Wentworth v. Meyer

CORNYN, Justice,

concurring.

I agree that mandamus should issue in this case, but for reasons in addition to those expressed in the plurality’s opinion. Accordingly, I write separately to state and explain those reasons. Further, I find it necessary to write to point out the erroneous factual assumptions 1 upon which the opinions of JUSTICES GONZALEZ, MAU-ZY, DOGGETT, and GAMMAGE rely. Those errors of historical fact lead them to the unjustifiable conclusion that today’s ruling somehow conflicts with our recent decision in Dawkins v. Meyer, 825 S.W.2d 444 (Tex.1992).

I.

JUSTICES GONZALEZ, MAUZY, DOG-GETT, and GAMMAGE 2 variously insist that the court’s decision today conflicts with Dawkins , or alternatively, that we *777 consciously avoided an opportunity to address the issues raised in this proceeding in that case. Neither contention is true. Not even Intervenor Carlos Higgins, Relator Wentworth’s opponent for the state senate, urges us to overrule Dawkins, 3 That is for the simple reason that the issues of resignation and equal protection were not timely raised in Dawkins , but rather were first mentioned during the court’s questions during oral arguments in that case, and then in JUSTICE GONZALEZ'S dissenting opinion on February 25, 1992. 4 The fact that Dawkins did not timely raise these issues is clear from the court’s response to JUSTICE GONZALEZ’S opinion in which he urged that Lee v. Daniels, 377 S.W.2d 618 (Tex.1964), and Kirk v. Gordon, 376 S.W.2d 560 (Tex.1964) be overruled. We (including JUSTICE DOGGETT) pointed out that Dawkins had neither resigned nor challenged article III, section 19 of the Texas Constitution on equal protection grounds:

JUSTICE GONZALEZ’S dissent speculates how we might have answered contentions that Dawkins has not made arising under the United States Constitution; but these are only strawmen which he raises and then proceeds to knock down. Similarly, JUSTICE GONZALEZ’S arguments as to how we would have decided this case had Dawkins resigned her position on the MHMR board are only conjecture because that question is not before us.

Dawkins, 825 S.W.2d at 446 n. 3 (emphasis in original).

The facts are these: On February 3, 1992, Dawkins filed a Petition for Writ of Mandamus in this court making no mention of resignation. Oral arguments were heard on February 11th, and the court’s judgment and opinions were announced on February 25th. On February 27th, apparently in response to the suggestion in JUSTICE GONZALEZ’S dissenting opinion that Lee and Kirk should be overruled, 5 Daw-kins resigned as a director of the Texas Department of Mental Health and Mental Retardation, effective December 31, 1992. The next day, February 28th, she filed both a Motion to Amend her Petition for Writ of Mandamus and a Motion for Rehearing, challenging for the first time the vitality of Lee and Kirk . Early voting was already underway, having begun on February 19th; in-person primary voting was conducted on March 10th. Ultimately, Dawkins, whose name had not been removed from the primary ballot, was defeated, mooting the resignation issue. The court formally acted on her Motion to Amend her Petition for Writ of Mandamus and a Motion for Rehearing, overruling both, on April 1st.

The facts thus show, contrary to the assertions of JUSTICES GONZALEZ, MAUZY, and DOGGETT that the effect of a resignation on an officeholder’s eligibility to run for the legislature was neither timely raised, nor decided, in Dawkins . Daw-kins did not tender her resignation until two days after we rendered our decision; she then asked us to reconsider her case based on changed circumstances. We eventually denied that Motion because it was rendered moot, but there are other *778 reasons why the issue of resignation cannot be considered timely when raised for the first time on motion for rehearing.

First, a motion for rehearing is routinely denied, or even expressly disallowed, in cases involving elections because we consider time to be of the essence. See Terrazas v. Ramirez, 829 S.W.2d 712 (Tex.1992); Texas Democratic Executive Comm. v. Rains, 756 S.W.2d 306 (Tex.1988); Whitehead v. Julian, 476 S.W.2d 844 (Tex.1972); Spears v. Davis, 398 S.W.2d 921 (Tex.1966). Second, the sole purpose of a motion for rehearing is to provide the court an opportunity to correct any errors on issues already presented. See Dewey v. American Nat’l Bank, 382 S.W.2d 524 (Tex.Civ.App.—Amarillo, writ ref’d n.r.e. 1964), cert. denied, 382 U.S. 821 , 86 S.Ct. 49 , 15 L.Ed.2d 67 (1965). A motion for rehearing does not afford a litigant an opportunity to raise new issues, especially after the case has been briefed, argued, and decided on other grounds. See Aviation Office of Am. v. Alexander & Alexander of Tex., Inc., 751 S.W.2d 179 (Tex.1988); E.F. Hutton & Co. v. Youngblood, 741 S.W.2d 363 (Tex.1987); Morrison v. Chan, 699 S.W.2d 205 (Tex.1985); Austin Co. v. Vaughn Bldg. Corp., 643 S.W.2d 113 (1982). Therefore, as the preceding statement of facts and authorities demonstrate, we did not “reaffirm” Lee and Kirk in Dawkins. See infra at 786 (DOGGETT, J. dissenting); and, Dawkins does not control the issues raised here.

