MARK WHITE 

Attorney General 

Supreme Court Building 

P. 0. Box 12546 

Austin. TX. 76711. 2546 

512/475-2501 

Telex 9101674-1367 

Telecopier 512/475.0266 

1607 Main St., Suite 1400 

Dallas, TX. 75201.4709 

2141742-6944 

4624 Alberta Ave., Suite 160 

El Paso, TX. 79905.2793 

91515333464 

1220 Dallas Ave.. Suite 202 

HOUS,O~, TX. 77002-6966 

7131650-0666 

606 Broadway, Suite 312 

Lubbock, TX. 79401.3479 

6061747-5236 

4309 N. Tenth. Suite B 

McAllen, TX. 78501.1685 

5121662-4547 

200 Main Plaza, Suite 400 

San Antonio. TX. 76205.2797 

5121225-4191 

An Equal Opportunityl 

Affirmative Action Employer 

The Attorney General of Texas 

September 10, 1982 

Mr. David Dean 

Secretary of State 

P. 0. Box 12697 

Austin, Texas 78711 

Dear Mr. 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 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 

to their constitutionality raised by public officials and voters of El 

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 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. 

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, 

and precinct officers will automatically vacate their offices if they 

become candidates for a second office when the unexpired term of the 

first office exceeds one year. This provision was challenged on the 

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. 

(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. 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