* OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS 

JOHN CORNYN 

February 12,2002 

Mr. Jeff Moseley 

Executive Director 

Opinion No. JC-0464 

Texas Department of Economic Development 

P-0. Box 12728 

Austin, Texas 787 1 l-2728 

Re: Whether article III, section 19 of the Texas 

Constitution requires a Texas Department of 

Economic Development governing board 

member to resign from office in order to run for 

the Texas Legislature (RQ-0457-JC) 

Dear Mr. Moseley: 

You ask about the effect of article III, section 19 of the Texas Constitution on a Texas 

Department of Economic Development (“DED”) governing board member who wishes to run for 

office as a state legislator. Under article III, section 19, holders of “lucrative” state and federal 

offices are ineligible to serve in the Texas Legislature. We conclude that because members of the 

DED governing board do not hold “lucrative” office, article III, section 19 is not relevant to a board 

member’s eligibility to run for legislative of&e or to serve as a legislator. 

You explain that a member of the DED governing board “wishes to seek party nomination 

in the primary to be a candidate for the Texas House of Representatives for a term beginning in 

January 2003 .“l You ask the following questions about article III, section 19 of the Texas 

Constitution: 

1. Is a board member who does not receive compensation, but who 

is entitled to receive reimbursement for actual expenses, eligible 

to serve in the Legislature during the term for which he or she 

was appointed? 

2. Does it make any difference if the board member waives 

reimbursement? 

‘Letter from Mr. JeffMoseley, Executive Director, Texas Department ofEconomic Development, to Honorable 

John Cornyn, Texas Attorney General (Oct. 23,200l) (on file with Opinion Committee) [hereinafter Request Letter]. 
Mr. Jeff Moseley - Page 2 (JC-0464) 

3. If required, when must the board member resign in order to seek 

party nomination for the Texas Legislature? 

4. If the board member does not have to resign to seek party 

nomination in the primary for the Texas Legislature, at what point 

must he or she resign in order to serve in the Legislature? 

Request Letter, supra note 1, at 1. 

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. 

TEX. CONST. art. III, 5 19 (emphasis added). Your first three questions ask about the implications 

of this provision for a board member’s eligibility to run for legislative office. As we explain below, 

article III, section 19 applies only to holders of “lucrative office,” a term that does not include 

members of the DED governing board. Given that a member of the DED governing board does not 

hold a “lucrative office” under article III, section 19, that constitutional limitation does not apply to 

the board member at issue. Article III, section 19 does not require the board member to resign from 

office in order to run for legislative office and will not affect the member’s eligibility to serve should 

he or she be elected to office. 

As the board at issue is responsible for the governance of the DED, a state agency, its 

members are clearly “officers” within the meaning of article III, section 19, see TEX. GOV’T CODE 

ANN. ch. 481, subch. A (Vernon 1998 & Supp. 2002) (authority of DED governing board); Aldine 

Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955) (test for determining whether a 

person is an officer for purposes of constitutional dual-office-holding provisions is whether person 

exercises “‘sovereign mnction[s] of the government . . . largely independent of the control of 

others”‘) (quoting Dunbar v. Brazoria County, 224 S.W.2d 738,740-41 (Tex. Civ. App.-Galveston 

1949, writ refd)), but the board members do not hold lucrative office. The term “lucrative office” 

has been the subject of several judicial opinions. These cases hold that an officer who receives a 

salary, fees, or any other compensation holds a “lucrative office” within this provision. See 

Whitehead v. Julian, 476 S.W.2d 844, 845 (Tex. 1972). An office is lucrative even if the 

officeholder’s compensation is quite insignificant, such as a small per diem. See, e.g., Dawkins v. 

Meyer, 825 S. W.2d 444,446-47 (Tex. 1992) (state agency board member who received $30 per diem 

in addition to expenses held a lucrative office within the meaning of art. III, 8 19); Willis v. Potts, 

377 S.W.2d 622,623 (Tex. 1964) (city council member who received $10 per diem in addition to 

expenses held a lucrative office within the meaning of art. III, 8 19). Reimbursement for expenses 
Mr. Jeff Moseley - Page 3 (JC-0464) 

alone, however, does not render an office lucrative. See Whitehead, 476 S.W.2d at 845 (mayor who 

received only $50 monthly expense allowance and whose expenses exceeded the allowance did not 

hold a lucrative office within the meaning of art. III, 9 19). 

