# Wentworth v. Meyer

> Texas Supreme Court · September 16, 1992 · 35 Tex. Sup. Ct. J. 1137

URL: https://www.frixlaw.com/law-library/cases/9768725

## Case

- **Full name:** Jeff WENTWORTH, Relator, v. Fred MEYER, Chairman, State Republican Executive Committee, Respondent
- **Court:** Texas Supreme Court
- **Decided:** September 16, 1992
- **Citations:** 35 Tex. Sup. Ct. J. 1137; 839 S.W.2d 766; 1992 Tex. LEXIS 132; 1992 WL 224595
- **Precedential status:** Published
- **Opinion:** Concurrence by Gammage
- **Judges:** Cook, Gonzalez, Mauzy, Hecht, Gammage, Cornyn, Phillips, Doggett
- **Cited by:** 65 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

*780 GAMMAGE, Justice,
concurring.
I concur in the court’s judgment conditionally issuing the writ of mandamus to certify Wentworth’s name for the ballot. I disagree with the plurality’s rationale for this action, however, because in my view Wentworth never held a “lucrative” office under the Constitution and the prohibition in question never properly applied to him. The plurality needlessly engages in legal gymnastics and stretches mightily to construe “term” of office as being synonymous with “holding” office.
The plurality opinion attempts to avoid the appearance of convoluted reasoning by largely ignoring this court’s own most recent pre cedent— Dawkins v. Meyer, 825 S.W.2d 444 (Tex.1992). The opinion cites Dawkins for the “purpose” of the provision, and purports to distinguish it by the irrelevant fact that Dawkins had not resigned when she first filed her petition, but fails to discuss its fundamental inconsistency with today’s decision. See 839 S.W.2d at 767, 768. The opinion hinges its discussion on irrelevant “interim” events occurring since Wentworth’s resignation from the Board, not on law or lucid and reasonably-defined constitutional terminology.
As a member of the Board of Regents of the Texas State University System, Went-worth was entitled to receive per diem compensation 1 of thirty dollars for meetings attended. During the fourteen months he held the position, he attended eight Board meetings for which he was compensated a total of $240.00 in per diem.
As in Dawkins , Wentworth’s Board position was unsalaried 2 and did not involve actual day-to-day control. The Board met only a few times per year. Wentworth was a citizen-volunteer contributing service on a part-time basis, entitling him to only the specified nominal per diem and partial reimbursement of expenses. Wentworth did not hold a “lucrative” office within the meaning of the constitutional provision. See Dawkins v. Meyer, 825 S.W.2d 444, 455-56 (Tex.1992) (Gammage, J., dissenting).
In my Dawkins dissent I suggested that Lee v. Daniels, 377 S.W.2d 618 (Tex.1964), and Kirk v. Gordon, 376 S.W.2d 560 (Tex.1964), should be overruled. Upon further reflection, I generally agree with the reasoning of Part I-A of Chief Justice Phillips’s dissent, and with similar reasoning in Justice Doggett’s dissent. The constitutional convention that produced article III, section 19, changed the provision from “while a member” to the language “during the term for which” elected or appointed. This reflects a clear intent to expand the scope of disqualification and make the prohibition more restrictive. We may subjectively perceive this as an unreasonable prohibition, but it is nonetheless an unequivocal one.
I likewise generally agree with part I-B of Chief Justice Phillips’s dissent, and similar reasoning in Justice Doggett’s dissent, that whether the overlap is “de minimis” is immaterial. The voters specifically amended article III, section 18, to allow for a de minimis overlap in terms. The people did not amend section 19, which still contains no de minimis exception.
I nevertheless concur in the judgment of the plurality because Wentworth is clearly not barred by the provision: as a member of the Board he occupied no “lucrative” office within the meaning of the constitutional prohibition. It is unnecessary to reach equal protection or other issues.
I concur in the court’s judgment.
. Respondents contend that Wentworth “stipulated” the position was "lucrative.” Parties may stipulate facts, but not legal conclusions. Reynolds v. McMan Oil & Gas Co., 11 S.W.2d 778, 785-86 (Tex.Comm’n App.1928, holding approved), rehearing denied, 14 S.W.2d 819 (Tex.Comm’n App.1929). Wentworth did not contest the facts that he was statutorily entitled to $30 per diem for attendance, and that in the fourteen months he served as a board member he attended a total of 8 meetings for which he received a total of $240.
. Wentworth was statutorily entitled to "per diem payment as provided by the legislature" and to "be reimbursed for the actual expenses incurred by” him as a Board member. Tex.Educ. Code Ann. § 95.04 (1991).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9768725. Public record. Not legal advice.