Strake v. Court of Appeals for the First Supreme Judicial District

GONZALEZ, Justice,

dissenting.

I agree with the majority that this court has jurisdiction of this cause. However, I strongly dissent on the merits of this case. I would hold that a three percent across-the-board cost of living increase for all state employees does not amount to an increase in the “emoluments of office” for the attorney general. I would further hold that Senator Brown is eligible to run for Attorney General and would let the voters of this state decide his fate.

JURISDICTION

I agree with the majority’s conclusion that this court has jurisdiction to review, in a mandamus context, the ruling of the court of appeals on this constitutional question. Both the courts of appeals and the supreme court have concurrent jurisdiction to issue the extraordinary writ of mandamus against the officers of political parties to compel the performance of ministerial duties associated with the holding of an election. See TEX. GOV’T. CODE ANN. §§ 22.002(d) and 22.221(c) (Vernon 1986); see also TEX. ELEC. CODE ANN. § 273.-061 (Vernon 1986). Additionally, this court has the authority to issue a writ of mandamus to correct a court of appeals’ ruling on a pure question of law. See Chojnacki v. First Court of Appeals, 699 S.W.2d 193 (Tex.1985).

MERITS

The constitutional provision on emoluments was obviously intended to prohibit a member of the Legislature from personally benefitting by an increase in the salary or other compensation of an office he later seeks. The majority’s interpretation of the constitutional provision may conform to the letter of the prohibition, but it is at odds with the underlying purpose and the spirit of the constitutional provision.

A three percent across-the-board raise to all state employees is not an increase in emoluments of a civil office which offends article III, § 18 of the constitution. The only other Texas case to mention whether a raise was an increase in emoluments under article III, § 18 is Hall v. Baum, 452 S.W.2d 699 (Tex.1970). In Hall , this court, as a matter of law, held that a 37.5 percent increase in pay of a specific office was not insubstantial or insignificant as a matter of law. This court did not hold that any increase would be substantial. To the contrary, we discussed how the court would make a determination as to whether an increase is substantial or significant. This case is clearly distinguishable from Hall. A 37.5 percent increase to a particular office is totally different from a three percent raise to all employees.

In Spears v. Davis, 398 S.W.2d 921 (Tex.1966), another case involving article III, § 18, this court quoted with approval from Shields v. Toronto, 395 P.2d 829 (Utah 1964). In Shields , the Utah Supreme Court was faced with a qúestion similar to the one before this court. Relators were members of the Legislature who wanted to become candidates for secretary of state and governor of the state of Utah. As legislators, they enacted a general salary increase for all state officers. Addressing an identical constitutional provision, the Utah court held the purpose of the provision is “to guard against dishonesty or improper connivance by or with legislators and to pre *750 vent them from being influenced by ulteri- or schemes to enrich themselves at the expense of the public treasury....” Id. at 830 . The court further noted that when adequate safeguards are observed “there is no good reason to carry this provision beyond that purpose and make an unreasoning applicationof it where no such evil nor any possibility of it exists.” Id.

The Shields court held that the five percent raise for all state officers “cannot by any stretch of the imagination” be regarded as falling within the impropriety to be guarded against. The court also noted that the increases were not directed toward any particular office, the raise was only five percent, and a moderate cost of living adjustment. The court observed that any other holding would interfere with the right to vote for a candidate of one’s choice and impede the Legislature’s right to raise salaries.

I agree with the reasoning of the Shields court. No worthy objective or policy is served by holding Brown ineligible in this case because of a three percent increase to all state employees. I would not apply this provision to Brown when there has not been any contention of impropriety and none can be implied.

Basic policy concerns clearly dictate against the majority’s result. If the Texas Legislature implements an across-the-board salary increase, which is then considered an increase in emoluments of office, no legislator with an overlapping term will be eligible to run for any State office other than the one he currently holds. Because of this court’s holding, any legislator interested in running for any other state office will be forced to refrain from voting for a statewide pay increase. I doubt that the framers of our constitution intended such a result.

I also disagree with that portion of the majority’s opinion which holds that the rider (article 5, § 94) to the appropriations act is ineffective to avoid the constitution’s proscription on increases in the emoluments of office.

This court has observed that,

[i]n passing upon the constitutionality of a statute, we begin with a presumption of validity. It is to be presumed that the Legislature has not acted unreasonably or arbitrarily; and a mere-difference of opinion, where reasonable minds could differ, is not a sufficient basis for striking down legislation as arbitrary or unreasonable.

Smith v. Davis, 426 S.W.2d 827, 831 (Tex.1968). More importantly, the law is well established that any constitutional or statutory provision which restricts the right to seek public office should be construed against ineligibility. See Hall v. Baum, 452 S.W.2d at 702 ; Willis v. Potts, 377 S.W.2d 622, 623 (Tex.1964). Thus, article 5, § 94 has a doubly strong presumption in favor of its constitutionality.

Clearly, the burden is upon the party attacking the constitutionality of an act of the Legislature. Robinson v. Hill, 507 S.W.2d 521, 524 (Tex.1974). Strake, then, has the burden of showing that a specific constitutional provision inhibits the legislation, or that such inhibition is clearly implied. Texas Public Bldg. Authority v. Mattox, 686 S.W.2d 924, 927 (Tex.1985); Shepherd v. San Jacinto Junior College Dist., 363 S.W.2d 742, 743 (Tex.1962). Thus, we must determine if article 5, § 94 violates Tex. Const, art. Ill, § 35 — the Unity-in-Subject Clause.

The very terms of the Unity-in-Subject Clause expressly exclude general appropriations bills of the variety involved herein. The majority relies on Moore v. Shepherd, 144 Tex. 537 , 192 S.W.2d 559 (1946) for the proposition that the Unity-in-Subject Clause applies. In Moore , this court held unconstitutional under the Unity-in-Subject Clause a rider to an appropriations bill which directed the clerks of the various courts of civil appeals to deposit fees for furnishing unofficial, uncertified copies of court records into the state treasury. This court observed that the charging of such fees and the deposit thereof in the state treasury were not subjects properly included in an appropriations act.

*751 Unlike Moore , the present case involves a rider which makes conditional the very appropriations which are the subject of the act. Thus, article 5, § 94, the appropriations rider, does not, as in Moore , deal with a subject alien to the appropriations act.

The majority also relies on Jessen Associates, Inc. v. Bullock, 531 S.W.2d 593 (Tex.1975), where we upheld, against a constitutional unity-in-subject challenge, an appropriations act rider which granted a college board of regents the authority to expend funds on certain projects without prior approval of the Coordinating Board. In Jes-sen, we stated that “[i]n determining whether a bill includes more than one subject, both the constitutional provision and the statute under consideration are to be liberally construed in favor of constitutionality.” Id. at 600 . The majority’s interpretation of the Unity-in-Subject Clause is inconsistent with both the holding and language of Jessen and with the policy concerns underlying the proscription of senatorial eligibility for civil offices for which the level of remuneration has been increased. At least one commentator has suggested that an appropriations rider such as the one involved herein does not run afoul of article III, § 18 of our State Constitution. See TEX. CONST, art. Ill, § 18, interp. commentary (Vernon 1984). The majority’s opinion simply fails to explain why it does not apply the rule of Jessen to the statutory provision in question.

I would deny this writ of mandamus.

CAMPBELL and SPEARS, JJ., join in this dissent.