                              ATTORNEY GE&RAL                    OF    TEXAS
                                          GREG        ABBOTT




                                                April 6,2006



The Honorable Galen Ray Sumrow                         Opinion No. GA-0421
Rockwall County Criminal District Attorney
Rockwall County Government Center                      Re: Whether under article III, section 19 of the
1101 Ridge Road, Suite 105                             Texas Constitution a city council member whose
Rockwall, Texas 75087                                  current term of office is uncompensated is eligible
                                                       for election to the legislature (RQ-040%GA)

Dear Mr. Sumrow:

        You ask whether under article III, section 19 of the Texas Constitution        a city council member
whose current term of office is uncompensated is eligible to be elected to            the legislature.’ Your
question concerns a home-rule municipality whose city charter authorizes               the council to set the
council members’ compensation, if any, by ordinance. See Request Letter,              supra note 1, at 1; see
also CITY OF ROCKWALL, TEX. HOME RULE CHARTER art. III, 5 3.03 (1985)                      (directing   that the
council must determine council members’ compensation by ordinance) Fereinafter RockwBll
Charter]. You inform us that the council member at issue was first elected to a two-year term on the
council in May 2003. See Request Letter, supra note 1, at 1; see also Rockwall Charter, supra,
§ 3.01 (directing that council members “shall serve for a term of two years”). At that time, in
accordance with an ordinance, each council member received $90 per year as compensation.        See
Request Letter, supra note 1, at 1. Consequently, the council member received $90 in May 2004 for
serving from May 2003 through May 2004 and $90 in May2005 for serving from May 2004 through
May 2005. See id. The council member was reelected to another two-year council term in May
2005, and the term started in that month. See id. On September 19,2005, the council repealed the
ordinance providing compensation to council members. See id. Accordingly, you state, the council
member “will not be paid for his second term of service on the City Council (from May 2005%May
2007).” Id. The council member recently announced his candidacy for a seat in the Texas Senate.’



          ‘See Letter from Honorable Galen Ray Sumrow,Rockwall County CriminalDistrictAttorney, to Honorable
Greg Abbott, Attorney General of Texas (Oct. 25, 2005) (on file with the Opinion Committee, also available at
http://www.oag.state.rx.us) [hereinafter Request Letter].

        ‘See Ian McCann, Rockwall Council Member Says He’ll Race DeueN for Senate Seat, DENTON RECORD-
CHRONICLE(Nov. 2,2005) (mailabk af http://dentonrc.com/s/dws/news/city/roc~a~lrowle~s~ories~N-deuellduel~O2
met.ART.North.EditionZ.ld2bc858.html);  see also Roy Maynard, RockwaN McCaNum Chdenges                  Da& TYLER
MORNING TELEGRAPH(Dec. 28,200s) ( available at http://www.zwire.com/site/news.cfm?newsid=15832815&BRD=
1994&PAG=46l&dept_id=226369&rfi=S).
The Honorable Galen Ray Sumrow        - Page 2        (GA-0421)




         You ask whether the council member is ineligible to run for the Texas Legislature under
article III, section 19 of the Texas Constitution, and we are therefore called upon to examine that
constitutional provision.     See id. at l-2; see also TEX. CONST. art. III, 5 19. We note, as a
preliminary matter, that the City of Rockwall’s (the “City”) charter requires that an increase in
council members’ compensation may not “take effect until the commencement ofthe terms of Mayor
and/or Council members elected at the next regular election.” Rockwall Charter, supua, § 3.03. But
nothing in the charter forbids the council from decreasing or eliminating its compensation mid-term.
See id. Moreover, as the City is a home-rule municipality, see id. 3 2.01, it is not subject to Local
Government Code section 141.001, which requires a type A general-law municipality to set elected
officers’ salaries “[o]n or before January 1 preceding a regular municipal election” and prohibits
changing the compensation mid-term, see TEX. LOC. GOV’T CODE ANN. 3 141.001 (Vernon 1999);
see also City ofBrownsville v. Kinder, 204 S. W. 446,447 (Tex. Civ. App.-San      Antonio, writ ref d)
(construing pre-codified version of Local Government Code section 141.001).

         In interpreting a constitutional provision, we begin with the text itself. See Wentworth v.
Meyer, 839 S.W.2d 166,767 (Tex. 1992). When the text’s meaning is in doubt, we “consider the
intent of the people who adopted the constitution.” Id. And we must strictly construe a provision
that restricts the right to hold office to minimize ineligibility. See id.

         Under article III, section 19, no person “holding a lucrative office under      this State
shall, during the term for which he is elected        be eligible to the Legislature.” TEX. CONST. art.
III, 3 19. “The policy underlying” article III, section 19, as the Texas Supreme Court determined in
1992, “is the doctrine of separation of power&] which was considered a means of mitigating undue
influence by the executive upon the legislative branch.” Dawkins v. Meyer, 825 S.W.2d 444,448
(Tex. 1992); accord Wentworth, 839 S.W.2d at 767 (discussing Dawkins).

