                                   ATTORNEY GENERAL OF TEXAS
                                                GREG        ABBOTT




                                                     April lo,2003



The Honorable John Whitmire                                     Opinion No. GA-0057
Chair, Criminal Justice Committee
Texas State Senate                                              Re: Whether an individual may simultaneously
P.O. Box 12068                                                  serve as a member of a city council and a
Austin, Texas 78711                                             Selective Service Local Board (RQ-0616-JC)

Dear Senator Whitmire:

         Your predecessor as Chair of the Senate Criminal Justice Committee asked whether’a city
councilman’s acceptance of a position on a Selective Service Local Board serves as an automatic
resignation of his city council position.’ Selective Service Local Boards (“local boards”) are civilian
boards established under the Military Selective Service Act, 50 U.S.C. app. §§ 45 l-473 (2000), to
hear and determine claims about inclusion in and exemption or deferment from mandatory induction
into military service. See id. 5 460(b)(3); see also 32 C.F.R. $8 1602.14, 1633.2(c)-(f) (2002).

         The individual was elected to the Wharton City Council in May 1999.2 In the year 2000, he
was asked by a member of the local board if he was interested in a position on the board, and he
indicated that he was. See Webb Brief, supra note 2, at 1. In August 2001, he completed the
necessary paperwork, and the Director of the Selective Service System sent him a letter dated August
8, 2001, appointing him in the name of the President a member of the local board in the State of
Texas. See id. A Certificate of Appointment dated August 8,2001, accompanied the letter.3 The
individual contends that he did not qualify as a local board member because he did not receive the
required training. See Webb Brief, supra note 2, at 2. The Certificate of Appointment demonstrates
that he was appointed as a local board member and was authorized to fulfill the duties of that office,
while the letter of appointment welcomed him to the Selective Service System and informed him that
he would be contacted about training in Selective Service policies and procedures within a few
months.    Thus, the documents from the Selective Service System show that training was not



           ‘See Letter and attachments from Honorable Kenneth Armbrister, Chair, Criminal Justice Committee, Texas
State Senate, to Honorable John Comyn, Texas Attorney General (Oct. 3, 2002) (on file with Opinion Committee)
[hereinafter Request Letter].

          2See Brief from Paul Webb, Attorney at Law, to Honorable           Kenneth    Arrnbrister     at 1 (Aug. 26, 2002)
(attachment to Request Letter) [hereinafter Webb Brief].

           3See Certificate   of Appointment   and Letter from Alfred   Rascon,   Selective   Service   System, to Domingo
Montalvo    (Aug. 8,200l)     (attachments to Request Letter).
The Honorable John Whitmire            - Page 2             (GA-0057)




necessary to qualify for membership on the local board. On July 7, 2002, the Wharton mayor
informed the city councilman of the possibility that he had resigned his city council position upon
accepting the appointment to the local board.4 The city councilman irmnediately resigned his
position on the local board.

         Article XVI, section 12 of the Texas Constitution             states:

                   No member of Congress, nor person holding or exercising any office
                   of profit or trust, under the United States, or either of them, or under
                   any foreign power, shall be eligible as a member of the Legislature,
                   or hold or exercise any office of profit or trust under this State.

TEX. CONST.      art.   XVI, 5 12.

         Pursuant to this constitutional provision, a person holding an office of trust under state law
who accepts an “office of profit or trust, under the United States,” id., will automatically vacate the
 office held under state law. In Lowe v. State, 201 S.W. 986 (Tex. Crim. App. 1918)’ a defendant
 convicted of murder challenged the authority of the special judge who tried the case. The regular
judge became an officer in the National Guard and was placed on the federal payroll. The court
 stated that “when an officer of the state accepts an office of profit in the military service of the
United States, his tenure as judge ceases by virtue of the constitutional provision contained in article
 16, 8 12.“’ Lowe, 201 S.W. at 987. Although the regular judge vacated his office on the date
 following the election of the special judge, the special judge was authorized to continue to preside
over the court. See id. Attorney general opinions also state that a person who holds an office of
profit under this state will automatically resign that office if he or she accepts and qualifies for a
 federal office of profit or trust in violation of Texas Constitution article XVI, section 12. See Tex.
Att’y Gen. Op. Nos. DM-49 (1991) at 4 (justice of Texas Supreme Court may not serve as board
member of State Justice Institute); O-53 17 (1943) at 2 (if legislator accepts a federal office he will
automatically forfeit and vacate his legislative office).

