Honorable Bob Bullock Opinion No. M-1121
Secretary of State
State Capitol B;~r~~ng Re: Construction of Subdivision
Austin, Texas 3 of Article 3.04, Texas
Election Code.
Dear Mr. Bullock:
Your request for an opinion on the above subject
matter asks the following questions:
"1 . Is the present Bidalgo County Democratic
Chairman eligible to hold both the party office
of county chairman and,the office of trust as a
Regent of Pan American University?
“2 . If he may not hold both positions, in
which position is there a vacancy and how must
the vacancy be filled?
“3.Since absentee balloting has already
begun, the present chairman appears on the ballot.
In the event he is elected, is there a vacancy in
the position of county chairman?
“4. Does Article 3.04, Subdivision 3, of the
Texas Election Code contravene either the Consti-
tution or the laws of the United States or of
this State?"
Subdivision 3 of Article 3.04, Texas Election Code,
reads 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 office, 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."
Section 3 of Article I of the Constitution of Texas
provides:
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Hon. Bob Bullock, page 2 (M-1121)
"ALL FREE MEN HAVE EQUAL RIGHTS. -- All
free men, when they form a social compact, have
equal rights, and no man, or set of men, is en-
titled to exclusive separate public emoluments,
or privileges, but in consideration of public
services."
The Supreme Court of Texas in Burroughs v. Lyles, 142
Tex. 704, 181 S.W.Zd 570 (19441, held that the protection pro-
vided in Section 3 of Article I of the Texas Constitution applies
to political rights. The court held at 181 S.W.Zd 574:
"Article I, Section 3, of the Constitution
guarantees to all persons equality of rights. This
provision of the Constitution was designed to pre-
vent any person, or class of persons, from being
singled out as a special subject for discriminating
or hostile legislation. 9 Tex.Jur., p. 551, s 115.
This principle of equality also applies to political
rights. 9 Tex.Jur., p. 552 S116. Under the fore-
going provision of the Constitution the Legislature
has the power to adopt any classification it sees
fit, provided there is a reasonable basis for such
classification. Ex parte Faison, 93 Tex.Cr.R. 403,
248 S.W. 343; Lossing v. Hughes, Tex.Civ.App., 244
S.W. 556; Friedman v. American Surety Co. of New
York, 137 Tex. 149, 151 S.W.Zd 570.
"The statute here involved purports to apply
only to 'executive or administrative' officers, and
in the second paragraph expressly exempts members
of the Legislature and the Judiciary. The dis-
crimination is apparent, and we can perceive no
reasonable basis for the classification. The Act
violates the Constitution, and is therefore void."
In Turner v. Fouche, 396 U.S. 346 (1970), the court
held:
"The State may not deny to some the privilege
of holding public office that it extends to others
on the basis of distinctions that violate federal
constitutional guarantees."
In construing the provisions of Section 3 of Article
I of the Constitution of Texas and the Fourteenth Amendment to
the Constitution of the United States, it was held in Rucker v.
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Hon. Bob Bullock, page 3 (M-1121)
State, 342 S.W.Zd 325, 327 (Tex.Crim. 1961):
II
. As these provisions have been con-
. .
strued by the highest courts of this state as well
as by the Supreme Court of the United States, a
state law is not repugnant to either constitutional
provision so long as unequal treatment of persons
is based upon a reasonable and substantial classi-
fication of persons. Unequal treatment of persons
under a state law which is founded upon unreason-
able and unsubstantial classification constitutes
discriminatory state action and violates both the
state and federal constitutions." (Citing numerous
authorities).,
The Court concluded:
"There appears no reasonable and substantial
classification of persons which justifies the
imposition,of a $25 fine upon peddlers, salesmen,
and solicitors and a $200 fine upon all other
persons for the same act."
Applying the foregoing principles to the provisions of
Subdivision 3 of Article 3.04, Texas Election Code, it is noted
that an officeholder under the State or United States is not
prohibited from holding any political office; on the contrary,
its provisions apply only to certain specific party offices.
Furthermore this prohibition applies to all offices of profit
or trust and is not limited to incompatible duties.
Under the test prescribed by the foregoing cases we
can perceive of no reasonable basis for the classification con-
tained in Subdivision 3 of Article 3.04 of the Texas Election
Code. It was held in Starns v. Malkerson, 326 F.Supp. 234
(1970):
"Our initial concern is to determine the
standard we must apply in evaluating the classi-
fication made by the regulation. When the dis-
crimination created by a statute or regulation
infringes on a person's fundamental rights, the
Supreme Court has said that it is not afforded
the deference usually given to the judgment of
state legislatures. See, e.g., Kramer v. Union
Free School District No. 15, 395 U.S. 621, 627,
89 S.Ct. 1886, 23 L.Ed.Zd 583 (1969); Harper v.
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Hon. Bob Bullock, page 4 (M-1121)
Virginia State Board of Elections, 383 U.S. 663,
86 s.Ct. 1079, 16 L.Ed.Zd 169 (1966). The test in
such a case is not whether there is a 'rational
basis' for the distinctions made, but rather
whether the distinctions are necessary to promote
a 'compelling state interest'. Kramer v. Union
Free School District No. 15, supra, 395 U.S. at
627-620, 89 S.Ct. 1886. On the other hand, when
the classification does not affect a fundamental
right, its constitutionality is to be judged on
the basis of whether the distinctions drawn by
the statute have some rational relation to a
legitimate state interest. See, e.g., McGowan
v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.Zd
393 (1961); Lindsley v. Natural Carbonic Gas Co.,
200 U.S. 61, 31 S.Ct. 337, 55 L.Ed. 369 (lgll)."
Applying the above principle to the statute we are un-
able 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.
Nor do we find any reasonable basis for the prohibition when
the duties of such political offices are compatible with the duties
of the State governmental offices, and the statutory provision
thus is unconstitutionally overbroad.
It is therefore our opinion that the provisions of
Subdivision 3 of Article 3.04, Texas Election Code, violate the
provisions of Section 3 of Article I of the Constitution of Texas
and the Fourteenth Amendment to the United States Constitution.
In view of our holding it is,unnecessary to answer your
remaining questions,
SUMMARY
The provisions of Subdivision 3 of Article
3.04, Texas Election Code, prohibiting a person
holding any office of profit or trust under the
United States or this State or any city or town
in this State from serving as chairman or as a
member of any district, county, or city executive
committee of a political party is in violation of
Section 3 of Article I of the Constitution of Texas
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Hon. Bob Bullock, page 5 (M-1121)
and the Fourteenth Amendment to the United States
Constitution.
Very t*tilyyours,
Prepared by John Reeves
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen; Co-Chairman
J. C. Davis
Malcolm Quick
Bill Campbell
Jack Goodman
SAMUEL D. MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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Untitled Texas Attorney General Opinion
Combined Opinion