September 24, 1975
The Honorable Oscar B. McInnis Opinion No. H- 698
Criminal District Attorney
Hidalgo County Re: Whether a mayor may serve
Edinburg, Texas as county chairman of a political
executive committee.
Dear Mr. McInnis:
You have requested our opinion regarding whether a mayor may serve
as county chairman of a political party executive committee.
Section, 3 of article 3.04 of the Texas Election Code provides as follows:
No one shall act as chairman or as member of any
district, county, or city executive committee of a
political party who is not a qualified voter, or who
is a candidate for public offic:e, or who holds any
office of profit or trust, either under the United
States or this state, or any city or town in this state.
In Attorney General Opinion M-1121 (1972), ,this ‘Office~held that section 3
violates article 1, section 3 of the Texas Constitution and the Fourteenth
Amendment to the United States Constitution; The Attorney General reached
this conclusion because he was:
unable to discern any compelling state interest which
is served by making the statute applicable to the
chairman and members of a district, county, or city
executive committee of a political party and not applicable
to the chairman or members of a State executive committee
or any other officer of a political party.
p. 3025
The Honorable Oscar B. McInnis - page 2 (H-698)
Opinion M-1121 applied the “compelling state interest” test to
determine the validity of section 3. The United States Supreme Court has
held, however, that the “compelling state interest” test is applicable only
when “fundamental rights” are involved. When non-fundamental rights are
at issue, the test is “whether the challenged state action furthers a legiti-
mate state purpose or interest, ” or whether the statute bears a “rational
relation to a legitimate state interest. ‘I San Antonio Independent School
District v. Rodriguez., 411 U.S. 1 (1973); Starns v. Malkerson, 326 F. Supp.
234 (1970). See also Kramer v. Union Free School District No. 15, 395
U.S. 621, 627-28 (1969); McGowan V. Maryland, 366 U.S. 420, 425 (1961).
The Supreme Court has held that the right to candidacy is not a funda-
mental right. Bullock V. Carter, 405 U.S. 139,142-43 (1972). See also
Adams v. Askew, 511 F. 2d 700, 703 (5th Cir., 1975), We believe that the
non-fundamental status of the right to candidacy is applicable to the right to
act as a chairman or member of a political party executive committee.
We believe that it was reasonable for the Legislature, for purposes
of proscribing the holding of certain political positions by public officers, to
draw a distinction between, on the one hand, membership on a State executive
committee, and, on the other, membership on a district, county or city
executive committee. The Legislature might reasonably have concluded that
political affiliations by public officers on a local level could result in a sub-
stantially greater potential for abuse of those public offices than would such
political affiliations on a statewide level. We believe that the Legislature
has a legitimate interest in maintaining the integrity of public institutions,
and that the means chosen in this instance bears a rational relation to that
purpose.
In Broadrick v. Oklahoma, 413 U.S. 601 (1973), the Supreme Court
upheld an Oklahoma statute which, inter alia, prohibited only classified state
employees from being members of a national, state or local committee of a
political party. The Court declared that:
p. 3026
The Honorable Oscar B. McInnis - page 3 (H-698)
. . . the legislature must have some leeway in
determining which of its employment positions
require restrictions on partisan political activities
and which may be left unregulated. . . .. Ahd a’state
can hardly be faulted for attempting to limit the
positions upon which such restrictions are placed.
413 U.S. at 607, fn. 5.
It is therefore our opinion that section 3 of article 3.04 bears a rational
relation to a legitimate state interest, and, as such, does not violate the
Equal Protection Clause of the Fourteenth Amendment.
Opinion M-1121 also held section 3 of article 3.04 to be in violation
of article 1 section 3 of the Texas Constitution, which provides:
All free men, when they form a social compact, have
equal rights, and no man, or set of men, is entitled
to exclusive separate public emoluments, or privileges,
but in consideration of public services.
The basis of this conclusion was the Supreme Court’s decision in Burroughs
v. Lw 181 S. W. 2d 570 (Tex. Sup., 1944) and the Court of Criminal Appeals
opinion in Rucker v. State, 342 S. W. 2d 325 (Tex. Crim. App. : 1961), neither of
which articulate any standard different from those imposed by the federal Con-
stitution. In Burroughs v. Lyles, B, the Supreme Court held that:
. . . the Legislature has the power to adopt any classifi-
cation it sees fit, provided there is a reasonable basis
for such classification. 181 S. W. 2d. at 574.
Since, as we have indicated, we believe that there is a reasonable basis for
the classification provided by section 3 of article 3.04, it is our opinion that
the statute does not contravene article 1, section 3 of the Texas Constitution.
Accordingly, a mayor may not act as county chairman of the executive committee
of a political party. Attorney General Opinion ~MYl121-,is oeerruled, t,o the
extent of conflict with this Opinion.
p. 3027
The Honorable Oscar B. McInnis - page 4 (H-698)
SUMMARY
A mayor may not serve as county chairman of
the executive committee of a political party.
Very truly yours,
Attorney General of Texas
L, First Assistant
C. ROBERT HEATH, Chairman
Opinion Committee
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p. 3028