Untitled Texas Attorney General Opinion

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

April lo,2003

The Honorable John Whitmire Opinion No. GA-0057

Chair, Criminal Justice Committee

Texas State Senate Re: Whether an individual may simultaneously

P.O. Box 12068 serve as a member of a city council and a

Austin, Texas 78711 Selective Service Local Board (RQ-0616-JC)

Dear Senator Whitmire:

Your predecessor as Chair of the Senate Criminal Justice Committee asked whether’a city

councilman’s acceptance of a position on a Selective Service Local Board serves as an automatic

resignation of his city council position.’ Selective Service Local Boards (“local boards”) are civilian

boards established under the Military Selective Service Act, 50 U.S.C. app. §§ 45 l-473 (2000), to

hear and determine claims about inclusion in and exemption or deferment from mandatory induction

into military service. See id. 5 460(b)(3); see also 32 C.F.R. $8 1602.14, 1633.2(c)-(f) (2002).

The individual was elected to the Wharton City Council in May 1999.2 In the year 2000, he

was asked by a member of the local board if he was interested in a position on the board, and he

indicated that he was. See Webb Brief, supra note 2, at 1. In August 2001, he completed the

necessary paperwork, and the Director of the Selective Service System sent him a letter dated August

8, 2001, appointing him in the name of the President a member of the local board in the State of

Texas. See id. A Certificate of Appointment dated August 8,2001, accompanied the letter.3 The

individual contends that he did not qualify as a local board member because he did not receive the

required training. See Webb Brief, supra note 2, at 2. The Certificate of Appointment demonstrates

that he was appointed as a local board member and was authorized to fulfill the duties of that office,

while the letter of appointment welcomed him to the Selective Service System and informed him that

he would be contacted about training in Selective Service policies and procedures within a few

months. Thus, the documents from the Selective Service System show that training was not

‘See Letter and attachments from Honorable Kenneth Armbrister, Chair, Criminal Justice Committee, Texas

State Senate, to Honorable John Comyn, Texas Attorney General (Oct. 3, 2002) (on file with Opinion Committee)

[hereinafter Request Letter].

2See Brief from Paul Webb, Attorney at Law, to Honorable Kenneth Arrnbrister at 1 (Aug. 26, 2002)

(attachment to Request Letter) [hereinafter Webb Brief].

3See Certificate of Appointment and Letter from Alfred Rascon, Selective Service System, to Domingo

Montalvo (Aug. 8,200l) (attachments to Request Letter).

The Honorable John Whitmire - Page 2 (GA-0057)

necessary to qualify for membership on the local board. On July 7, 2002, the Wharton mayor

informed the city councilman of the possibility that he had resigned his city council position upon

accepting the appointment to the local board.4 The city councilman irmnediately resigned his

position on the local board.

Article XVI, section 12 of the Texas Constitution states:

No member of Congress, nor person holding or exercising any office

of profit or trust, under the United States, or either of them, or under

any foreign power, shall be eligible as a member of the Legislature,

or hold or exercise any office of profit or trust under this State.

TEX. CONST. art. XVI, 5 12.

Pursuant to this constitutional provision, a person holding an office of trust under state law

who accepts an “office of profit or trust, under the United States,” id., will automatically vacate the

office held under state law. In Lowe v. State, 201 S.W. 986 (Tex. Crim. App. 1918)’ a defendant

convicted of murder challenged the authority of the special judge who tried the case. The regular

judge became an officer in the National Guard and was placed on the federal payroll. The court

stated that “when an officer of the state accepts an office of profit in the military service of the

United States, his tenure as judge ceases by virtue of the constitutional provision contained in article

16, 8 12.“’ Lowe, 201 S.W. at 987. Although the regular judge vacated his office on the date

following the election of the special judge, the special judge was authorized to continue to preside

over the court. See id. Attorney general opinions also state that a person who holds an office of

profit under this state will automatically resign that office if he or she accepts and qualifies for a

federal office of profit or trust in violation of Texas Constitution article XVI, section 12. See Tex.

Att’y Gen. Op. Nos. DM-49 (1991) at 4 (justice of Texas Supreme Court may not serve as board

member of State Justice Institute); O-53 17 (1943) at 2 (if legislator accepts a federal office he will

automatically forfeit and vacate his legislative office).

