MARKWHITE Attorney General

Supreme Court Building P.0. Box 12546 Austin. TX. 76711. 2546 512/475-2501 Telex 9101674-1367 Telecopier 512/475.0266

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# TheAttorney General ofTexas

September 10, 1982

Mr.David Dean Secretary of State P. 0.Box 12697 Austin, Texas 78711

DearMr. Dean: Opinion No. MW-513
Re: Construction of article III, section 19 of the Texas Constitution

You inquire about the effect of the recent United States Supreme Court decision inClements v. Fashing, on certain Texas officeholders and candidates for elective office. The Fashing decision upheld article III, section 19and article XVI, section 65against challenges to their constitutionality raisedbypublic officials andvoters ofEl Paso county. Article III, section 19 of the Texas Constitution provides as follows:

No judge of any court, Secretary of State, Attorney General, clerk of anycourt 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.
A justice of the peace of El Paso County attacked this provision as violating the equal protection and due process rights guaranteed by the first, fifth, and fourteenth amendments of the United States constitution. Article XVI, section 65 provides that certain district, county, andprecinct officers will automatically vacate their offices if they become candidates for a second office when theunexpired term of the first office exceeds one year. This provision was challenged on the same constitutional grounds asarticle 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

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(5th Cir. 1980) (per curiam). The United States Supreme Court reversed the Fifth Circuit. (1982). Clements v. Fashing, 50 U.S.L.W. 4869
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.ofHarris 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 answeryour question concerning the effect of the Supreme Court ruling onofficeholders subject toarticle XVI, section 65.
You also ask whether officeholders covered by article III, section 19of theTexas Constitution areeligible torun for theTexas 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 ofany court ofrecord, or any person holding a lucrative office under the United States, or this State, or any foreign government shall during the term forwhich 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 termoverlapswith theterm of the current office. Leev. Daniels, 377 S.W.2d 618 (Tex. 1964); Willis v. Potts, 377 S.W.2d 622 (Tex. 1964);Kirkv.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 theTexas Supreme Court. Theplurality opinion stated as follows:

Section 19 renders an officeholder ineligible for the Texas legislature if his current term of officewill not expire until after the legislative term towhich he aspires begins. Leev. Daniels, 377 S.W.2d 618, 619 (Tex. 1964).... In other words, §19 requires an officeholder to complete

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Mr.David Dean -Page 3 (MW-513)

his current term of office before he may be eligible toserve intheLegislature.
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 19may not run for a legislative term thatwould overlap the termhe iscurrently 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 ofhis current office expires before the term of the legislative officebegins. TheTexas Supreme Court stated inKirkv.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 theHouse ofRepresentatives which controls. 376 S.W.2d at 562. This statement was quoted inLeev. Daniels, 377 S.W.2d at 619. A court of civil appeals, the secretary of state's office and thisoffice have interpreted article III, section 19asnot prohibiting an officeholder from seeking legislative office if his current termexpires before thelegislative termbegins. SeeChapav. - 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 thevalidity 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, 352U.S. 220 (1957). In Clement6 v. Fashing, the Supreme Court addressed the constitutionality ofarticle III, section 19asconstrued by theTexas courts. There are statements in theplurality opinion of Clement6 v. Fashing which could be read to suggest that section 19 bars an officeholder from evenbecoming a candidate for the legislature until his current term iscompleted. However, these statements mustbe read in the context of the Court's initial discussion of article III, section 19and of theparticular factsbefore it. The Court doesnot purport to construe article III, section 19 in a way that is inconsistent with the construction adoptedby theTexas Supreme Court. Article III, section 19does not render an officeholder ineligible to run for theTexas Legislature when the termofhis current office does not overlap the termof the legislative office sought.

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SUMMARY Article III, section 19 of the Texas Constitution does not render an officeholder subject to its provisions ineligible to run for theTexas Legislature when the termofhis current office does not overlap the term of the legislative office he is seeking.

MARK WHITE Attorney General ofTexas JOHNW. FAINTER, JR. FirstAssistant Attorney General
RICHARD E.GRAY III Executive Assistant Attorney General Prepared by SusanL.Garrison Assistant Attorney General
APPROVED: OPINION COMMITTEE
SusanL.Garrison, Chairman Jon Bible Rick Gilpin Patricia Hinojosa JimMoellinger BruceYoungblood

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