Hon. Robert S. Calvert
Comptroller   of Public Accounts
Austin, Texas                              Opinion No. S-139

                                           Re:   Termination   of membership    of
                                                 legislators on the Legislative
                                                 Budget Board, etc., upon failure
                                                 to secure nomination or election
Dear Mr.      Calvert:                           for a succeeding term.

                  Your request    for an opinion reads   as follows:

              ‘“I wish ‘to request your interpretation    of House BiT&
       No. 793 as passed by the 53rd Legislature       (Chapter 377,
       page 915, General and Special Laws, Regular Session, 1953)
      as.to which members      of the Legislative  Budget Board and
      the Legislative   Council, or any other interim committees,
      are included.

               ‘$As you know, six members      of the Budget Board are
      members     thereof in an ‘ex officio’ manner, because they
      hold certain other positions.     Four members     are appointed:
      two Senators and two Representatives.         Two members    of the
      Legislative   Council are members      thereof b?cause of the
      same ‘ex officio” reason, and fifteen are appointed:      five
      Senators and, ten Representatives.      It is my thought that the
      wording of Section 1 of House Bill No. 793 would mean that
      the provisions    of said bill would apply only to the appointed
      members     of the Board and the Council, or any other interim
      committees.

              ““I shall also appreciate your opinion as to just what
      is meant by the word ‘nomination’ in Section l(c), ,particularly
      as to when such failure of nomination would become effective.”

                  Section   1 of Chapter 377, Acts of the 53rd Legislature,  Regu-
lar Session     (codified   as Article 5429e, Vernon”s Civil Statutes), provides:
Hon. Robert   S. Calvert,   page 2 (S-139)




               ““Section 1. That the membership      of any duly ap-
      pointed Senator or Representative      on the Legislative
      Budget Board or on the Legislative      Council, or on any
      other interim Committee,      shall, on the following contiq-
       gencies, terminate,   and the vacancy created thereby
      shall be immediately    filled by appointment for the un-
      expired term inthesame       manner as other appointments
      to the Legislative   Budget Board and the Legislative
       Council are made:

               ““(a) Resignation   of such membership;

              “‘(b) Cessation of membership’in      the Legislature
      for death or any reason:

              “(c) Failure of such member to secure nomina-
      tion or election to membership  in the Legislature for the
      next succeeding term. m

              The emergency     clause of this act recites ” the importance
of reqmring that Members     of the Legislative  Budget Board and the Leg-
islative Council, or any other interim Committee,      be Members   of the
Legislature  during the term of their appointment,    and also for the SUC-
ceeding term of the Legislature.”

                 We agree with you that this statute does not appiyto uex-
officio” members      of these bodies.    The statute refers to “appointed”
members     and requires that the vacancy be filled by appointment.        Where
a Senator or Representative      holds a place on one of these bodies because
he also holds some other position, such as the chairmanship         of one of
the standing committees,      he is not an appointive member but is a member
by virtue of the other position.       The place can be held only by the chair-
man of that particular committee,        and so long as he continues to be the
chairman there is no vacancy.        Of course, an ex-officio   membership    ceases
whenever the person ceases to hold the position which gives rise to the
membership,      and the same contingency which under Chapter 377 would
cause a vacancy in an appointive membership          might also cause a vacancy
in an ex-officio   membership     (for example,   cessation  of membership   in ’
the i~g~$l%&),       but this would come about because of its ex-officio     na-
ture and not because of the provisions       of Chapter 377,

                 Your second question on termination     of membership  under
subdivision    (c) raises a number of problems.     Unless it has been termi-
nated earlier,    we are of the opinion that an appointive membership    is ter-
minated if the member      is not again elected to either the House or the
Senate at the general election for the year in which his term of office as
c   -




        Hon. Robert   S. Calvert,   Page 3 (S-139)




        legislator  is ending, regardless    of whether he was a candidate for the
        Legislature   that year.   The statute was intended to cut off appointive
        memberships     of all persons who would not be members       of the Legis-
        lafure for the succeeding term, and whether the person had or had not
        sought election to the succeeding term is unimportant.        The results of
        the election are officially ascertained    upon canvass of the returns, and
        the date of termination    is the date on which the official canvass reveals
        the failure to secure election.     Cf. Tom v. Klepper, 172 S.W. 721 (Tex.
        Civ.App. 1915, error ref.); Leslie v. Griffin, 25 S,W.2d 820 (Tex.Com.
        App. 1930); Ex parte Sanders, 147 Tex. 248, 215 S.W.2d 325 (1948).

                        Subsectioii (c) provides for an earlier termination  upon
        failure to secure nomination to membership       in the Legislature for the
        next succeeding term,      To ascertain the meaning and operation of this
        provision,  it is necessary   to consider the relationship  between nom&a-
        tion and election.

                         Thereare   four different methods by which a person may
        be elected to the Legislature     at a general election:  (1) as the nominee
        of a political party through nomination at a primary election;       (2) as
        the nominee of a political party through nomination at a party conven-
        tion; (3) as an independent or nonpartisan      candidate nominated in ac-
        cordance with Section 227 of the Election Code; and (4) as a write-in
        candidate.    It is seen that a person may be elected without having sa-
        cured a “nomination.”

                      The appointive legislative  memberships    on the Budget
        Board, Legislative   Council, and interim committees   are presently com-
        posed entirely of persons who were elected as party nominees named
        at a primary election by a political party which is holding primaries
        t&is year.  We shall discuss this question only as it applies to present
        memberships.     To attempt to set out the applicable rules for all possible
        situations would lengthen the opinion unduly and would serve no useful
        purpose at this time.

