Untitled Texas Attorney General Opinion

Honorable Charles L. Ballman, Chairman House General Investigating Committee Austin, Texas Opinion No. W-1476 Re: Term of office of Members off the House of 'Representatives, Dear Mr. Ballman: and related questions. Your request for an opinion on the above subject matter asks the following questions: "1. What is the earliest date a newly elected member of the 58th Legislature can qualify for office by taking the oath pre- scribed by the Constitution? "2 Does the annual salary of a member of the ieglslature commence on the date he takes the oath of office? If not, on what date can such salary legally be commenced? “3. Gn what date does the salary end for a member of the 57th Legislature who will not be a member of the 58th Legislature? “4 . Is your answer to question number 3 affected any way by the fact that the 58th Legislature was elected under the new Re- apportionment statute and the Individual dls- trlcts are not necessarily the same JS those for the 57th Legislature? “5. What Is the status of a member of the 57th Legislature after November, 1962, whose district was officially abolished by the 1961 Re-apportionment Act? Does he con- tinue to hold office until January or does he cease to be a member when the election re- sults are certified by the Secretary of State? Hon. Charles L. Ballman, page 2 (WW-1476) “6. During the period from November, 1962, to January, 1963, should the salary of members of the Legislature continue to be paid on a monthly basis? If not, on what basis should it be paid? Does your answer apply both to members of the 57th who will not be members of the 58th,,as well asto mem- bers of the 58th who were notmembers, of the 57th? “7. With re,spect,.toInterim committees, when does a member of the 57th Le islature ,who will,not be a member of the 5%th Legis- ,lature.cease~to be eligible to serve on an interim committee? ,, “8. In view of the provisions of the. ~. Legislative Reorganization Act.specifically prescribing the terms of members of the Gene- ral Investigating Committee, is their author- ity to continue serving on this committee,any different from the members.serving on other interim committees who are affected by yours answer to question number 7?” In addition to the foregoing questions; you have supple- mented your request with the following Information,and ques- tions: "Supplementary to our previous letter on the above subject L"pkrmsof members of the Legislature we,need advice concerning the status of -i: t e office of Speaker of the House of Representatives during the interim period between'November 1962 and January 1963. .' "As you probably know the present Speaker, Mr. James A.~Thurman,did not seek.re-election to the House of Representatives, In the Re- aowortionment Act his old district, No. 24, com- posed of Fannin County, .is now a new district, No. 24, composed of Fannin and,>HuntCounties. II . . .~ .; "1. Does Mr. 'Turmtincontinue to be a mem- ber of the House-.ofRepresentatives until,his successor for the district takes his oath of Hon. Charles L. Rallman, Page 3 (WW-1476) office as a member of the 58th Legislature? If not, when does Mr. Turman cease to be a member of the 57th Legislature? “2. If you hold that Mr. Turman ceases to be a member of the 57th Legislature on a date prior to January, 1963, can he continue to perform the administrative duties of Speaker of the House until the new Speaker is selected?” Section 4 of Article III of the Constitution of Texas pro- vides: “Sec. 4. The members of the House of Representatives shall be chosen by the quall- fled electors, and their term of office shall be two years from the day of their election.” In construing the above quoted provisions, It was pointed out in Attorney General’s Opinion w-963 (1960): ions 6I~8WB”~l~~~~,‘~-?A~~‘~:~89~~~~:;~8~:~;4 found in ‘Reports and Opinions of the Attorney’ General,’ 1914-16, age 505), that the pro- visions of Section e of Article III and Section 17 of Article XVI, above quoted, are to be con- strued together and the term of office as a mem- ber of the Legislature only expires after the successor has duly quallfled by taking the oath of office. “Under the provisions of Section 4 of Artl- cle III of the Constitution of Texas, the succes- sor may qualify on the day of his election. Thus, assuming that the members of your committee are reelected, they will serve during the term of of- fice as members of the Legislature until the con- vening of the 57th Legislature. II . . . “It is noted that the provisions of Artl- cle 542ge govern the term of offloe of the membership on an interim committee of the Legis- lature, such as your committee, and in addition to the provisions of Subdivision b, providing for Hon. Charles L. Ballmam , ~page 4, (~~1476):~ the termination of,'membershlp:In the,Legis- lature, Subdivision c also provides that fail- ure of such member to secure electionto member- ship in the Legislature for the next succeeding term fill result in'terminatlon of,the membership on the committee. Therefore, you.'areadvised that If any member of your committee Is not reelected, his membershlp.v~lllcease ,when the canvass of the returns of the.General Election,reveals that he has not secured election to membership in the 57th Legislature." The 57th Legislature amended Article 5429e of Vernon's Civil Statutes, referred to In Attorney,General's Opinion WW- 963, so as now to provide: "The membership of any duly appointed Senator or Representative on the