Judicial decisions under Texas Constitution article XVI, section 40 apply the rule of

automatic vacation of office followed in Lowe. Article XVI, section 40 of the Texas Constitution

provides that “[n]o person shall hold or exercise at the same time, more than one civil office of

4See Letter from Garland S. Novosad, Mayor, City of Wharton, to Domingo Montalvo, Member, Selective

Service System (July 7,2002) (attachment to Request Letter).

‘Article XVI, section 12 of the Texas Constitution no longer bars members of the National Guard from serving

as state officers. Amendments to Texas Constitution article XVI, sections 33 and 40 adopted after the Lowe case’permit

officers and enlisted members of the National Guard and other military personnel to hold public office or employment

in Texas. See Cramer v. Sheppard, 167 S.W.2d 147, 151-52 (Tex. 1942); see also Tex. S.J. Res. 7, 39th Leg., R.S.,

1925 Tex. Gen. Laws 680. The amendments to article XVI, sections 33 and 40 were held to be applicable to article XVI,

section 12 as well. See Carpenter v. Sheppard, 145 S.W.2d 562, 567 (Tex. 1940) cert. denied 312 U.S. 697 (1941).

The Honorable John Whitmire - Page 3 (GA-0057)

emolument,“6 subject to exceptions stated in the constitutional provision. In Pruitt v. Glen Rose

Indep. Sch. Dist., 84 S.W.2d 1004 (Tex. 1935),the Texas Supreme Court determined that when the

tax collector for the Glen Rose Independent School District was elected to and qualified for the

office of sheriff and tax collector of Somervell County, “he automatically forfeited his right to the

office of collector for the school district, because the holding of both said offices at the same time

by the same person is within the prohibition of article 16, 4 40, of our State Constitution.” Pruitt,

84 S.W.2d at 1006. The Pruitt court stated the rule of automatic vacation of office as follows: “If

a person holding an office is elected or appointed to another (where the two offices cannot be legally

held by the same person) and he accepts and qualifies as to the second, such acceptance and

qualification operate, ipso facto, as a resignation of the former office.” Id. When the school

district’s tax collector was elected to and qualified for the second office, and article XVI, section 40

prohibited him from holding both offices at the same time, he was deemed to have chosen the second

office and to have resigned the first office. See id. at 1006-07; see also State ex rel. Kingsbury v.

Brinkerhoff, 17 SW. 109, 110 (Tex. 1886) (elected city secretary who accepted and qualified for

office of city recorder ipso facto resigned the office of city secretary), Biencourt v. Parker, 27 Tex.

558 (1864) (notary public’s election to and qualification for office of county clerk automatically

vacated office ofnotary), Centeno v. Inselmann, 519 S.W.2d 889,890 (Tex. Civ. App.-San Antonio

1975, no writ) (trustee of city public service board would automatically relinquish that office if

elected to and qualified for city council); c$ AZejandro v. Hunter, 951 S.W.2d 102, 105-06 (Tex.

App.-Corpus Christi 1997, no writ) (when mayor pro tern agreed to perform the duties of mayor

following recall of elected mayor, he did not vacate office of mayor pro tern).

An elected city council member holds an “‘office or position of. . . trust . . . under this

State. “’ See Boyett v. Calvert, 467 S.W.2d 205,208-09 (Tex. Civ. App.-Austin 1971, writ ref d

n.r.e.) (quoting former language of Texas Constitution article XVI, 9 33); see also TEX. CONST.art.

XVI, 5 33 interpretive commentary (Vernon 1993). Thus, if a city council member is appointed to

and qualifies for an office of profit or trust under the United States, he or she will automatically

cease to be a city council member.

The position of local board member is created by federal law and board members are

appointed by the President. See 50 U.S.C. app. 4 460(b)(3) (2000). Thus, this position is held

“under the United States” for purposes of article XVI, section 12 of the Texas Constitution. See Tex.