        Judicial decisions under Texas Constitution article XVI, section 40 apply the rule of
automatic vacation of office followed in Lowe. Article XVI, section 40 of the Texas Constitution
provides that “[n]o person shall hold or exercise at the same time, more than one civil office of




         4See Letter from Garland S. Novosad, Mayor, City of Wharton,       to Domingo   Montalvo,   Member,   Selective
Service System (July 7,2002) (attachment to Request Letter).

           ‘Article XVI, section 12 of the Texas Constitution no longer bars members of the National Guard from serving
as state officers. Amendments to Texas Constitution article XVI, sections 33 and 40 adopted after the Lowe case’permit
officers and enlisted members of the National Guard and other military personnel to hold public office or employment
in Texas. See Cramer v. Sheppard, 167 S.W.2d 147, 151-52 (Tex. 1942); see also Tex. S.J. Res. 7, 39th Leg., R.S.,
1925 Tex. Gen. Laws 680. The amendments to article XVI, sections 33 and 40 were held to be applicable to article XVI,
section 12 as well. See Carpenter v. Sheppard, 145 S.W.2d 562, 567 (Tex. 1940) cert. denied 312 U.S. 697 (1941).
The Honorable       John Whitmire        - Page 3              (GA-0057)




emolument,“6 subject to exceptions stated in the constitutional provision. In Pruitt v. Glen Rose
Indep. Sch. Dist., 84 S.W.2d 1004 (Tex. 1935),the Texas Supreme Court determined that when the
tax collector for the Glen Rose Independent School District was elected to and qualified for the
office of sheriff and tax collector of Somervell County, “he automatically forfeited his right to the
office of collector for the school district, because the holding of both said offices at the same time
by the same person is within the prohibition of article 16, 4 40, of our State Constitution.” Pruitt,
84 S.W.2d at 1006. The Pruitt court stated the rule of automatic vacation of office as follows: “If
a person holding an office is elected or appointed to another (where the two offices cannot be legally
held by the same person) and he accepts and qualifies as to the second, such acceptance and
qualification operate, ipso facto, as a resignation of the former office.” Id. When the school
district’s tax collector was elected to and qualified for the second office, and article XVI, section 40
prohibited him from holding both offices at the same time, he was deemed to have chosen the second
office and to have resigned the first office. See id. at 1006-07; see also State ex rel. Kingsbury v.
Brinkerhoff, 17 SW. 109, 110 (Tex. 1886) (elected city secretary who accepted and qualified for
office of city recorder ipso facto resigned the office of city secretary), Biencourt v. Parker, 27 Tex.
558 (1864) (notary public’s election to and qualification for office of county clerk automatically
vacated office ofnotary), Centeno v. Inselmann, 519 S.W.2d 889,890 (Tex. Civ. App.-San Antonio
 1975, no writ) (trustee of city public service board would automatically relinquish that office if
elected to and qualified for city council); c$ AZejandro v. Hunter, 951 S.W.2d 102, 105-06 (Tex.
App.-Corpus Christi 1997, no writ) (when mayor pro tern agreed to perform the duties of mayor
following recall of elected mayor, he did not vacate office of mayor pro tern).

         An elected city council member holds an “‘office or position of. . . trust . . . under this
State. “’ See Boyett v. Calvert, 467 S.W.2d 205,208-09 (Tex. Civ. App.-Austin 1971, writ ref d
n.r.e.) (quoting former language of Texas Constitution article XVI, 9 33); see also TEX. CONST.art.
XVI, 5 33 interpretive commentary (Vernon 1993). Thus, if a city council member is appointed to
and qualifies for an office of profit or trust under the United States, he or she will automatically
cease to be a city council member.

