Untitled Texas Attorney General Opinion

ATTORNEY GE&RAL OF TEXAS

GREG ABBOTT

April 6,2006

The Honorable Galen Ray Sumrow Opinion No. GA-0421

Rockwall County Criminal District Attorney

Rockwall County Government Center Re: Whether under article III, section 19 of the

1101 Ridge Road, Suite 105 Texas Constitution a city council member whose

Rockwall, Texas 75087 current term of office is uncompensated is eligible

for election to the legislature (RQ-040%GA)

Dear Mr. Sumrow:

You ask whether under article III, section 19 of the Texas Constitution a city council member

whose current term of office is uncompensated is eligible to be elected to the legislature.’ Your

question concerns a home-rule municipality whose city charter authorizes the council to set the

council members’ compensation, if any, by ordinance. See Request Letter, supra note 1, at 1; see

also CITY OF ROCKWALL, TEX. HOME RULE CHARTER art. III, 5 3.03 (1985) (directing that the

council must determine council members’ compensation by ordinance) Fereinafter RockwBll

Charter]. You inform us that the council member at issue was first elected to a two-year term on the

council in May 2003. See Request Letter, supra note 1, at 1; see also Rockwall Charter, supra,

§ 3.01 (directing that council members “shall serve for a term of two years”). At that time, in

accordance with an ordinance, each council member received $90 per year as compensation. See

Request Letter, supra note 1, at 1. Consequently, the council member received $90 in May 2004 for

serving from May 2003 through May 2004 and $90 in May2005 for serving from May 2004 through

May 2005. See id. The council member was reelected to another two-year council term in May

2005, and the term started in that month. See id. On September 19,2005, the council repealed the

ordinance providing compensation to council members. See id. Accordingly, you state, the council

member “will not be paid for his second term of service on the City Council (from May 2005%May

2007).” Id. The council member recently announced his candidacy for a seat in the Texas Senate.’

‘See Letter from Honorable Galen Ray Sumrow,Rockwall County CriminalDistrictAttorney, to Honorable

Greg Abbott, Attorney General of Texas (Oct. 25, 2005) (on file with the Opinion Committee, also available at

http://www.oag.state.rx.us) [hereinafter Request Letter].

‘See Ian McCann, Rockwall Council Member Says He’ll Race DeueN for Senate Seat, DENTON RECORD-

CHRONICLE(Nov. 2,2005) (mailabk af http://dentonrc.com/s/dws/news/city/roc~a~lrowle~s~ories~N-deuellduel~O2

met.ART.North.EditionZ.ld2bc858.html); see also Roy Maynard, RockwaN McCaNum Chdenges Da& TYLER

MORNING TELEGRAPH(Dec. 28,200s) ( available at http://www.zwire.com/site/news.cfm?newsid=15832815&BRD=

1994&PAG=46l&dept_id=226369&rfi=S).

The Honorable Galen Ray Sumrow - Page 2 (GA-0421)

You ask whether the council member is ineligible to run for the Texas Legislature under

article III, section 19 of the Texas Constitution, and we are therefore called upon to examine that

constitutional provision. See id. at l-2; see also TEX. CONST. art. III, 5 19. We note, as a

preliminary matter, that the City of Rockwall’s (the “City”) charter requires that an increase in

council members’ compensation may not “take effect until the commencement ofthe terms of Mayor

and/or Council members elected at the next regular election.” Rockwall Charter, supua, § 3.03. But

nothing in the charter forbids the council from decreasing or eliminating its compensation mid-term.

See id. Moreover, as the City is a home-rule municipality, see id. 3 2.01, it is not subject to Local

Government Code section 141.001, which requires a type A general-law municipality to set elected

officers’ salaries “[o]n or before January 1 preceding a regular municipal election” and prohibits

changing the compensation mid-term, see TEX. LOC. GOV’T CODE ANN. 3 141.001 (Vernon 1999);

see also City ofBrownsville v. Kinder, 204 S. W. 446,447 (Tex. Civ. App.-San Antonio, writ ref d)

(construing pre-codified version of Local Government Code section 141.001).

In interpreting a constitutional provision, we begin with the text itself. See Wentworth v.

Meyer, 839 S.W.2d 166,767 (Tex. 1992). When the text’s meaning is in doubt, we “consider the

intent of the people who adopted the constitution.” Id. And we must strictly construe a provision

that restricts the right to hold office to minimize ineligibility. See id.

Under article III, section 19, no person “holding a lucrative office under this State

shall, during the term for which he is elected be eligible to the Legislature.” TEX. CONST. art.

III, 3 19. “The policy underlying” article III, section 19, as the Texas Supreme Court determined in

1992, “is the doctrine of separation of power&] which was considered a means of mitigating undue

influence by the executive upon the legislative branch.” Dawkins v. Meyer, 825 S.W.2d 444,448

(Tex. 1992); accord Wentworth, 839 S.W.2d at 767 (discussing Dawkins).

