                          September       24,   1975



The Honorable Oscar B. McInnis                         Opinion     No.   H- 698
Criminal District Attorney
Hidalgo County                                         Re: Whether a mayor may serve
Edinburg, Texas                                        as county chairman of a political
                                                       executive committee.

Dear Mr.   McInnis:

        You have requested our opinion regarding            whether a mayor       may serve
as county chairman of a political party executive           committee.

       Section, 3 of article   3.04   of the Texas      Election     Code provides   as follows:

                No one shall act as chairman or as member of any
                district, county, or city executive committee    of a
                political party who is not a qualified voter,  or who
                is a candidate for public offic:e, or who holds any
                office of profit or trust, either under the United
                States or this state, or any city or town in this state.

In Attorney General Opinion M-1121 (1972), ,this ‘Office~held that section 3
violates article 1, section 3 of the Texas Constitution and the Fourteenth
Amendment     to the United States Constitution;   The Attorney General reached
this conclusion because he was:

                unable to discern any compelling     state interest which
                is served by making the statute applicable to the
                chairman and members     of a district,   county, or city
                executive committee   of a political party and not applicable
                to the chairman or members      of a State executive committee
                or any other officer of a political party.




                                      p. 3025
The Honorable    Oscar   B. McInnis    - page 2 (H-698)




              Opinion M-1121 applied the “compelling         state interest” test to
determine the validity of section 3. The United States Supreme Court has
held, however,     that the “compelling     state interest” test is applicable only
when “fundamental      rights” are involved.      When non-fundamental       rights are
at issue,   the test is “whether the challenged state action furthers a legiti-
mate state purpose or interest, ” or whether the statute bears a “rational
relation to a legitimate     state interest. ‘I San Antonio Independent School
District v. Rodriguez.,     411 U.S. 1 (1973); Starns v. Malkerson,        326 F. Supp.
234 (1970).    See also Kramer v. Union Free School District No. 15, 395
U.S. 621, 627-28     (1969); McGowan V. Maryland,          366 U.S. 420, 425 (1961).


        The Supreme Court has held that the right to candidacy is not a funda-
mental right.   Bullock V. Carter,   405 U.S. 139,142-43   (1972). See also
Adams v. Askew,     511 F. 2d 700, 703 (5th Cir., 1975),  We believe that the
non-fundamental   status of the right to candidacy is applicable to the right to
act as a chairman or member of a political party executive committee.

          We believe that it was reasonable     for the Legislature,   for purposes
of proscribing     the holding of certain political positions by public officers,    to
draw a distinction between, on the one hand, membership            on a State executive
committee,     and, on the other, membership       on a district,  county or city
executive committee.        The Legislature   might reasonably    have concluded that
political affiliations   by public officers on a local level could result in a sub-
stantially greater potential for abuse of those public offices than would such
political affiliations   on a statewide level.    We believe that the Legislature
has a legitimate interest in maintaining the integrity of public institutions,
and that the means chosen in this instance bears a rational relation to that
purpose.

         In Broadrick v. Oklahoma,    413 U.S. 601 (1973), the Supreme Court
upheld an Oklahoma statute which, inter alia, prohibited only classified    state
employees    from being members    of a national, state or local committee of a
political party.   The Court declared that:




                                   p. 3026
The Honorable     Oscar   B. McInnis   - page 3 (H-698)




                 . . . the legislature   must have some leeway in
                 determining     which of its employment     positions
                 require restrictions      on partisan political activities
                 and which may be left unregulated.       . . .. Ahd a’state
                 can hardly be faulted for attempting to limit the
                 positions upon which such restrictions        are placed.
                 413 U.S.    at  607,  fn.  5.

It is therefore  our opinion that section 3 of article 3.04 bears a rational
relation to a legitimate   state interest, and, as such, does not violate the
Equal Protection    Clause of the Fourteenth Amendment.

              Opinion M-1121 also held section 3 of article 3.04 to be in violation
of article   1 section 3 of the Texas Constitution, which provides:

                 All free men, when they form a social compact,    have
                 equal rights, and no man, or set of men, is entitled
                 to exclusive  separate public emoluments, or privileges,
                 but in consideration  of public services.

The basis of this conclusion was the Supreme Court’s decision in Burroughs
v. Lw      181 S. W. 2d 570 (Tex. Sup., 1944) and the Court of Criminal Appeals
opinion in Rucker v. State, 342 S. W. 2d 325 (Tex. Crim. App. : 1961), neither of
which articulate any standard different from those imposed by the federal Con-
stitution.  In Burroughs v. Lyles, B,      the Supreme Court held that:

                  . . . the Legislature    has the power to adopt any classifi-
                  cation it sees fit, provided there is a reasonable    basis
                  for such classification.     181 S. W. 2d. at 574.

Since, as we have indicated,    we believe that there is a reasonable   basis for
the classification   provided by section 3 of article 3.04, it is our opinion that
the statute does not contravene article 1, section 3 of the Texas Constitution.
Accordingly,     a mayor may not act as county chairman of the executive committee
of a political party.   Attorney General Opinion ~MYl121-,is oeerruled, t,o the
extent of conflict with this Opinion.




                                       p. 3027
The Honorable   Oscar     B.   McInnis    - page 4 (H-698)




                                   SUMMARY

                A mayor may not serve          as county chairman of
                the executive committee         of a political party.

                                                     Very    truly yours,




                                                     Attorney    General    of Texas




                     L,    First   Assistant



C. ROBERT HEATH,          Chairman
Opinion Committee

jwb




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