Legislative Budget Board or on the Lcglslatlve Council, or on any other Interim~~Committee,,shall, on the following contingencies, terminate, and the vacan- cy created thereby shall be immediately filled by appointment for the unexpired term in the same manner as other.appolniments to the,Legislative Budget Board5 the Legislative Council, or the other Interim Committee, as the case'may be, are made: "(a) Resignation of such membership; "(b) Cessation of membership in the Legislature for death or any reason.," 1Li.s noted that'Subdivision c has beenremoved from the provisions of Article 5429e~and ,membership onan interim committee does not now ceaseuntil the.terminationof his mem- bership in the Legislature ,(oruntil resignation of member- ship of the committee). Section 24 of Article III of the Constitution of Texas provides as follows: "Sec. 24. Members of'the:Leg$slature shall receive from the,Public Treasury an.annual sal- ary of not exceeding Four Thousand and Eight Hundred Dollars ($4,800) 'per year and,a per diem Hon. Charles L. Ballman, page 5 (W-1476) of not exceeding Twelve Dollars ($12) per day for the first one hundred and twenty (120) days only of each ReB;UlarSession and for thirty days (30) of each Special Session of the Legislature. No Regular Session shall be of longer duration than one hundred and forty (140) days. "In addition to the per diem the Mem- bers of each House shall be entitled to mile- age in going to and returning from the seat of government, which mileage shall not exceed Two Dollars and Fifty Cents ($2.50) for every twenty-five miles, the distance to be computed by the nearest and most direct route of travel, from a table of distanc,esprepared by the Comp- troller to each county seat now or hereafter to be established; no Member to be entitled to mile- age for any extra Session that may be called with- in one (1) day after the adjournment of the Regu- lar or Called Session," In construing the provisions of Section 24 of Article III of the Constitution of Texas, It was held in Attorney General's Opinion ~~-1046 (1961): "An answer to your third and fourth ques- tions depends on the date that an Individual qualified as a member of the Legislature. In other words, if an individual member of the 57th Legislature qualified prior to canvassing of the returns of the election held on November 8th, 1960, he would be entitled to the compensation provided in Section 24 of Article III, as amend- ed, until his successor qualifies for office. On the other hand, If an individual member did not qualify until some date subsequent to the canvass- ing of the returns of the General Election held on November 8th, 1960, his predecessor in office would be entitled to the compensation provided for in Section 24 of Article III of the Constitution of Texas, as amended, until such time as the suc- cessor of such individual had qualified. "You are, therefore, advised in answer to questions Nos. 3 and 4, a newly elected member of the Legislature who did not qualify until _ the convening of the 57th Legislature would not be entitled to the constitutional salary prior Hon. Charles L. Ballman, page 6 (10J-1476) to the date of his qualification, but the hold-over member whom the newly elected member succeeded would be entitled to the constitution- al salary prior ,to the date his successor quali- fied. "Summarizing our holding herein you are advised that members of the Legislature are en- titled to the constitutional salary, per diem and expenses provided therein, from the effec- tive date of the amendment adopted at the elec- tion held onNovember 8th, 1960 (to-wit: Novem- ber 25, 1960, the date of the canvassing of the returns). Newly elected members are entitled to the constitutional salary when they qualify for office and may not receive the constitutional salary for any period of time prior to the date they qualify for office. Hold-over members are entitled to the constitutional salary from the date of the canvassing of the returns of the Gene- ral Election held on November 8th, 1960. Members of the Legislature who were not reelected to of- fice will receive the constitutional salary from the date of the canvassing of the returns of the General Election of November'ath, 1960, to the date that the newly elected member qualifies for office." In view of the provisions of Section 4 of ,ArticlcIII of the Constitution of Texas and the provisions of Article 5429e, Vernon's Civil Statutes, above referred to in Attorney General's Opinion bfld-963, your questions are answered as fol- lows : 1. The earliest date a newly elected Member of the 58th Legis,laturecan qualify for office by taking the oath prescribed by the Constitution is the date of canvassing the returns of the Gene- ral Election held on November 6th, 1962. Section 4 of Article III of the Constitution of Texas; Attorney General's Opinions ~~-963 (1960) and Ww- 1046 (1961). 2. The annual salary ofta.Member of the Legis- lature begins on the date he qualifies for office. '1960) and W- Attorney General's Oplniqns 1YPJ-963 , 1046 (1961). 3 and 4. The salary of a Member of the 57th Legislature who is not reelected ceases on the date his successor qualifies for office.,Attorney General's Opinions WW-963 (1960) and ~-1046 (1961). . Hon. Charles L. Ballman, page 7 (NW-14761 5. Section 3 of House Bill 349, Acts of the 57th Legislature, Re ular Session 1961, ch . 