At present, the council member about whom you ask is uncompensated and thus does not

hold a lucrative office. According to the Texas Supreme Court, “an office is lucrative” for purposes

of article III, section 19 “if the office holder receives any compensation, no matter how small,”

although “[rleimbursement for expenses alone does not render an office ‘lucrative.“’ &w&s, 825

S.W.2d at 447; see In re Carlisle, 49 Tex. Sup. Ct. J. 262,264,2006 WL 120292, at *3 (Tex. Jan.

17,2006) (per curiam) (holding that reimbursement for meals does not render an office lucrative);

Whitehead Y.Julian, 476 S.W.2d 844,845 (Tex. 1972) (holding that a $50 expense allowance does

not render an office lucrative if expenses exceed the allowance). Article III, section 19 applies to

a salaried city council member. Sex?Willisv. Potts, 377 S.W.2d 622, 627 (Tex. 1964) (concluding

that a city council member who received $10 per diem for each regular meeting plus necessary

expenses held a lucrative office for purposes of article III, section 19); Tex. Att’y Gen. LO-89-106,

at 1 (citing Willis for the proposition that a salaried city council member holds a lucrative office).

Nevertheless, you seem to be concerned that the compensation the council member received

during his first two years in office may render his office lucrative. See Request Letter, supra note

1, at 2. Under article III, section 19 a person holding a lucrative office under this state is ineligible

for the legislature “during the term for which” the person was elected. TEX. CONST. art. III, 5 19.

In our opinion, the word “term” in this context is synonymous with the phrase “term of office.”

The Honorable Galen Ray Sumrow - Page 3 (GA-0421)

“A term of office is a fixed and definite period” that is generally set by law. Tex. Att’y Gen. Op. No.

JC-0264 (2000) at 5; see Spears v. Davis, 398 S.W.2d 921,926 (Tex. 1966). The Texas Supreme

Court has clearly distinguished between the phrase “term of office” and an individual’s tenure of

office. See Spears, 398 S.W.2d at 926. “The period of time designated as a term of oflice may not

and often does not coincide with an individual’s tenure of office.” Id. As this office has stated, “[a]

term of office may be legally established for a period of two, three, four[,] or six years. A given

individual, however, may serve for a shorter or longer period than the term prescribed by law.” Tex.

Att’y Gen. LO-89-106, at 2.

The City’s charter sets city council members’ terms at two years. See Rockwall Charter,

supra, 5 3.01; see also Request Letter, supra note 1, at 1 (indicating that the council member’s first

term ran from May 2003 through May 2005 and his second term runs from May 2005 through May

2007). Although the council member held a lucrative office during his first two-year term, his

current two-year term, which commenced in May 2005, is not lucrative. Under the city ordinance,

he will receive no compensation during the current two-year term. See Request Letter, supra note

1, at l-2.

We accordingly conclude that article III, section 19 does not, in these circumstances, render

this council member ineligible from election to the legislature. In reaching this conclusion, we

assume that the city council repealed its compensation ordinance by adopting an ordinance. See

Rockwall Charter, supra, 5 3.11(l) (“After adoption an ordinance shall not be repealed except

by the adoption of another ordinance .“). If the repeal was not accomplished by ordinance, it is

ineffective. See City ofSan Antonio v. Micklejohn, 33 S.W. 735,736 (Tex. 1895) (“The act which

destroys should be of equal dignity with that which establishes.“).

Of course, should the council member be elected to the legislature, he automatically resigns

his council seat when he qualifies for the legislative offrce.3 See TEX. CONST. art. XVI, 5 40(d) (“No

member of the Legislature may hold any other office under this State .“); Purcell v.

Carillo, 349 S.W.2d 263, 263 (Tex. Civ. App.-San Antonio 1961, no writ) (stating that, for

purposes of article XVI, section 40, an individual does not “hold” an office until the individual

qualifies or enters upon the office’s duties); Tex. Att’y Gen. Op. No. JC-0464 (2002) at 3-4

(concluding that under article XVI, section 40(d) anew legislator automatically resigns an existing

position on a state board’s governing body).

'Becausethe Rockwall city council members hold office for two-year terms, article XI, section I I ofthe Texas

Constitution, under which a council member would automatically resign his or her city office should the council member

run for another office with more than one year let? in the council term, does not apply. See TEX. CONT. art. XI, 5 11,

The Honorable Galen Ray Sumrow - Page 4 (GA-0421)

SUMMARY

A city council member whose current term of office, which

began in May 2005, is uncompensated in accordance with ordinance

is eligible for election to the Texas Legislature under article III,

section 19 of the Texas Constitution.

BARRY R. MCBEE

First Assistant Attorney General

ELLEN L. WlTT

Deputy Attorney General for Legal Counsel

NANCY S. FULLER

Chair, Opinion Committee

Kymberly K. Oltrogge

Assistant Attorney General, Opinion Committee