       *      I




                                             The Attorney              General of Texas
                                                               December 31, 1982
MARK WHITE
Attorney General


                                            Honorable Gibson D. (Gib) Lewis            opinion No.Mw-572
Supreme   Court Building
                                            Chairman
P. 0. aox 12546
Austin. TX. 76711. 2546
                                            Comittee on Inter-Governmental Affairs     Re: Constr"ction of article
512/475-2501                                Texas House of Representatives             988, V.T.C.S., which limits
Telex    910/674.1367                       P. 0. Box 2910                             employment of city council
Telecopier      5121475-0266                Austin, Texas   78769                      members

1607 Main St., Suite 1400
                                            Dear Representative Lewis:
Dallas, TX. 75201-4709
2141742-8944                                     You have asked four questions concerning the first sentence of
                                            article 988, V.T.C.S.    Prior to amendment in 1981, Acts 1981,
                                            Sixty-seventh Legislature, chapter 527, section 2, at 2230, this
4824 Alberta          Ave., Suite     ia0
El Paso, TX.          79905.2793
                                            provision generally prohibited members of city councils from holding
9151533-3464                                "any other employment or office" in their respective cities. It now
                                            reads:
1220 Dallas Ave., Suite              202
                                                     No member of the city council shall hold any other
Houston,    TX. 770026966
71316500566
                                                     employment or office under s      city government
                                                     while that member is a member of x    city council
                                                     Or  appointed board or conrmission thereunder,
606 Broadway.            Suite 312                   unless herein otherwise provided.        (Emphasis
Lubbock.     TX.       79401.3479
                                                     added).
6061747.5236

                                                Your questions are essentially a* follows:
4309 N. Tenth. Suite B
McAlle”,     TX. 76501-1685                           1.   Is this amended provision constitutional?
5121682-4547

                                                      2.   If it is:
200 Main Plaza, Suite 400
San Antonio,  TX. 78205-2797                               (a) Does it apply to both general law and home
512/225-4191                                               rule municipalities?

An Equal          Opportunity/                             (b) If it applies to a particular municipality
Affirmative         Action     Employer                    and to a councilperson serving on its effective
                                                           date,   does   the  position held     by   such
                                                           councilperson become vacant, as a matter of
                                                           law, upon the effective date? If not, what is
                                                           the effect of such statute upon such position
                                                           and the service of the person holding it?




                                                                    p. 2107
Honorable Gibson D. (Gib) Lewis - Page 2   (Mw-572)




             (c) Depending upon the answer to (b), are
             actions taken and/or votes cast by such
             councilperson after the effective date of the
             provision valid, void or voidable?

     You have not cited the constitutional provision that you think
might be offended by the prohibition in question.        The equal
protection clauses of the federal and state constitutions, United
States Constitution amendment 14; Texas Constitution article I,
section 3, appear to be the most likely candidates, however, and we
will consider the application of these provisions.

     For years courts dealt with equal protection challenges to state
legislation by utiliaing a two-tiered analytical model. Under this
model, if a challenged statute burdens an inherently "suspect" class
of persons or impinges upon a "fundamental" constitutional right, it
will be struck down unless the government can demonstrate that the law
is justified by some compelling need. If, on the other hand, no
"suspect" class or "fundamental" right is involved, the statute will
be upheld unless the contestant can show that the legislative
classification bears no rational relationship to a legitimate state
objective.     See, e.g., Vance v. Bradley, 440 U.S. 93 (1979); San
Antonio Independent School District V. Rodriguez, 411 U.S. 1 (1973);
Milligan V. State, 554 S.W.2d 192 (Tex. Grim. App. 1977).

     Although the United States Supreme Court may at times apply the
two-tiered model, see Clement6 V. Fashing. 50 U.S.L.W. 4869 (June 25,
1982) (plurality -*ion),      it also' on occasion utilizes a more
flexible, three-tiered approach. Under this approach, an intermediate
test, which asks whether the challenged legislation "further[s] a
substantial interest of the State," Plyler v. Doe, 50 U.S.L.W. 4650,
4654 (June 15. 1982). will be utilized in some instances, apparently
when the court believes that the right or the class of persons
affected by the challenged statute is, although not "fundamental" or
"Suspect," nevertheless deserving of special protection. see, e.g.,
Plyler V. Doe, a;        Craig V. Boren, 429 U.S. 190 (1976). No
criteria that would enable one to predict when this intermediate level
of scrutiny will be employed have yet been articulated.

     The article 988 prohibition clearly does not burden any "suspect"
class. Nor, in our opinion, does it infringe upon any "fundamental"
constitutional right. See San Antonio Independent School District V.
Rodriguez, supra at 33(right      must be "explicitly or implicitly
guaranteed by the Constitution" to be deemed fundamental). Fashing
establishes that there is no fundamental right to become a candidate
for public office, and we think it follows that there is no
fundamental constitutional right to hold office. The Supreme Court
has also held that there is no fundamental constitutional right to




                               p. 2108
Honorable Gibson D. (Gib) Lewis - Page 3    O@J-572)




governmental employment per se.    Massachusetts Board of Retirement V.
Murgia, 427 U.S. 307 (1976).