II.

The historical antecedents to article III, section 19 date to an eighteenth century act of the British Parliament prohibiting royal appointees from serving in the House of Commons. Dawkins, 825 S.W.2d at 448 . The framers of the “antigovemment” constitution of 1876 likely shared Parliament’s concern for concentration of governmental power, leading to, among other things, the adoption of article III, section 19. See T.R. FEHRENBACH, LONE STAR: A HISTORY OF TEXAS AND THE TEXANS 435 (Macmillan 1968). That provision was considered a means of mitigating undue influence by the executive upon the legislative branch. Dawkins, 825 S.W.2d at 448 . Yet, when an officeholder resigns before seeking legislative office, it is difficult to discern a rational purpose for the disabling effect of article III, section 19. Certainly, it does not appear to serve the purpose intended by the framers: to advance the doctrine of separation of powers.

Article III, section 19 provides:

No judge of any court, Secretary of State, Attorney General, clerk of any court of record, or any person holding a lucrative office under the United States, or this State, or any foreign government shall during the term to which he is elected or appointed, be eligible to the Legislature.

Tex. Const, art. Ill, § 19 (emphasis added).

The express language of this provision of the constitution 6 applies only to persons “holding a lucrative office.” And, although Relator Wentworth concedes he once held a lucrative office, at the time he was determined to be disqualified by the Chairman of the Republican Party of Texas, Fred Meyer, he was not holding a lucrative office — he had resigned that office. Thus, regardless of the true meaning of “during the term to which he is elected or appointed,” the constitutional prohibition on its face applies only to “any person holding a lucrative office,” which Went-worth plainly is not. 7

*779 In Lee v. Daniels 8 , a case we overrule today, former Bexar County Commissioner Sam Jorrie was disqualified as a candidate for the state legislature. He sought a writ of mandamus to compel the Chairman of Bexar County Democratic Party, John Daniels, to reinstate him on the ballot. Jorrie argued that article III, section 19 of the constitution did not make him ineligible because he had resigned the office of county commissioner, and thus no longer was “holding a lucrative office.” 377 S.W.2d at 619 . That argument was rejected by a divided supreme court.

It is significant to note that in denying Jorrie a place on the ballot, the court relied on no Texas case, statute, or constitutional provision, other than Kirk , which concerned a district attorney who had not yet resigned, in holding that “it is the term that controls.” Id. Contrary to the unsubstantiated assertion by the court in Lee that article III, section 19 is clear and unambiguous, it is demonstrably susceptible to two distinctly different meanings: it could mean that only current officeholders are ineligible for the legislature during their term of office; or it could mean that both current and past officeholders are ineligible for the duration of their terms. Under one construction, then, article III, section 19 does not bar Relator Wentworth’s candidacy for the state senate; under the second construction, article III, section 19, applied to the facts of this case, bars Went-worth’s candidacy.

Under circumstances like these, however, there can be no doubt that we are obligated to choose a construction of article III, section 19 that favors eligibility: first, because we have ourselves acknowledged a strict rule of construction in candidate-qualification cases, Brown v. Meyer, 787 S.W.2d 42 (Tex.1990); and second, because the alternative construction fails to serve the purpose of the framers of our constitution and lacks a rational basis. 9 For these reasons, I conclude that Relator Went-worth is not disqualified by his previous office of regent to be a candidate for the state senate. 10

Accordingly, I concur in the court’s judgment, conditionally granting the writ of mandamus.

HECHT, J., joins in this concurring opinion.

. Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence.

John Adams, Argument in Defense of the British Soldiers in the Boston Massacre Trials (Decem-her 1770) reprinted in THE TRIAL OF THE BRITISH SOLDIERS 101 (Mnemosyne 1969).

. JUSTICE GAMMAGE claims that the plurality opinion "largely ignor[es]" Dawkins , and then proceeds to state that, in his opinion, Relator Wentworth’s office as regent was not "lucrative." He does so despite the fact that the parties have not even disputed this issue, no doubt because this argument is foreclosed by our decision in Dawkins .

.At the oral argument of this case, the following colloquy occurred:

The Court: Has anybody asked us to overrule Dawkins v. Meyer?

