoughtonBrownlee 3. C. Davis, Jr. Morgan Nesbitt J. Arthur Sandlin REVIEWEDFORTHEATTORI’IEYGENERAL BY: Leonard Passmore