         At present, the council member about whom you ask is uncompensated and thus does not
hold a lucrative office. According to the Texas Supreme Court, “an office is lucrative” for purposes
of article III, section 19 “if the office holder receives any compensation, no matter how small,”
although “[rleimbursement for expenses alone does not render an office ‘lucrative.“’ &w&s,        825
S.W.2d at 447; see In re Carlisle, 49 Tex. Sup. Ct. J. 262,264,2006       WL 120292, at *3 (Tex. Jan.
17,2006) (per curiam) (holding that reimbursement for meals does not render an office lucrative);
Whitehead Y.Julian, 476 S.W.2d 844,845 (Tex. 1972) (holding that a $50 expense allowance does
not render an office lucrative if expenses exceed the allowance). Article III, section 19 applies to
a salaried city council member. Sex?Willisv. Potts, 377 S.W.2d 622, 627 (Tex. 1964) (concluding
that a city council member who received $10 per diem for each regular meeting plus necessary
expenses held a lucrative office for purposes of article III, section 19); Tex. Att’y Gen. LO-89-106,
at 1 (citing Willis for the proposition that a salaried city council member holds a lucrative office).

         Nevertheless, you seem to be concerned that the compensation the council member received
during his first two years in office may render his office lucrative. See Request Letter, supra note
1, at 2. Under article III, section 19 a person holding a lucrative office under this state is ineligible
for the legislature “during the term for which” the person was elected. TEX. CONST. art. III, 5 19.
In our opinion, the word “term” in this context is synonymous with the phrase “term of office.”
The Honorable Galen Ray Sumrow              - Page 3         (GA-0421)




“A term of office is a fixed and definite period” that is generally set by law. Tex. Att’y Gen. Op. No.
JC-0264 (2000) at 5; see Spears v. Davis, 398 S.W.2d 921,926 (Tex. 1966). The Texas Supreme
Court has clearly distinguished between the phrase “term of office” and an individual’s tenure of
office. See Spears, 398 S.W.2d at 926. “The period of time designated as a term of oflice may not
and often does not coincide with an individual’s tenure of office.” Id. As this office has stated, “[a]
term of office may be legally established for a period of two, three, four[,] or six years. A given
individual, however, may serve for a shorter or longer period than the term prescribed by law.” Tex.
Att’y Gen. LO-89-106, at 2.

          The City’s charter sets city council members’ terms at two years. See Rockwall Charter,
supra, 5 3.01; see also Request Letter, supra note 1, at 1 (indicating that the council member’s first
term ran from May 2003 through May 2005 and his second term runs from May 2005 through May
2007). Although the council member held a lucrative office during his first two-year term, his
current two-year term, which commenced in May 2005, is not lucrative. Under the city ordinance,
he will receive no compensation during the current two-year term. See Request Letter, supra note
 1, at l-2.

         We accordingly conclude that article III, section 19 does not, in these circumstances, render
this council member ineligible from election to the legislature. In reaching this conclusion, we
assume that the city council repealed its compensation ordinance by adopting an ordinance. See
Rockwall Charter, supra, 5 3.11(l) (“After adoption an ordinance shall not be          repealed except
by the adoption of another ordinance      .“). If the repeal was not accomplished by ordinance, it is
ineffective. See City ofSan Antonio v. Micklejohn, 33 S.W. 735,736 (Tex. 1895) (“The act which
destroys should be of equal dignity with that which establishes.“).

         Of course, should the council member be elected to the legislature, he automatically resigns
his council seat when he qualifies for the legislative offrce.3 See TEX. CONST. art. XVI, 5 40(d) (“No
member of the Legislature         may hold any other office         under this State    .“); Purcell v.
Carillo, 349 S.W.2d 263, 263 (Tex. Civ. App.-San             Antonio 1961, no writ) (stating that, for
purposes of article XVI, section 40, an individual does not “hold” an office until the individual
qualifies or enters upon the office’s duties); Tex. Att’y Gen. Op. No. JC-0464 (2002) at 3-4
(concluding that under article XVI, section 40(d) anew legislator automatically resigns an existing
position on a state board’s governing body).




           'Becausethe Rockwall city council members hold office for two-year terms, article XI, section I I ofthe Texas
Constitution, under which a council member would automatically resign his or her city office should the council member
run for another office with more than one year let? in the council term, does not apply. See TEX. CONT. art. XI, 5 11,
The Honorable Galen Ray Sumrow     - Page 4      (GA-0421)




                                     SUMMARY

                       A city council member whose current term of office, which
              began in May 2005, is uncompensated in accordance with ordinance
              is eligible for election to the Texas Legislature under article III,
              section 19 of the Texas Constitution.




BARRY R. MCBEE
First Assistant Attorney General

ELLEN L. WlTT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