     Since the article 988 prohibition affects neither a suspect class
nor a fundamental constitutional right, it is not subject to "strict
scrutiny." Nor do we believe that this is the kind of situation in
which a court would *eely the intermediate, balancing test
"substantial state interest" mode of analysis. This leaves the
rational basis test. Under this test, as articulated in Vance V.
Bradley, supra, we may find the prohibition unconstitutional only if
"the varying treatment... is so unrelated to the achievement of any
combination of legitimate purposes that we can only conclude that the
legislature's actions were irrational." 440 U.S. at 97.

     We cannot, in this instance, conclude that no rational basis for
the article 988 prohibition could be established. A policy in favor
of insuring the officeholder's allegiance to the city which he serves
mY   underlie this provision.     We therefore conclude that the
prohibition does not, on its face, deny city councilpersons the equal
protection of the laws.

     Your second question is answered by Woolridge V. Folsom, 564
S.W.Zd 471 (Tex. Civ. App. - Dallas 1978, no writ). There, the court
held that "article 988, like other articles in chapter 2 of title 28
of the Texas Revised Civil Statutes, apply only to general-law
municipalities." Id. at 473.    See also O'Quinn, History, Status and
Function of Cities,Towns     and Villages, 2A V.T.C.S. XIII (Vernon
1963).

     It has been suggested that when the legislature amended article
988 in 1981, it sought to broaden its scope to include home rule
cities. We disagree. In our opinion, it simply intended to prohibit
general law city councilpersons from holding a wider range of
employments. There is no evidence that it also intended to alter the
result of the Woolridge case.

     Regarding your third question, we note that article 988 does not
prescribe any penalty. Compare, e.g., V.T.C.S. arts. 41a-1; 5968.
Absent clear and convincing evidence, we decline to conclude that the
legislature intended the prohibition to result in an automatic
forfeiture of office. But this does not mean that the prohibition is
unenforceable. Article 5991, V.T.C.S., which applies to general law
cities, article 5995, V.T.C.S., provides that:

         The mayor and aldermen of any incorporated town or
         city may be removed from office for official
         misconduct.... (Emphasis added).




                                  p. 2109
Honorable Gibson D. (Gib) Lewis - Page 4   (m-572)




The civil offense of "official misconduct" is defined in article 5973,
V.T.C.S., which is applicable to mayors and aldermen, article 5974,
V.T.C.S., as:

          any unlawful behavior in relation to the duties of
          his office, wilful in its character, of **y
          officer intrusted in any manner with           the
          administration of justice, or the execution of the
          law; and includes any wilful or corrupt failure,
          refusal or neglect of an officer to perform any
          duty enjoined on him by law.

Compare Penal Code section 39.01 (criminal "official misconduct").
See Meyer V. Tunks, 360 S.W.2d 518 (Tex. 1962) ("official misconduct"
ZZt   involve "evil intent" or be "without reasonable grounds to
believe act lawful"); State vTMcAllister, 365 S.W.Zd 696 (Tex. Civ.
APP. - San Antonio 1963, no writ). Article 5992, V.T.C.S.. provides
that:

          When written sworn complaint charging any alderman
          with any act or omission which may be cause for
          his removal shall be presented to the mayor, he
          shall file the same and cause the alderman so
          charged to be served with a copy of such
          complaint, and shall set a day for the trial of
          the case, and notify the alderman so charged and
          the other aldermen of such town or city to appear
          on such day. The mayor and aldermen of such town
          or city, except the aldermen against whom
          complaint is made, shall constitute a court to try
          and determine the case.

-See V.T.C.S. art. 5994 (procedure).
     A statute does not operate as notice until it becomes effective.
Norton V. Kleberg County, 231 S.W.2d 716 (Tex. 1950). The new article
988 prohibition became effective on June 12, 1981. In our opinion, a
general law city councilperson who wilfully violated this prohibition
after it became effective could have been removed from office for
"official misconduct" in accordance with the foregoing statutes,
either because he engaged in "unlawful behavior in relation to the
duties of his office" or failed to "perform [a] duty enjoined on him
by law," viz., to terminate the prohibited employment. V.T.C.S. art.
5973. A councilperson may now, or hereafter, be removed from office
for this reason. But we do not believe that a councilperson who was
in violation of the prohibition on June 12, 1981, automatically
relinquished his office on that date.




                               p. 2110
Honorable Gibson D. (Gib) Lewis - Page 5   @iW-572)




     Your fourth question was contingent upon our reaching the
opposite conclusion on the third question. We therefore need not
address it.

                              SUMMARY

            The first sentence of article 988, V.T.C.S.,
         does not, on its face, deny city councilpersons
         the equal protection of the laws. It applies only
         to general law cities.     It does not work in
         automatic forfeiture of office, but it does afford
         a basis for initiating a proceeding for removal
         from office for "official misconduct" under
         article 5991, V.T.C.S., and related statutes.




                                        MARK      WHITE
                                        Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by Jon Bible
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Patricia Hinojosa
Jim Moellinger
Joe A. Tucker




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