Att’y Gen. Op. No. MW-360 (1981) at 3. It is not a position of profit because a federal regulation

provides that a local board member is uncompensated. See 32 C.F.R. 8 1609.1(2002). To determine

whether a person is a public officer, we apply the following test approved by the Texas Supreme

Court in Aldine Independent School District v. Stand@, 280 S.W.2d 578 (Tex. 1955): “‘[Tlhe

determining factor which distinguishes a public officer from an employee is whether any sovereign

function of the government is conferred upon the individual to be exercised by him for the benefit

of the public largely independent of the control of others.“’ Aldine, 280 S.W.2d at 583 (quoting

Dunbar v. Brazoria Co., 224 S.W.2d 738’740-41 (Tex. Civ. App.-Galveston 1949, writ ref d)). See

also Green v. Stewart, 516 S.W.2d 133, 135-36 (Tex. 1974); Tex. Att’y Gen. Op. No. DM-49

(1991) at 5.

6A “civil office” within Texas Constitution article XVI, section 40 is a public office “that pertains to the exercise

of the powers or authority of civil government” and “emolument” is “a pecuniary profit, gain or advantage.” State ex

rel. HiZZ v. Pirtle, 887 S.W.2d 921,931 (Tex. Crim. App. 1994) (en bane) (assistant attorney general is not an officer

within article XVI, section 40, Texas Constitution).

The Honorable John Whitmire - Page 4 (GA-0057)

This office has twice held that a member of a local board occupies an office of trust under

the United States. See Tex. Att’y Gen. Op. Nos. MW-360 (1981) at 3; O-5550 (1943) at 3-5.

Attorney General Opinion MW-360 considered whether an elected state, county or city officer could

serve as a local board member of the Selective Service System. It noted that “[tlhe federal

government recently re-established such boards and placed them in stand-by status, in the event a

military draft is again imposed.” Tex. Att’y Gen. Op. No. MW-360 (1981) at 1. Attorney General

Opinion MW-360 concluded that the following federal law delegated some of the sovereign

functions of the United States government to members of local boards:

Such local boards, or separate panels thereof each consisting of three

or more members, shall, under rules and regulations prescribed by the

President, have the power within the respective jurisdictions of such

local boards to hear and determine, subject to the right of appeal to

the appeal boards herein authorized, all questions or claims with

respect to inclusion for, or exemption or deferment from, training and

service under this title . . . of all individuals within the jurisdiction of

such local boards. The decisions of such local boards shall be final,

except where an appeal is authorized . . . .

50 U.S.C. app. 5 460(b)(3) (2000). See 32 C.F.R. 80 1605.51-.59 (2002) (composition and

jurisdiction of local boards). See also Arver v. United States, 245 U.S. 366’3 89 (19 18); Talmanson

v. United States, 386 F.2d 8 11, 8 12 (1 st Cir. 1967)’ cert. denied, 391 U.S. 907 (1968) (upholding

delegation of discretionary authority to local boards).

Attorney General Opinion MW-360 acknowledged that the local boards were on standby

status, but it did not consider the implications of their standby status or of the absence of a draft. The

Military Selective Service Act provides that “no person shall be inducted for training and service in

the Armed Forces after July 1,1973, except persons now or hereafter deferred . . . after the basis for

such deferment ceases to exist.” 50 U.S.C. app. 4 467(c) (2000); see also id. 0 454(c) (provision for

voluntary induction in Regular Army). The Selective Service System is maintained as “an active

standby organization, with . . . a complete registration and classification structure capable of

immediate operation in the event of a national emergency.” Id. 8 460(h). Local boards are

maintained in “standby status.” See 32 C.F.R. 8 1609.3(a)(6) (2002). The present status of local

boards raises an issue of whether they and their members exercise governmental authority under the

Military Selective Service Act.

The governmental authority vested in a local board is the power to consider and determine

claims from Selective Service registrants who have received an order to report for induction.

50 U.S.C. app. 8 460(b)(3) (2000); 32 C.F.R. $8 1633.2(c)-(f), 1648.1 (2002); see also id. 0 1648.6

(registrants transferred for classification). A local board’s exercise of this authority is contingent

upon the federal government’s issuance of induction orders. Federal law, however, provides that

no one shall be inducted into the Armed Services, see 50 U.S.C. app. 0 467(c) (2000)’ thereby

effectively suspending the discretionary authority of local boards. At present, a local board cannot

exercise “any sovereign function of the government,” Aldine, 280 S.W.2d at 583, and its members

therefore do not have the powers of public officers. Local boards still have functions that are

relevant to their standby status, such as keeping records and undergoing training. See 50 U.S .C. app.

