                              October 2, 1973


The Honorable Joe Resweber                  Opinion No. H-   117
County Attorney
Harris County Courthouse                    Re:   Constitutionality of the
Houston. Texas 77002                              Campaign Reporting and
                                                  Disclosure Act of 1973
Dear Mr.   Resweber:

       The Campaign Reporting and Disclosure Act of 1973 (Laws 1973,
63rd Leg., ch. ,423. p. 1101)was adopted by the 63rd Legislature for
the stated purpose of “regulating campaign contributions and expend-
itures and political advertising. ” The Act contains thirteen substantive
sections which amend and add to Chapter 14 of the Texas Election Code.

     Among the many laudable features of the 1973 Act, it makes the
appointment of a campaign manager mandatory and extends that require-
ment to elections involving “measures” and to municipal elections (§ 3,
amending Article 14. 02, Election Code); it extends its requirements to
“political committees” as well as candidates; it tightens the restrictions
on campaign expenditures, both as to amount and manner of expenditure.
(Sections 4 and 5, amending Articles 14.‘03 and 14. 04, of the Code); it
strengthens the penalties, both civil and criminal, and authorizes injunc-
tive process upon application byany citizen to avoid violations. (Sections
6,~ 7 and 12. amending Article 14.05 and 14.06 and adding a new Article
14.14); criminal penalties are added to those which may be imposed upon
a corporation for making an illegal contribution (§ 8. amending Article
14. 07); the requirements for records and sworn statements are greatly
expanded and strengthened (§ 9; amending Article 14.08); the penalties
for violating regulations concerni= political advertising are increased
from a maximum fine of $100 to a possibility of a fine of $5,000 and/or
imprisonment for up to 5 years.    (Section 10, amending Article 14.10).

    You have asked about the constitutionality of the Election Commission
created by $11 of the Act (to be codified as Article 14.13 of the Code).

    The Act creates a County Election Commission in each county of the
State composed of the county chairmen of two political parties and the
senior district judge in point of service. The State Election Commission,
also created by the Act, consists of four political party officials, the
Chief Justice of the Supreme Court, the Presiding Judge of the Court of
                                 p. 561
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The Honorable Joe Resweber.    page 2 (H-117)




Criminal Appeals, one Justice of a Court of Civil Appeals,    one district
judge and the Secretary of State.

    The State and County Commissions have identical duties in regard to
their respective jurisdictions.  These duties are (1) to inspect, at their
discretion or on request, any campaign contribution or expenditure state-
ment; (2) to immediately notify any candidate or campaign manager if it
appears he has failed to comply with the filing requirements     of the Act,
and (3) if a candidate or committee fails to comply with the provisions of
the Act after notice, to inform the appropriate district attorney of the
violation so that appropriate legal action may be taken.

    Members of each commirsion are required to determine whether
there has been a violation of the Code, to notify “any candidate or cam-
paign manager” of the violation and, if he then fails to comply with the
Code, “the commission shall inform the county or district attorney [ in
the case of the County Commission or “the appropriate district attorney”
in the case of the State Commission] of the violation so that appropriate
legal action may be taken. ” Thus, in effect, the Commission and its
members may be the complaining party in a court action growing out of
an apparent violation.

   The Election Code, in Article 14.05. as amended, provides for civil
remedies.  Article 14. 06, also amended, provides for criminal penalties.

           “Any candidate, campaign manager, assistant campaign
       manager, or other pcrron. who makes an unlawful campaign
       contribution or expenditure in violation of this chapter shall
       be fined not less than one hundred dollars nor more than five
       thousand dollars, or be imprisoned in the penitentiary not
       less than one nor mare than five years, or be both so fined
       and imprisoned. ”

   Similar penalties attend a wrongful donation by a corporation under
amended Article 14.07.    A newly added Article 14.14 authorizes district
courts to issue injunctions to enforce the provisions of the Code.