256, p. 544 at page 548 7the Redistricting Act 1 provides: "This Act shall become effective for the elections, Primary and General, for all Repre- sentatives, from the places herein specified and described, to the Fifty-eighth Legislature and continue In effect thereafter for succeed- ing Legislatures; provided specifically that this Act shall not affect the membershjn. per- sonnel or districts, of the Fifty-seventh Legis- lature; and provided further, that in case a vacancy occurs in the office of any Representa- tive of the Fifty-seventh Legislature by death, resignation, or otherwise, and a Special Elec- tion to fill such vacancy becomes necessary, said election shall be held in the District as it now exists.'I In view of the foregoing provisions, a Mem- ber of the 57th Legislature whose district was officially abolished by the foregoing Act con- tinues to hold office until the newly elected Member from the area now covered by the 1961 Act qualifies for office. 6. Durln the period from November, 1962, to January, 19% 3, the salaries of Members of the Legislature continue to be paid on a monthly salary basis. Of course, when a newly elected Member qualifies during this period of time, the former Member is entitled to the annual salary until the date his successor qualifies and there- after the newly elected Member is entitled to the salary from the date he In this con- we call your attention to the provisions of Section 2 of Article III of the Constitution of Texas, which provides that the number of Rep- resentatives in the House of Renresentatives shall never exceed one hundred and fifty. There- fore, you are advised there can never be mere than one hundred and fifty qualified Members of the House of Representatives at any time. 7. A member of an interim committee of the 57th Legislature ceases to be eligible to serve . Hon. Charles L. Ballman, page 8 (w-1476) on such,lnterim committee on the date of the cessation of his membership in the Legislature (the date his successor qualifl.eofor office as a member of the Legislature). 8. A member of the House General Investi- gating Committee creasesto be eligible to serve on such interim committee on the date of the c,essationof his membership in the Legislature (the date his successor qualifies for office as a member of the Legislature). In answer to your supplemental questions, it is noted that prior to the enactment of House Bill 3119, Acts of the 57th Legis- lature, Regular Session 1561, chapter 256 (the Redistricting Act), the Speaker of the House of Representatives, Mr. James A. Turman, was elected as Representative of District 24, then cornnosed of Fannin County. This district in now a new district, No. 24, composed of Fannin and Hunt Counties. Artic,le195, Vernon's Civil Statutes, as amended. In anwer to your supplemental question MO. 1, you are ad- vised that our answers to questions contained in your original request are equally applicable to Mr. Tutman's membership in the House of Representatives. You are , ,therefore, advised that Mr. Turman continues to be a Member of the House of Representa- tives until his successor for District No. 24, now comprising Fannin and Hunt Counties, qualifies for office. Section 9 of Article III of the Constitution of Texas pro- vides in part: "The House of Representatives shall, :Jhen it first assembles, organize temporarily, and thereupon proceed to the election of a Speaker from its own'members; . . .' In view of the foregoing ?rovSsions, 'TheSpeaker of the House of Representatives in.order to be eligible to serve as Speaker of the House of Representatives must,be a member of the House of Representatives. In vi.ewof the provisions of Section 17 of Article ,WI of the Constitution of Texas, the Speaker con- tinues to perform the duties of his office until his successor shall be duly qualified. Therefore, you,are zdvieed in answer to your second supplemental question that Mr. Tuiliian cnntinuez to perform the duties of Speaker of the House of Representatives until a ne?JSpeaker is elected, unless he becomes ineligible to serve as Speaker prior the'retoby the newly elected Kcmber of the House of R-prcsentativos from District 24, composed of Tannin and Hunt Counties, qualifying for office. Hon. Charles L. Ballman, page,$I (W-1476) SUMMARY A newly elected Member of the Legislature may qualify for office and be entitled to the compen- sation provided in Section 24 of Article~III of the Constitution of Texas from the date of his qualification for office as a Member of the Legls- lature. A newly elected member may qualify on the date of the canvassing of the returns of the General Election held on November 6th, 1962.' Members of the 57th Legislature who are not re- elected cease to be eligible to serve on commit- tees of the Legislature on the date that their successors qualify, and the earliest date on ?ihichthey may qualify is November 23, after the Secretary of State has canvassed the returns of the General Election in the presence of the Gover- nor and the Attorney General in accordance with the provisions of Article 8.38 of Vernon's An- notated Election Code. The present Speaker of the House of Representa- tives continues to serve as Speaker until a neJ;l Speaker is elected, unless the present Speaker becomes ineligible by the newly elected Member of the House of Representatives from District No. 24, composed of Fannin and Hunt Counties, qualify- ing for office. Attorney General's Opinions (1960) and ~~-1046 (1961); Section 4 of \.fw-g63 Article III of the Constitution of Texas. Yours very truly, WILL WILSON Attorney General of Texas By:I &<* /&,