                THE       AITORNEYGENERAL
                               OPTE~AS
                               AUSTIN 1% TEXAS
                              August 4, 1960
  WVILL WILSON
*TTORNE~GENERAL
    Honorable H. J. Blanchard. Chairman     Opinion No. WW-898
    General Investigating Committee
    House of Representatives                Re:   Qualifications of Members
    Great Plains Life Building                    of the House of Representa-
    Lubbock, Texas                                tives to serve on interim
                                                  committees.

    Dear Mr. Blanchard:

          As Chairman of the House General Investigating Committee
   created by H.S.R. 202, 56th Legislature, Regular Session, you have
   requested an opinion as to the status of three members of the Com-
   mittee in view of the provisions of Article 5429e, Vernon’s Civil
   Statutes, which reads as follows:

                   “The membership of any duly appointed Senator
          or Representative on the Legislative Budget Board or
          on the Legislative Council, or on any other interim Com-
          mittee, shall, on the following contingencies. terminate,
          and the vacancy created thereby shall be immediately
          filled by appointment for the unexpired term in the same
          manner as other appointments to the Legislative Budget
          Board and the Legislative Council are made:

                 “(a)   Resignation of such membership:

                  “(b) Cessation of membership    in the Legislature
          for death or any reason:

                  “(c) Failure of such member to secure nomina-
          tion or election to membership in the Legislature for the
          next succeeding term.”

          Your opinion request reads in part as follows:

                  “I am advised that on September 9, 1954. the
          Honorable John Ben Shepperd, then Attorney General of
          Texas, in Opinion No. S-139, rendered an opinion to the
          effect that members of the House of Representatives
Hon. H. J. Blanchard, page 2 (WW-898)



      appointed on interim committees were disqualified
      from service on said committees after the official
      canvass reflected that they were not re-elected.

              “This request is for the purpose of clarifi-
      cation of several questions, to-wit:

             “(1) Is a member who is nominated in the
      primary assured of election, or must he wait until
      the November General Election?

               “(2) On what date does the member become
      disqualified?

               “(3) If a special session of the Legislature is
      called, are members who have not qualified for re-
      election disqualified from service during the special
      session?

               “(4) If the answer to No. 3 is No, is the mem-
      ber so disqualified able to serve on committees during
      the called session?

               “(5) If a Democratic nominee becomes dis-
      qualified in the event of defeat by an Independent or
      Republican candidate, does such disqualification take
      place at the official canvass following the November
      elections ?

              “(6) What would preclude a member from
      running and being elected at the November General
      Election as an Independent or Republican?

               “I would appreciate your prompt attention to
      this matter, inasmuch as the Hon. Joe Burkett, Carl
      Conley and I did not seek re-election. Since the offi-
      ,cial canvass of the Democratic Party was made May 17,
       1960, we must determine our course of action.

               “Mr. Carr advises that if the three of ua are
      disqualified he desires to appoint other members to
      replace us.”

      We have reviewed Opinion No. S-139 and we agree with its hold-
ings. The emergency clause of the bill by which Article 5429e was
enacted sheds light on the purpose and intent of the statute. It recited
Hon. H. J. Blanchard. page 3 (WW-898)



that “the importance of requiring that Members of the Legislative
Budget Board and the Legislative Council, or any other interim Com-
mittee, be Members of tha Legislature during the term of their appoint-
ment, and also for the succeeding term of the Legislature” created
the emergency for the enactment. The holdings in Opinion S-139 are
in accord with this expressed purpose. Since you probably have not seen
the full text of the opinion, we are enclosing a copy herewith. A reading
of the opinion will answer some of your questions without further clar-
ification.

      The holdings in Opinion No. S-139    which are pertinent to your
request are as follows:

     1. Subdivision (c) of Article   54290 does not apply to ‘“ex-officio”
members of interim committees.

       2. Unless terminated earlier by resignation from the committee,
cessation of membership in the Legislature. or failure to secure nomina-
tion to membership in the Legislature for the next succeeding term, an
appointive membership on an interim committee is terminated if the
mamber is not again elected to either the House or the Senate at the
general election for the year in which his term of office as legislator
is ending. The date of termination is the date on which the results of
the election are officially canvassed;

       3. Where a member has sought renomination or nomination to
the othar branch of the Legislature in a party primary and fails to ob-
tain the nomination, his membership on interim committees is terminated
on the date of the official canvass of the primary election returns showing
that he has been defeated.