Under section 48 1.0043(c) of the Government Code, a member of the DED governing board 

“may not receive compensation for service on the governing board. A member is entitled to receive 

reimbursement, subject to any applicable limitation on reimbursement provided by the General 

Appropriations Act, for actual and necessary travel expenses incurred in performing services as a 

member of the governing board.” TEX. GOV’T CODE ANN. 4 48 1.0043(c) (Vernon 1998). Because 

these board members do not receive compensation and receive reimbursement only for their actual 

and necessary expenses, a member of the DED governing board does not hold a “lucrative office” 

under article III, section 19 as that term has been construed by the Texas Supreme Court. 

Your final question asks, “[i]f the board member does not have to resign to seek party 

nomination . . . , at what point must he or she resign in order to serve in the Legislature?” Request 

Letter, supra note 1, at 1. Again, article III, section 19 does not apply to a member of the DED 

governing board and has no implications for when a member must resign in order to serve in the 

legislature. We note, however, that should the board member be elected to serve in the legislature, 

he or she will automatically resign her membership on the DED governing board upon qualifying 

for the legislature by operation of the constitutional dual-office-holding prohibition-article XVI, 

section 40. 

Under article XVI, section 40(d), “[n]o member of the Legislature of this State may hold any 

other office or position of profit under this State, or the United States, except as a notary public if 

qualified by law.” TEX. CONST. art. XVI, 9 40(d). We have not located any judicial or attorney 

general opinion addressing whether in this provision the term “office” applies to both paid and 

unpaid offices. We conclude here that the term “office” applies to any office, paid or unpaid. This 

special dual-office-holding prohibition for legislators is in addition to the general prohibition against 

holding more than one paid office in subsection (a) of section 40. See id. 4 40(a) (“ No person shall 

hold or exercise at the same time, more than one civil office of emolument . . . . “). If we were to 

construe “office” to apply only to paid offices, then subsection (d) of section 40 would be redundant 

of subsection (a) and would be rendered meaningless and inoperative. In order to give the term 

“office” meaning, we construe subsection (d) to prohibit a legislator from holding any other state or 

federal office, even if the office is not paid. See Doody v. Ameriquest Mortgage Co., 49 S.W.3d 342, 

344 (Tex. 2001) (courts avoid a construction that renders any constitutional provision meaningless 

or inoperative). Accordingly, the term “office” embraces an unpaid state office such as membership 

on the DED governing board. 

In sum, article XVI, section 40(d) prohibits a person from serving as both member of the 

DED governing board and as a legislator. As qualification for and acceptance of a second office 

would operate as an automatic resignation from the first office, see Pruitt v. Glen Rose Indep. Sch. 
Mr. JeffMoseley - Page 4 (JC-0464) 

Dist., 84 S.W.2d 1004 (Tex. Con-u-&n App. 1935, judgrn’t adopted), the board member would 

automatically resign from the DED office upon qualifying for the legislature. 

SUMMARY 

Because a member of the Texas Department of Economic 

Development governing board does not hold a “lucrative” office 

within the meaning of article III, section 19 of the Texas Constitution, 

that constitutional provision is not relevant to a board member’s 

eligibility to run for legislative office or to serve as a legislator. 

Article III, section 19 does not require a board member to resign from 

office in order to run for legislative office and would not affect a 

member’s eligibility to serve should he or she be elected to office. 

However, article XVI, section 40(d) of the Texas Constitution 

prohibits a state legislator from holding an unpaid state office and 

would preclude a person from serving as both a member of the 

Department of Economic Development governing board and as a 

legislator. 

Attorney General of Texas 

HOWARD G. BALDWIN, JR. 

First Assistant Attorney General 

NANCY FULLER 

Deputy Attorney General - General Counsel 

SUSAN DENMON GUSKY 

Chair, Opinion Committee 

Mary R. Crouter 

Assistant Attorney General, Opinion Committee