Honorable Bob Bullock                 Opinion No. M-1121
Secretary of State
State Capitol B;~r~~ng                Re:   Construction of Subdivision
Austin, Texas                               3 of Article 3.04, Texas
                                            Election Code.
Dear Mr. Bullock:
          Your request for an opinion on the above subject
matter asks the following questions:
          "1 . Is the present Bidalgo County Democratic
     Chairman eligible to hold both the party office
     of county chairman and,the office of trust as a
     Regent of Pan American University?
          “2 . If he may not hold both positions, in
     which position is there a vacancy and how must
     the vacancy be filled?
            “3.Since absentee balloting has already
     begun, the present chairman appears on the ballot.
     In the event he is elected, is there a vacancy in
     the position of county chairman?
          “4.  Does Article 3.04, Subdivision 3, of the
     Texas Election Code contravene either the Consti-
     tution or the laws of the United States or of
     this State?"
          Subdivision 3 of Article 3.04, Texas Election Code,
reads as follows:
          "No one shall act as chairman or as member
     of any district, county, or city executive committee
     of a political party who is not a qualified voter,
     or who is a candidate for public office, or who
     holds any office of profit or trust, either under
     the United States or this state, or any city or
     town in this state."
            Section 3 of Article I of the Constitution of Texas
provides:
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Hon. Bob Bullock, page 2       (M-1121)


          "ALL FREE MEN HAVE EQUAL RIGHTS. -- All
     free men, when they form a social compact, have
     equal rights, and no man, or set of men, is en-
     titled to exclusive separate public emoluments,
     or privileges, but in consideration of public
     services."
          The Supreme Court of Texas in Burroughs v. Lyles, 142
Tex. 704, 181 S.W.Zd 570 (19441, held that the protection pro-
vided in Section 3 of Article I of the Texas Constitution applies
to political rights. The court held at 181 S.W.Zd 574:

         "Article I, Section 3, of the Constitution
     guarantees to all persons equality of rights. This
     provision of the Constitution was designed to pre-
     vent any person, or class of persons, from being
     singled out as a special subject for discriminating
     or hostile legislation. 9 Tex.Jur., p. 551, s 115.
     This principle of equality also applies   to political
     rights.  9 Tex.Jur., p. 552 S116.    Under the fore-
     going provision of the Constitution the Legislature
     has the power to adopt any classification it sees
     fit, provided there is a reasonable basis for such
     classification. Ex parte Faison, 93 Tex.Cr.R. 403,
     248 S.W. 343; Lossing v. Hughes, Tex.Civ.App., 244
     S.W. 556; Friedman v. American Surety Co. of New
     York, 137 Tex. 149, 151 S.W.Zd 570.
          "The statute here involved purports to apply
     only to 'executive or administrative' officers, and
     in the second paragraph expressly exempts members
     of the Legislature and the Judiciary. The dis-
     crimination is apparent, and we can perceive no
     reasonable basis for the classification. The Act
     violates the Constitution, and is therefore void."
          In Turner v. Fouche, 396 U.S. 346 (1970), the court
held:
          "The State may not deny to some the privilege
     of holding public office that it extends to others
     on the basis of distinctions that violate federal
     constitutional guarantees."
          In construing the provisions of Section 3 of Article
I of the Constitution of Texas and the Fourteenth Amendment to
the Constitution of the United States, it was held in Rucker v.

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Hon. Bob Bullock, page 3      (M-1121)



State, 342 S.W.Zd 325, 327 (Tex.Crim. 1961):
          II
               . As these provisions have been con-
                   .   .

     strued by the highest courts of this state as well
     as by the Supreme Court of the United States, a
     state law is not repugnant to either constitutional
     provision so long as unequal treatment of persons
     is based upon a reasonable and substantial classi-
     fication of persons. Unequal treatment of persons
     under a state law which is founded upon unreason-
     able and unsubstantial classification constitutes
     discriminatory state action and violates both the
     state and federal constitutions." (Citing numerous
     authorities).,
The Court concluded:
          "There appears no reasonable and substantial
     classification of persons which justifies the
     imposition,of a $25 fine upon peddlers, salesmen,
     and solicitors and a $200 fine upon all other
     persons for the same act."
          Applying the foregoing principles to the provisions of
Subdivision 3 of Article 3.04, Texas Election Code, it is noted
that an officeholder under the State or United States is not
prohibited from holding any political office; on the contrary,
its provisions apply only to certain specific party offices.
Furthermore this prohibition applies to all offices of profit
or trust and is not limited to incompatible duties.
          Under the test prescribed by the foregoing cases we
can perceive of no reasonable basis for the classification con-
tained in Subdivision 3 of Article 3.04 of the Texas Election
Code. It was held in Starns v. Malkerson, 326 F.Supp. 234
(1970):
           "Our initial concern is to determine the
      standard we must apply in evaluating the classi-
      fication made by the regulation. When the dis-
      crimination created by a statute or regulation
      infringes on a person's fundamental rights, the
      Supreme Court has said that it is not afforded
      the deference usually given to the judgment of
      state legislatures. See, e.g., Kramer v. Union
      Free School District No. 15, 395 U.S. 621, 627,
      89 S.Ct. 1886, 23 L.Ed.Zd 583 (1969); Harper v.

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Hon. Bob Bullock, page 4         (M-1121)


    Virginia State Board of Elections, 383 U.S. 663,
    86 s.Ct. 1079, 16 L.Ed.Zd 169 (1966). The test in
    such a case is not whether there is a 'rational
    basis' for the distinctions made, but rather
    whether the distinctions are necessary to promote
    a 'compelling state interest'. Kramer v. Union
    Free School District No. 15, supra, 395 U.S. at
    627-620, 89 S.Ct. 1886. On the other hand, when
    the classification does not affect a fundamental
    right, its constitutionality is to be judged on
    the basis of whether the distinctions drawn by
    the statute have some rational relation to a
    legitimate state interest. See, e.g., McGowan
    v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.Zd
    393 (1961); Lindsley v. Natural Carbonic Gas Co.,
    200 U.S. 61, 31 S.Ct. 337, 55 L.Ed. 369 (lgll)."
          Applying the above principle to the statute we are un-
able to discern any compelling state interest which is served by
making the statute applicable to the chairman and members of a
district, county, or city executive committee of a political
party and not applicable to the chairman or members of a State
executive committee or any other officer of a political party.
Nor do we find any reasonable basis for the prohibition when
the duties of such political offices are compatible with the duties
of the State governmental offices, and the statutory provision
thus is unconstitutionally overbroad.
          It is therefore our opinion that the provisions of
Subdivision 3 of Article 3.04, Texas Election Code, violate the
provisions of Section 3 of Article I of the Constitution of Texas
and the Fourteenth Amendment to the United States Constitution.
          In view of our holding it is,unnecessary to answer your
remaining questions,
                           SUMMARY

          The provisions of Subdivision 3 of Article
     3.04, Texas Election Code, prohibiting a person
     holding any office of profit or trust under the
     United States or this State or any city or town
     in this State from serving as chairman or as a
     member of any district, county, or city executive
     committee of a political party is in violation of
     Section 3 of Article I of the Constitution of Texas


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Hon. Bob Bullock, page 5      (M-1121)




    and the Fourteenth Amendment to the United States
    Constitution.

                                Very t*tilyyours,




Prepared by John Reeves
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen; Co-Chairman
J. C. Davis
Malcolm Quick
Bill Campbell
Jack Goodman
SAMUEL D. MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant

NOLA WHITE
First Assistant




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