                                          The Attorney                General of Texas

MARK WHITE
Attorney General                                          September    10,    1982

                                         Mr. David Dean                              Opinion No.   MW-513
Supreme      Court Building
                                         Secretary of State
P. 0. Box 12546
Austin.    TX. 76711. 2546
                                         P. 0. Box 12697                             Re:   Construction of article
512/475-2501                             Austin, Texas   78711                       III, section 19 of the Texas
Telex    9101674-1367                                                                Constitution
Telecopier     512/475.0266

                                         Dear Mr. Dean:
1607 Main St., Suite 1400
Dallas,   TX. 75201.4709                      You inquire about the effect of the recent United States Supreme
2141742-6944                             Court decision in Clements v. Fashing, on certain Texas officeholders
                                         and candidates for elective office.      The Fashing decision upheld
                                         article III, section 19 and article XVI, section 65 against challenges
4624 Alberta      Ave., Suite      160
El Paso, TX.      79905.2793
                                         to their constitutionality raised by public officials and voters of El
91515333464                              Paso county.    Article III, section 19 of the Texas Constitution
                                         provides as follows:
1220 Dallas Ave.. Suite           202
                                                      No judge of any court, Secretary of State,
HOUS,O~, TX. 77002-6966
7131650-0666                                       Attorney General, clerk of any court of record, or
                                                   any person holding a lucrative office under the
                                                   United States, or this State, or any foreign
606 Broadway,         Suite 312                    government shall during the term for which he is
Lubbock,  TX.       79401.3479
                                                   elected   or   appointed,  be   eligible   to  the
6061747-5236
                                                   Legislature.

4309 N. Tenth.    Suite B                A justice of the peace of El Paso County attacked this provision as
McAllen,    TX. 78501.1685               violating the equal protection and due process rights guaranteed by
5121662-4547
                                         the first, fifth, and fourteenth amendments of the United States
                                         constitution.
200 Main Plaza, Suite 400
San Antonio.  TX. 76205.2797                  Article XVI, section 65 provides that certain district, county,
5121225-4191                             and precinct officers will automatically vacate their offices if they
                                         become candidates for a second office when the unexpired term of the
An Equal       Opportunityl              first office exceeds one year.   This provision was challenged on the
Affirmative      Action     Employer     same constitutional grounds as article III, section 19.

                                              The federal district court ruled in favor of plaintiffs, and
                                         enjoined the El Paso County officials and the governor, secretary of
                                         state, and attorney general from enforcing the challenged provisions
                                         of article III, section 19 and article XVI, section 65.    Fashing v.
                                         Moore, 489 F. Supp. 471 (W.D. Tex. 1980). The district court ruling
                                         was affirmed by the Fifth Circuit.   Fashing 'I. Moore, 631 F.2d 731



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Mr. David Dean - Page 2   (mt-513)




(5th Cir. 1980) (per curiam).    The        United States Supreme Court
reversed the Fifth Circuit. Clements        v. Fashing, 50 U.S.L.W. 4869
(1982).

     Following the district court ruling in Fashing, a number of
officeholders continued to perform the duties of their first office
while running for a second in contravention of the terms of article
XVI, section 65. You inquire about the effect of the Supreme Court
decision in Fashing on these persons.   This question has been raised
in lawsuits filed by two of the officers in question.        Spears v.
Bustamente, No. 82-Cl-10202 (Dist. of Bexar County, 131st Judicial
Dist. of Texas, filed July 6, 1982); Heard v. Lindsay, No. 82-33895
(Dist. of Harris County, 189th Judicial Dist. of Texas, filed July 9,
1982).   It is the longstanding policy of this office not to issue
opinions on matters that are in litigation.    Therefore, we will not
answer your question concerning the effect of the Supreme Court ruling
on officeholders subject to article XVI, section 65.

