The Attorney General of Texas
MARK WHITE
Attorney General September 10, 1982
Mr. David Dean Opinion No. MW-513
Supreme Court Building
Secretary of State
P. 0. Box 12546
Austin. TX. 76711. 2546
P. 0. Box 12697 Re: Construction of article
512/475-2501 Austin, Texas 78711 III, section 19 of the Texas
Telex 9101674-1367 Constitution
Telecopier 512/475.0266
Dear Mr. Dean:
1607 Main St., Suite 1400
Dallas, TX. 75201.4709 You inquire about the effect of the recent United States Supreme
2141742-6944 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
4624 Alberta Ave., Suite 160
El Paso, TX. 79905.2793
to their constitutionality raised by public officials and voters of El
91515333464 Paso county. Article III, section 19 of the Texas Constitution
provides as follows:
1220 Dallas Ave.. Suite 202
No judge of any court, Secretary of State,
HOUS,O~, TX. 77002-6966
7131650-0666 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
606 Broadway, Suite 312 government shall during the term for which he is
Lubbock, TX. 79401.3479
elected or appointed, be eligible to the
6061747-5236
Legislature.
4309 N. Tenth. Suite B A justice of the peace of El Paso County attacked this provision as
McAllen, TX. 78501.1685 violating the equal protection and due process rights guaranteed by
5121662-4547
the first, fifth, and fourteenth amendments of the United States
constitution.
200 Main Plaza, Suite 400
San Antonio. TX. 76205.2797 Article XVI, section 65 provides that certain district, county,
5121225-4191 and precinct officers will automatically vacate their offices if they
become candidates for a second office when the unexpired term of the
An Equal Opportunityl first office exceeds one year. This provision was challenged on the
Affirmative Action Employer 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. Clements v. Fashing, 50 U.S.L.W. 4869
(1982).
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