                        The statute presants no difficulty with regard to a member
        of the Legislature    who has sought renomination     or nomination to the
        other branch of the Legislature     in a party primary.    Clearly, we think,
        he has failed to secure nomination within the meaning of subdivision        (c)
        if he is defeated at the first or second primary.      This portion of the stat-
        ute would be rendered entirely meaninglpss       if it were held that mere
        possibility  of election by some other method than nomination at the pri-
        mary removed him from its operation.         The date of termination   is the
        date of the official canvass of the election returns by the party executive
        committee    showing that he has been defeated.      See Sections 203, 205, and
        214, Texas Election Code.
                                                                                         -   . .




Hon. Rob&t     S, Calvert,   page 4 (S-139)




                A more serious question is presented with regdrd to those
members     who did not seek nomination for a place in the Legislature           for
the succeeding term.      In view of the fact that election may result without
nomination at a party primary and the further fact that a person is not
obliged to resort to this method of election merely because he had fos-
merly done so, it might be argued that the membership            of such a person
would not terminate until the possibility       of his election to a succeeding
term had been foreclosed       at the general election.     However, we think
the statute should be construed in the light of the well-known         political
history of the State and the prevailing method of election through party
nomination.    Ordinarily   it can be assumed that a persoh$formerly          elected
as a party nominee who does not again seek nomination by the-party does
not intend to be a candidate at the general election and, further, that he
will not be elected to a succeeding term.         We believe the legislative     in-
tent was that a person who was electdd as a party nominee and who has
not again sought party nomination is to be considered as having failed to
secure nomination when it is officially       shown that he will not be the party
nominee, unless he has made it known that he will seek re-election              in
some other manner.       Otherwise,    the likelihood of his either seeking or
attaining election through some other method is so remote that the Leg-
islature could hardly have intended to permit his appointive memberships
to continue on the slight chance that he would later become a candidate
at the general election.

                As to the date of termination,  we think it is to be determined
by the same rule as for defeated candidates for nomination,        that is, when
the canvass of the primary election returns shows that the member will
not be the party nomineea     We realize that it could be forcefully    contended
that the Legislature   would have provided for termination      of membership
on these bodies as soon as it became apparent that the individual was not
 seeking nomination if the statute was intended to apply’to members         who
fa,iled to seek nomination as well as to those who sought it and were de-
feated.   The answer to this is that the date of termination was a matter
for decision by the Legislature    and the date it has fixed is based upon
failure to :secure nomination.    The fact that the Legislature    might have
had good reason to provide an earlier date in these instances will not pre-
vent the operative force of the date It has provided.

                We have said that the membership        terminates   upon canvass
of the returns of the election.    Unquestionably,     a vacancy in the position
occurs in the sense that the app&ting        authority may proceed immediately
to fill the vacancy by appointing a successor.        The language of Chapter 377
indicates a legislative   intent to bring about an autombtic,      complete termina-
tion of membership     upon the happening of either of the stated contingencies.
It is our opinion that the member’s      right to serv@ terminates      immediately
and he may not continue to serve until a successor          is appdfnted.  In reaching
Hon. Robert     S. Calve&    page 5 (S-139)




this conclusion we have given diligent consideration           to Article XVI, Sec-
tion 17 of the Texas Constitution and Article 18 of the Revised Civil Stat-
utes, as well as to the rule concerning holding over in office as announced
in Walker v. ,Hopping, 226 S.W. 146 (Tex.Civ.App.           1920).  It is extremely
doubtful whether the word ““officers w in Section 17 of Article XVI includes
memberships     of this nature.    Assuming     that Article 18 of the Revised
Civil Statutes would apply to vacancies        arising during the term of these
positions in the absence of Chapter 377, the condlicting provision of Chap-
ter 377 would nevertheless      prevail as a later enactment making an excep-
tion to the general rule stated in Article 18. Even if these memberships
come within the general constitutional        and statutory rules, these rules
have no application where a vacancy arises during the term of office be-
cause of disqualification   or ineligibility    of the holder to continue in office.
Under Chapter 377, one of the conditions for continued appointive member-
ship on these bodies is the combinationzo% present membership               in the Leg-
islature and prospective    membership       during the succeeding term.        It is
clea’r to us that a successor    appointed from among the other members               of
the Legislature   would not be qualified to serve if he likewise had failed to
secure nomination or election,       Thus, it appears to us that we must treat
the failure to secure nomination or election as a ground for disqualification
which causes a forfeiture     of membership,       removing the member from the
orbit of the rules for holding over until a successor          is appointed.


                                     SUMMARY

                Chapter 377, Acts 53rd Leg., R.S., 1953 (Article 5429e,
       V.C.S.),  whieb provides for termination    o% membership     of ““duly
       appointed” Senators and Representatixreg     on the Legis,lative
       Budget Board, Legislative   Council, and othel interim commit-
       tees upon certain contingencies,  applies to appointive member-
       ships only and does not apply to ex-officio   memberships.

                Within the meaning of this statute,  a Senator or Repre-
       sentative who was previously   elected as a party nominee has
       failed to secure ‘“nominationw to a succeeding term if he will
       not be the party nominee, regardless     of whether he was or was
       not a candidate for the nomination.   His appointive membership
        on the Budget Board, etc., terminates    on the date the official
        canvass of the primary election returns shows that he will not
        be the nominee.

APPROVED:                                 Yours   very   truly,

John Davenport                            JOHN BEN SHEPPERD
Reviewer                                  Attorney General of Texas

John Atchison
Reviewer

Robert S. Trotti
First Assistant