The Honorable John Whitmire - Page 5 (GA-0057)

8 465(b) (2000) (registrant must keep local board informed of his current address). In contrast to a

local board’s substantive authority to hear and determine claims of exemptions or deferrnent from

conscription, a board’s present functions do not involve any exercise of discretion or judgment. See

generally Downing v. Brown, 935 S.W.2d 112, 114 (Tex. 1996) (“Ministerial actions require

obedience to orders or the performance of a duty to which the actor has no choice.“), First Nat7

Bank v. McElroy, 112 S.W. 801, 804 (Tex. Civ. App.-Texarkana 1908, no writ) (“duties of a

recording officer are ministerial”); Tex. Att’y Gen. Op. No. O-7487 (1946) at 3 (secretary to local

board does not hold an office of profit or trust under the United States).

The authority of a local board member is analogous to that of the national guard officer in

Exparte Dailey, 246 S.W. 91 (Tex. Crim. App. 1922). The court upheld a district judge’s authority

to commit the relator for contempt, determining that the judge had not vacated his office when he

was commissioned as captain in the Texas National Guard. See Dailey, 246 S. W. at 92-4. The judge

had been appointed and commissioned by the Governor of Texas, and he would not be subject to the

President’s orders until the Texas National Guard was called into the actual service of the nation.

See id. at 92. Thus, the judge did not hold a federal office under Texas Constitution article XVI,

section 12, and he had not vacated his judicial office pursuant to that constitutional provision. See

id. The Dailey opinion however “intimated . . . that the decision would have been otherwise had the

officer been called into active federal military service.” Cramer v. Sheppard, 167 S.W.2d 147,151

(Tex. 1942).7

Moreover “[a]ny constitutional or statutory provision which restricts the right to hold office

must be strictly construed against ineligibility.” Wentworth v. Meyer, 839 S.W.2d 766,767 (Tex.

1992). “[I]t follows that if a constitutional provision uncertain of meaning is susceptible of two

reasonable interpretations, the least exclusionary must be utilized.” Id. at 769 (Gonzalez, J.,

concurring). Following this rule of construction, we read article XVI, section 12 as applying only

to persons who may actually exercise federal governmental authority under the United States.

Because a local board member does not have such authority at the present time, he or she does not

hold an office of trust under federal law within that constitutional provision.

Information provided by the Selective Service System states that in the event of a return to

conscription the local boards would be “activated throughout the nation? If Congress acts to

reinstate the draft, local board members will be vested with governmental powers and will hold an

office of trust under federal law, and article XVI, section 12 of the Texas Constitution will bar local

board members from also holding or exercising any office of profit or trust under this state.

When the Wharton city councilman accepted a position on a “standby” local board, he did

not resign his office as city councilman nor did he resign his office at any time during his service.

Attorney General Opinion MW-360 (198 1) is modified in accord with this opinion.

‘Article XVI, section 12 of the Texas Constitution no longer bars members of the National Guard from serving

as state officers. See supra, note 5.

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CONSCRIPTION?at 1; avaiZabZe at httD://www.sss.gov/FShow%2Owould.htm.

The Honorable John Whitmire - Page 6 (GA-0057)

SUMMARY

Article XVI, section 12 of the Texas Constitution provides

that no one holding or exercising any office of trust under the United

States is eligible to hold an office of trust under this state. If a person

who holds an office of trust under Texas law accepts an office of trust

under the United States, he automatically resigns his Texas office.

A member of a Selective Service Local Board does not at

present occupy an office of trust under the United States because a

local board’s governmental powers are exercised only in the event of

mandatory induction into the military services, and federal law does

not today provide for conscription. The Selective Service System,

including local boards, is currently on standby status. A city

councilman who accepts an appointment to a local board at the

present time does not accept an office of trust under federal law and

therefore does not automatically resign from the city council position.

Should conscription be reinstated, members of local boards would at

that time hold governmental authority. Attorney General Opinion

MW-360 (1981) is modified in accord with this opinion.

Very truly yours,

BARRY R. MCBEE

First Assistant Attorney General

DON R. WILLETT

Deputy Attorney General - Legal Counsel

NANCY S. FULLER

Chair, Opinion Committee

Susan L. Garrison

Assistant Attorney General, Opinion Committee