     You also ask whether     officeholders  covered by article III,
section 19 of the Texas Constitution are eligible to run for the Texas
Legislature where the term of the current office does not overlap the
term of the legislative office sought.       Article III. section 19
provides as follows:

            No judge of any court, Secretary of State,
         Attorney General, clerk of any court of record, or
         any person holding a lucrative office under the
         United States, or this State, or any foreign
         government shall during the term for which he is
         elected   or   appointed,  be   eligible   to  the
         Legislature.

The Texas Supreme Court has held that this provision          bars an
officeholder   from  seeking  election  to the    legislature  if the
legislative term overlaps with the term of the current office. Lee v.
Daniels, 377 S.W.2d 618 (Tex. 1964); Willis v. Potts, 377 S.W.2d 622
(Tex. 1964); Kirk v. Gordon, 376 S.W.2d 560 (Tex. 1964).

     The United States Supreme Court opinion in Clements v. Fashing,
relied upon the construction of article III, section 19 as announced
by the Texas Supreme Court. The plurality opinion stated as follows:

         Section 19 renders an officeholder ineligible for
         the Texas legislature    if his current term of
         office will not expire until after the legislative
         term to which he aspires begins.   Lee v. Daniels,
         377 S.W.2d 618, 619 (Tex. 1964)....       In other
         words, §19 requires an officeholder to complete


                              P.     1856
.   -


        Mr. David Dean - Page 3   (MW-513)




                  his current term of office before       he   may   be
                  eligible to serve in the Legislature.

        An individual who is ineligible to hold an office may not become a
        candidate for it.   Elec. Code art. 1.05, 51. Thus, an officeholder
        named by article III, section 19 may not run for a legislative term
        that would overlap the term he is currently serving.

             It is a reasonable inference from the Texas Supreme Court cases
        construing article III, section 19, that this provision does not
        prohibit an officer from running for the Texas Legislature when the
        term of his current office expires before the term of the legislative
        office begins.  The Texas Supreme Court stated in Kirk v. Gordon that:

                     It is the fact that the term of office of
                  district   attorney   to  which  he  "as   elected
                  conflicts with the term of office of members of
                  the House of Representatives which controls.

        376 S.W.2d at 562.   This statement was quoted in Lee v. Daniels, 377
        S.W.2d at 619.   A court of civil appeals, the secretary of state's
        office and this office have interpreted article III, section 19 as not
        prohibiting an officeholder from seeking legislative office if his
        current term expires before the legislative term begins. -See Chapa v.
        Whittle, 536 S.W.2d 681 (Tex. Civ. App. - Corpus Christi 1976, no
        writ); Attorney General Opinion H-278 (1974); Election Law Opinion
        DAD-34 (1982).

             In adjudicating the validity under the federal Constitution of a
        provision of state law, the United States Supreme Court looks to the
        decisions of that state's courts to determine the meaning of the
        provision.   -See Clay v. Sun Insurance Office, Ltd., 363 U.S. 207
        (1960); Leitner Minerals, Inc. v. United States, 352 U.S. 220 (1957).
        In   Clement6    v.   Fashing,  the    Supreme  Court   addressed   the
        constitutionality of article III, section 19 as construed by the Texas
        courts. There are statements in the plurality opinion of Clement6 v.
        Fashing which could be read to suggest that section 19 bars an
        officeholder from even becoming a candidate for the legislature until
        his current term is completed.   However, these statements must be read
        in the context of the Court's initial discussion of article III,
        section 19 and of the particular facts before it. The Court does not
        purport to construe article III, section 19 in a way that is
        inconsistent with the construction adopted by the Texas Supreme Court.
        Article III, section 19 does not render an officeholder ineligible to
        run for the Texas Legislature when the term of his current office does
        not overlap the term of the legislative office sought.


                                       P.    1857
Mr. David Dean - Page 4    (&fw-513)




                                SUMMARY

             Article    III,  section   19    of    the    Texas
          Constitution   does not   render   an officeholder
          subject to its provisions ineligible to run for
          the Texas Legislature when the term of his current
          office   does   not  overlap   the    term    of   the
          legislative office he is seeking.




                                             MARK      WHITE
                                             Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by Susan L. Garrison
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Patricia Hinojosa
Jim Moellinger
Bruce Youngblood




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