Mr. Wiseman (counsel for Mr. Higgins): It has not been asked in this case, your Honor. The Court: Right.

Mr. Wiseman: And in fact, the Relator has specifically indicated in his brief that he does not ask for that.

The Court: And you’re certainly not asking us to do that?

Mr. Wiseman: He’s not asking for such a ruling.

The Court: And you’re not asking us that? Mr. Wiseman: No sir. I do not think that it would be appropriate.

. Id. 825 S.W.2d at 453 (Gonzalez, J., dissenting). During oral argument of Dawkins , on February 11, 1992, the court, on its own initiative, inquired whether Dawkins could remove the constitutional impediment to her candidacy by resigning, to which Dawkins’ counsel replied:

Counsel: May it please the court. The case of Lee v. Daniels by this court, which we think was wrong, held that Ms. Dawkins cannot become eligible by resigning before the end of her term. Her term overlaps by 21 days, the term of the legislature. She would be probably happy to do that, but that is not one of her alternatives, (emphasis added).

. 825 S.W.2d at 451 (Gonzalez, J., dissenting).

. In constitutional construction, “we rely heavily on the literal text.” Edgewood Indep. Sch. Dist. v. Kirby, 777 S.W.2d 391, 394 (Tex.1989).

. Furthermore, regardless of Relator’s resignation of the office of regent, when he was sworn in to his first of three terms as a state representative, he vacated that office by operation of article XVI, section 40 of the Texas Constitution. That provision states in pertinent part:

No one shall hold or exercise at the same time, more than one Civil Office of emolument [inapplicable exceptions omitted].

Tex. Const, art. XVI, § 40.

Article XVI, section 40 has been construed, by this court and others, to mean that as a general rule, when the holder of one office accepts and qualifies for a second, he, by operation of law, is considered to have automatically relinquished the first office. See Keel v. Railroad Comm’n. of Texas, 107 S.W.2d 439, 440 (Tex.Civ.App.—Aus- *779 tin 1937, writ ref'd) (citing Martin v. Grandview Indep. Sch. Dist., 266 S.W. 607, 610 (Tex.Civ.App.—Waco 1924, writ ref'd)); Kugle v. Glen Rose Indep. Sch. Dist., 50 S.W.2d 375, 376 (Tex.Civ.App.—Waco 1932), aff’d, Pruitt v. Glen Rose Indep. Sch. Dist., 126 Tex. 45 , 84 S.W.2d 1004, 1006 (1935); Odem v. Sinton Indep. Sch. Dist., 234 S.W. 1090, 1092 (1921); San Antonio A.P. Ry. Co. v. Blair, 108 Tex. 434 , 196 S.W. 1153, 1183 (1917); Alsup v. Jordan, 69 Tex. 300 , 6 S.W. 831, 832 (1887); State v. Brinkerhoff, 66 Tex. 45, 17 S.W. 109, 110 (1886); see also Frank W. Hubert, Jr., Constitutional Restraints on Dual Officeholding and Dual Employment in Texas— A Proposed Amendment, 43 Tex.L.Rev. 943, 944 (1965) ("When an incumbent is elected or appointed to a second office of profit, he may elect to hold either office, but once he qualifies for the second office, he is deemed to have made his election and the first office is ipso facto vacated.").

Unquestionably, it is our obligation to construe together all constitutional provisions relating to the same subject matter, and, if possible, to give effect to each. See Vinson v. Burgess, 773 S.W.2d 263, 265 (Tex.1989) (citing Collinsworth County v. Allred, 120 Tex. 473 , 40 S.W.2d 13 (1931)). Therefore, Relator not only resigned the office of regent before he was disqualified by Respondent Meyer, by virtue of article XVI, section 40 of our constitution, he vacated that office by operation of law; in either event, he thereafter no longer held the office of regent.

. Reexamination of the rule in Lee is especially appropriate in this case of constitutional construction. See Payne v. Tennessee, — U.S. -, - - -, 111 S.Ct. 2597, 2609-2611 , 115 L.Ed.2d 720 (1991) (observing that reexamination of constitutional decisions is appropriate when "correction through legislative action is practically impossible”); Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 546-547 , 105 S.Ct. 1005, 1015 , 83 L.Ed.2d 1016 (1985).

. I agree with JUSTICE HECHT that we should adopt a reasonable construction of our own constitution in a manner that does not violate the Equal Protection Clause of the federal constitution.

. We need not reach Relator Wentworth’s federal equal protection claims because we find him entitled to the writ under the terms of the Texas Constitution. See Davenport v. Garcia, 834 S.W.2d 4, 25 (1992).