        The position of local board member is created by federal law and board members are
appointed by the President.    See 50 U.S.C. app. 4 460(b)(3) (2000). Thus, this position is held
“under the United States” for purposes of article XVI, section 12 of the Texas Constitution. See Tex.
Att’y Gen. Op. No. MW-360 (1981) at 3. It is not a position of profit because a federal regulation
provides that a local board member is uncompensated. See 32 C.F.R. 8 1609.1(2002). To determine
whether a person is a public officer, we apply the following test approved by the Texas Supreme
Court in Aldine Independent School District v. Stand@, 280 S.W.2d 578 (Tex. 1955): “‘[Tlhe
determining factor which distinguishes a public officer from an employee is whether any sovereign
function of the government is conferred upon the individual to be exercised by him for the benefit
of the public largely independent of the control of others.“’ Aldine, 280 S.W.2d at 583 (quoting
Dunbar v. Brazoria Co., 224 S.W.2d 738’740-41 (Tex. Civ. App.-Galveston 1949, writ ref d)). See
also Green v. Stewart, 516 S.W.2d 133, 135-36 (Tex. 1974); Tex. Att’y Gen. Op. No. DM-49
(1991) at 5.


          6A “civil office” within Texas Constitution article XVI, section 40 is a public office “that pertains to the exercise
of the powers or authority of civil government” and “emolument” is “a pecuniary profit, gain or advantage.” State ex
rel. HiZZ v. Pirtle, 887 S.W.2d 921,931 (Tex. Crim. App. 1994) (en bane) (assistant attorney general is not an officer
within article XVI, section 40, Texas Constitution).
The Honorable    John Whitmire     - Page 4           (GA-0057)




         This office has twice held that a member of a local board occupies an office of trust under
the United States. See Tex. Att’y Gen. Op. Nos. MW-360 (1981) at 3; O-5550 (1943) at 3-5.
Attorney General Opinion MW-360 considered whether an elected state, county or city officer could
serve as a local board member of the Selective Service System. It noted that “[tlhe federal
government recently re-established such boards and placed them in stand-by status, in the event a
military draft is again imposed.” Tex. Att’y Gen. Op. No. MW-360 (1981) at 1. Attorney General
Opinion MW-360 concluded that the following federal law delegated some of the sovereign
functions of the United States government to members of local boards:

                Such local boards, or separate panels thereof each consisting of three
                or more members, shall, under rules and regulations prescribed by the
                President, have the power within the respective jurisdictions of such
                local boards to hear and determine, subject to the right of appeal to
                the appeal boards herein authorized, all questions or claims with
                respect to inclusion for, or exemption or deferment from, training and
                service under this title . . . of all individuals within the jurisdiction of
                such local boards. The decisions of such local boards shall be final,
                except where an appeal is authorized . . . .

 50 U.S.C. app. 5 460(b)(3) (2000). See 32 C.F.R. 80 1605.51-.59 (2002) (composition and
jurisdiction of local boards). See also Arver v. United States, 245 U.S. 366’3 89 (19 18); Talmanson
v. United States, 386 F.2d 8 11, 8 12 (1 st Cir. 1967)’ cert. denied, 391 U.S. 907 (1968) (upholding
delegation of discretionary authority to local boards).

         Attorney General Opinion MW-360 acknowledged that the local boards were on standby
status, but it did not consider the implications of their standby status or of the absence of a draft. The
Military Selective Service Act provides that “no person shall be inducted for training and service in
the Armed Forces after July 1,1973, except persons now or hereafter deferred . . . after the basis for
such deferment ceases to exist.” 50 U.S.C. app. 4 467(c) (2000); see also id. 0 454(c) (provision for
voluntary induction in Regular Army). The Selective Service System is maintained as “an active
standby organization, with . . . a complete registration and classification structure capable of
immediate operation in the event of a national emergency.”             Id. 8 460(h). Local boards are
maintained in “standby status.” See 32 C.F.R. 8 1609.3(a)(6) (2002). The present status of local
boards raises an issue of whether they and their members exercise governmental authority under the
Military Selective Service Act.

         The governmental authority vested in a local board is the power to consider and determine
claims from Selective Service registrants who have received an order to report for induction.
50 U.S.C. app. 8 460(b)(3) (2000); 32 C.F.R. $8 1633.2(c)-(f), 1648.1 (2002); see also id. 0 1648.6
(registrants transferred for classification). A local board’s exercise of this authority is contingent
upon the federal government’s issuance of induction orders. Federal law, however, provides that
no one shall be inducted into the Armed Services, see 50 U.S.C. app. 0 467(c) (2000)’ thereby
effectively suspending the discretionary authority of local boards. At present, a local board cannot
exercise “any sovereign function of the government,” Aldine, 280 S.W.2d at 583, and its members
therefore do not have the powers of public officers. Local boards still have functions that are
relevant to their standby status, such as keeping records and undergoing training. See 50 U.S .C. app.
The Honorable John Whitmire              - Page 5              (GA-0057)