       4. Where a member’s election to the Legislature was as the nom-
inee of a political party which is selecting its nominees for the succeeding
term by primary elections, and he did not seek nomination by that party
for a place in the Legislature for the succeeding term, his membership
on interim committees is terminated on the date of the official canvass
of the results of the first primary, unless he has made it known that he
will seek re-election in some other manner than as the nominee of that
party. (The other methods for seeking re-election which would preserve
his status on interim committees pending outcome of his attempt to sacure
nomination are (1) as the nominee of some other political party. and (2)
as tha nominee of independent or nonpartisan voters in accordance with
Articles 13.50-~13.52 of the Election Code.)

       5: Membership on the interim committees is terminated imme-
diately upon the canvass of the election returns and does not continue
until a successor is appointed. A successor appointed from among tha
other members of the Legislature would not be qualified to serve if he
Hon. H. J. Blanchard,   page 4 (WW-898)



likewise had failed to secure nomination or election.

       You and Messrs.   Burkett and Conley were elected to the House
of Representatives as nominees of the Democratic Party. You have
stated that neither of you sought re-election. Yore questions ail1 be
answered with special reference to the status of these three members
of the House General Investigating Committee.

       In answer to your first question, electfon takes place in the
general election and not in party primaries, no matter how certain
election may appear to be by virtue of nomination. However, termina-
tion of membership on interim committees is based on failure to secure
nomination or election.   If a member of the Legislature~lnated
m the primary for a succeeding term, he continues to be eligible to
serve on interim committees until the official results of the general elec-
tion show that he has failed to obtain election.

       Your second question concerning the date on which the member
becomes disqualified to serve on interim committees is answered by the
holdings in Opinion S-139, summarized above.

       In your third question you ask whether members who have not
qualified for re-election are disquallfled from service during a special
session of the Legislature.   In the light of your fourth question, we take
Question No. 3 to mean whether members of the Legislature who have
become disqualified from serving on interim committees because of
failure to secure nomination or election to the succeeding term are also
disqualified from serving in sessions of the Legislature.

      Section 4 of Article III of the Constitution of Texas provides:

               “‘The members of the House of Representatives
      shall be chosen by the qualified electors, and their term
      of office shall be two years from the day of their election.*’

This provision in the Constitution fixes the length and commencement
of the terms of members of the House of Representatives, and the right
of amember to serve in sessions of the Legislature during his term of
office could not be impaired by statute. Subdivision (c) of Article 5429e
does not purport to disqualify members of the Legislature   from serving
in the legislative sessions, but only from serving on the Legislative
Budget Board, the Legislative Council, and other interim committees.
Although disqualified from serving on interim committees, a member
continues to hold office as a legislator and may serve in sessions of
the Legislature during his term of office and until his successor quali-
fies. Art. XVI, Sec. 17, Texas Constitution.
Hon. H. J. Blanchard, page 5 (WW-898)



       Question No. 4 is whether a member who is disqualified from
serving on interim committees by failure to secure nomination or
election to the succeeding term is able to serve on committees during
a caDed session. Article 5429e has no application to service on
regular standing committees of the Legislature.    We infer that this
question has reference to serving on special committees which are
authorized to act both during sessions of the Legislature and during
the intervals between sessions, and your inquiry is whether such a
committee would cease to be an “interim”’ committee during a called
session and therefore removed from the operation of Article 5429e
during the called session.

        H.S.R. No. 202 provides that the House General Investigating
Ccenmittee “‘shall have full freedom to determine the times and places
it shall meet, both during the Regular Session, any called session,
and during the interim between the adjournment of the Regular Session
of the 56th Legislature and the convening of the 57th Legislature.”
In our opinion, a committee which is authorined to function during the
interim between regular sessions does not cease to be an interim
committee within the provisions of Article 5429e during the periods of
intervening special sessions, and the disqualifications in Article 5429e
apply to service during special sessions.

       In answer to Question No. 5, if a nominee is defeated in the gen-
eral election, his disqualification to serve on interim committees occurs
when the official canvass of the general election is made.

       In Que,stion No, 6 you ask what would preclude a member from
running and being elected at the November      eneral election as an
Independent or Republican. In Opinion No. %-139 it was pointed out
that a person who has been elected to the Legislature as a nominee
of a political party is not obliged to seek re-election as that party’s
noxiinee. The opinion held, however, that within the meaning of Article
5429e a person who was elected as a party nominee and who has not
again sought that party’s nomination has failed to secure nomination
when it is officially shown that he will not~be the party nominee, unless
he has made it known that he will seek re-election in some other manner.

       As applied to the present fact situation, the date of the canvass
of the results of the first Democratfc primary on May 17, 1960, was
the date on which it was officially shown that a member not seeking
renomination of the Democratic Party would not be the pasty nominee.
If on that date the member had made it known that he would seek elec-
tion as the nominee of some other party or as an independent candidate,
hie membership on interim committees would continue for the time in
                                                                           ._.   .




Hon. H. J. Blanchard,   page 6 (WW-898)



which nomination by the other method could take place. but would
terminate upon his failure to secure nominatioa in that manner.     The
date for the Republican Party to make its noniinations for district
offices has already passed, and membership on interim committees
is not preserved through this method of nomination unless the member
has been named as the Republican nominee.    The deadline for fil&ng
aa.spplication as an independent candidate occurred on July 4, 1960
(30 days after the second primary election day). If by that date a
member seeking to become an independent candidate had not filed an
application meeting the requirements of Articles 13.50-13.52 of the
Election Code, his membership on interim committees was terminated.

       We have said (that membership on interim committees termin-
ated on the date of canvass of the fipst primary election returns if the
member was theretofore elected as the nominee of the Democratic
Party and did not seek the nomination of that party in thfs year’s
primary, unless on that date he had made it known that he would seek
election by some other method 0% nomination. Your request suggests
the possibility that the member might subsequently decide to become
aa independent candidate. This raises the question of whether, in the
event he did subsequently become a bona fide independent candidate.
he would be eligible for re-appointient    to the interim committee
on which he formerly served. In our opiaion, his candidacy would
remove the disqualification based on %ailure to secure nomination
and he would become eligible for re-appointment, or %or appointment
to other interim committees.

                               SUMMARY

               Under Article 5429e 0% Vernon’s Civil StatuUes,
      membership on interim legislative committees o%State
      Representatives who were thereto%ore elected as nom-
      inees of the Democratic Party and who did not seek
      nomination 0% that party for the next succeeding term is
      terminated on the date of the canvass of the returns 0%
      the first Democratic primary unless the member has made
      it known that he will seek election to the House or Senate
      as the nominee of some other party OP as an independeat
      candidate. If on that date the member has announced that
      he will seek nomination of some other party or as an
      independent candidate, his membership on interim com-
      mittees continues for the period in which nominatPon by
      tbe other method could take place, but terminates upon
      his failure to secure nomination in that manner. If sub-
      sequent to termmation of membership by fahre       to seek
Hon. H. J. Blanchard,   page 7   (WW-898)



      nomination in the primary election the legislator be-
      comes a candidate by some other method of nomination,
      his disqualification to serve on interim committees is
      removed and he becomes eligible for appointment to
      such committees.     If a nominee is defeated in the general
      election, his disqualification to serve on interim com-
      mittees occurs    when the official canvass of the general
      election is made. A disqualified member may not serve
      on interim committees     during special sessions of the
      Legislature.

                                            Yoaars very truly,

                                            WILL WILSON
                                            Attorney General of Texas




BHT:lmc

APPROVED:

OPINION COMMITTEE:

Gordon C. Cass, Chairman
Houghton B rownlee
3. C. Davis, Jr.
Morgan Nesbitt
J. Arthur Sandlin

REVIEWEDFORTHEATTORI’IEYGENERAL
BY: Leonard Passmore