    Apart from duties as memberm of the commissions,        it would be the
duty of judges, whether civil or ctfminal , whether in the trial court or
an appellate court, to impartially consider the evidence and law presented
in their courts on matters of criminal guilt or civil ltability.  It would be
a breach of that duty for them to pre-judge a case, and particularly to do
so officially.
                                  p. 562

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The Honorable Joe Resweber,     page   3   (H-117)




    Since the Chief Justice of the Supreme Court and the Preriding Judge
of the Court of Criminal Appeals are required by the statute to be members
of the State Election Commission,    no civil or criminal legal action8 initiated
by a district attorney pursuant to the State Election Commission’s     advice
could travel the full appellate route of this State’s judicial process without
reaching a court upon which sat a member who had already officially con-
sidered and judged the factual and legal basis for the alleged violation.

    We think membership by such judicial officers on the Commission would
seriously impair the efficient discharge of their constitutional duties and of
the constitutional duties of the Courts on which they sit. The judges would
recuse themrelves and deprive the courts of their presiding officers.    The
number of judges available would be less than that contemplated by the Con-
stitution.

    In Re Houee Bill No. 537, 256 S. W. 573 (Tex. 1923) concerned a similar
situation. There the Legislature had attempted to impose upon the Chief
Justice and Associate Justices of the Supreme Court, as individuals, the duty
to control certain facets of district court litigation. The Supreme Court
stated that such statutory duty would conflict with the constitutional duties of
the Justices, would interfere with their efficient performance thereof. and
therefore was void. It said at page 574:

          “It is plainly beyond the power of the Legislature
      to impose a service on the Justices which would seriously
      impair the efficient discharge of the constitutional duties
      of the court and of its Justices. ‘I

    This decision, we believe, is grounded upon the doctrine of ‘incompatibility,
recognized again by the Supreme Court in Jones v. Alexander, 59 S. W. td 1060
(Tex. 1933) where, in deciding that membership by judges on Juvenile Boards
was permissible,   it said that the statute requiring such membership could not
be condemned “unless . . . the additional duties imposed are incompatible with
their other duties conferred upon them by law . . . . “( 595 S. W. 2d at 1082)

    The common law doctrine of incompatibility protects the basic integrity of
our institutions, cf. Thomas v. Abernathy  County Line Independent School
District, 290 S. W. 152 (Tex. Comm. 1927). and we think it must be considered




                                  p. 563
The Honorable Joe Resweber,    page 4    (H-117)




infused into the provisions of the Constitution conferring powers and
duties upon offices and officers.  Article 16, g 48. Texas Constitution:
Great Southern Life Insurance Co. v. City of Austin, 243 S. W. 770 (Tex.
1922); cf. Dickson v. Strickland, 265 S. W. 1012 (Tex. 1924). Because of
it, we think the statutory requirement that judges serve on the State
Election Commission is invalid, and because we are unable to say that
the Legislature would have wished the Commission to function without
their participation, we must conclude that the portion of the Act creating
the State Election Commission is void.

    The same considerations lead us to believe that the County Election
Commissions are also,invalidly constituted and that the portion of the Act
creating them is void. District judges, no less than appellate judges,
~IZI t preserve their judicial integrity, and in many of our counties any
case involving a violation of the Campaign Disclosure Act would necessarily
be presented in the court of the district judge who sits upon the County
Election Commission.

    The provision of the Act creating the Commissions are severable. and
our opinion finding them unconstitutional in no way affects the validity of
any other portion of the Act.

                          SUMMARY

           Those portions of the Campaign Reporting and Disclosure
       Act of 1973 establishing State and County Election Commissions
       are unconstitutional, but the validity of other portions of the
       Act is not affected.




                                        Attorney General of Texas




                                  p. 564
The Honorable Joe Resweber.   page 5        (H-117)




DAVID M. KENDALL,     Chairman
Opinion Committee




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