8 465(b) (2000) (registrant must keep local board informed of his current address). In contrast to a
local board’s substantive authority to hear and determine claims of exemptions or deferrnent from
conscription, a board’s present functions do not involve any exercise of discretion or judgment. See
generally Downing v. Brown, 935 S.W.2d 112, 114 (Tex. 1996) (“Ministerial actions require
obedience to orders or the performance of a duty to which the actor has no choice.“), First Nat7
Bank v. McElroy, 112 S.W. 801, 804 (Tex. Civ. App.-Texarkana            1908, no writ) (“duties of a
recording officer are ministerial”); Tex. Att’y Gen. Op. No. O-7487 (1946) at 3 (secretary to local
board does not hold an office of profit or trust under the United States).

        The authority of a local board member is analogous to that of the national guard officer in
Exparte Dailey, 246 S.W. 91 (Tex. Crim. App. 1922). The court upheld a district judge’s authority
to commit the relator for contempt, determining that the judge had not vacated his office when he
was commissioned as captain in the Texas National Guard. See Dailey, 246 S. W. at 92-4. The judge
had been appointed and commissioned by the Governor of Texas, and he would not be subject to the
President’s orders until the Texas National Guard was called into the actual service of the nation.
See id. at 92. Thus, the judge did not hold a federal office under Texas Constitution article XVI,
section 12, and he had not vacated his judicial office pursuant to that constitutional provision. See
id. The Dailey opinion however “intimated . . . that the decision would have been otherwise had the
officer been called into active federal military service.” Cramer v. Sheppard, 167 S.W.2d 147,151
(Tex. 1942).7

        Moreover “[a]ny constitutional or statutory provision which restricts the right to hold office
must be strictly construed against ineligibility.” Wentworth v. Meyer, 839 S.W.2d 766,767 (Tex.
 1992). “[I]t follows that if a constitutional provision uncertain of meaning is susceptible of two
reasonable interpretations, the least exclusionary must be utilized.” Id. at 769 (Gonzalez, J.,
concurring). Following this rule of construction, we read article XVI, section 12 as applying only
to persons who may actually exercise federal governmental authority under the United States.
Because a local board member does not have such authority at the present time, he or she does not
hold an office of trust under federal law within that constitutional provision.

         Information provided by the Selective Service System states that in the event of a return to
conscription the local boards would be “activated throughout the nation?           If Congress acts to
reinstate the draft, local board members will be vested with governmental powers and will hold an
office of trust under federal law, and article XVI, section 12 of the Texas Constitution will bar local
board members from also holding or exercising any office of profit or trust under this state.

         When the Wharton city councilman accepted a position on a “standby” local board, he did
not resign his office as city councilman nor did he resign his office at any time during his service.
Attorney General Opinion MW-360 (198 1) is modified in accord with this opinion.




          ‘Article XVI, section 12 of the Texas Constitution   no longer bars members of the National Guard from serving
as state officers. See supra, note 5.

       *SeeSELECTIVESERVKESYSTEM,FASTFACTS: How WOULDSELECTIVESERVICECONDUCTARETIJRNTO
CONSCRIPTION?at 1; avaiZabZe at httD://www.sss.gov/FShow%2Owould.htm.
The Honorable John Whitmire        - Page 6          (GA-0057)




                                         SUMMARY

                       Article XVI, section 12 of the Texas Constitution provides
               that no one holding or exercising any office of trust under the United
               States is eligible to hold an office of trust under this state. If a person
               who holds an office of trust under Texas law accepts an office of trust
               under the United States, he automatically resigns his Texas office.

                        A member of a Selective Service Local Board does not at
               present occupy an office of trust under the United States because a
               local board’s governmental powers are exercised only in the event of
               mandatory induction into the military services, and federal law does
               not today provide for conscription.    The Selective Service System,
               including local boards, is currently on standby status. A city
               councilman who accepts an appointment to a local board at the
               present time does not accept an office of trust under federal law and
               therefore does not automatically resign from the city council position.
               Should conscription be reinstated, members of local boards would at
               that time hold governmental authority. Attorney General Opinion
               MW-360 (1981) is modified in accord with this opinion.

                                                Very truly yours,




BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General - Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee
