Wentworth v. Meyer

¶1OPINION

¶2In this original proceeding, we must determine whether the Texas Constitution prevents Relator Jeff Wentworth from serving as a state senator in the Texas legislature. The legislative term would overlap, by twenty-one days, Wentworth’s previous term of appointment to the Board of Regents of the Texas State University System. The question is whether article III, section 19 of the Texas Constitution renders Wentworth ineligible because of this overlap. Wentworth denies his candidacy violates the constitution because he resigned his position on the Board long ago, and seeks mandamus relief to ensure his place on the ballot as the Republican nominee. Because we determine that Wentworth’s resignation prior to running for office places him outside the prohibí-*767tions of the constitution, we conditionally grant the writ.1

¶3I.

¶4On March 24, 1987, the Governor appointed Wentworth to the Board of Regents for a six year term that would expire on February 1, 1998. On May 10, 1988, Wentworth resigned as regent, before assuming office as a state representative on May 11, 1988, after a special election. Wentworth was re-elected to the House of Representatives in November 1988 and November 1990, and his current term as a representative would not expire until the legislature convenes on January 12, 1993, when his prospective term as state senator, should he prevail, would begin.

¶5Wentworth won the Republican nomination for State Senator from District 26 in a runoff election on April 14, 1992. On April 24, Fred Meyer, State Chairman of the Republican Party of Texas, certified to the Secretary of State that Wentworth was the Republican Party’s nominee for the office. Three weeks later, Meyer notified the Secretary of State by letter that he had determined and declared Wentworth ineligible as the Republican nominee. Meyer further informed the Secretary that the district executive committee, or the State Republican Executive Committee, would be selecting a replacement nominee for the general election. Meyer based his decision on article III, section 19 of the constitution:

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.

¶6TEX. CONST, art. Ill, § 19.

¶7II.

¶8We consider the question whether Wentworth’s resignation from the Board, four years before his victory in the recent runoff election, saves his candidacy from the prohibition of section 19. Resolution of the issue requires interpretation of the words “during the term for which he is elected or appointed.” The words support two interpretations. If the “term” which cannot overlap is the entire six-year Board term, then Wentworth cannot become a state senator. If Wentworth’s “term” ended when he resigned, then he is free to run for legislative office.

¶9In interpreting any constitutional provision, we begin with the text of the constitution. When there is doubt as to the meaning of the literal text, we must then consider the intent of the people who adopted the constitution, although the history of that intent is often difficult to discern. See Edgewood v. Kirby, 777 S.W.2d 391, 394 (Tex.1989) (citation omitted). We remain aware that the constitution was ratified to function as an organic document to govern society and institutions as they evolve through time. Id.These general principles are buttressed by another, more specific, rule of interpretation in disputes involving elections: Any constitutional or statutory provision which restricts the right to hold office must be strictly construed against ineligibility. Brown v. Meyer, 787 S.W.2d 42 (Tex.1990). This rule is particularly important where, as here, the language is susceptible of varied interpretations.

¶10In Dawkins v. Meyer, 825 S.W.2d 444 (1992), we discussed the purpose of section 19. The provision bolsters the separation of powers within our state government. Specifically, the section protects the legislature from undue influence by certain officeholders. Id. at 448; see also TEX. CONST, art. Ill, § 8, interp. commentary (Vernon 1955) (commentary authored by A.J. Thomas, Jr. and Ann Van Wymen Thomas).

¶11It is consistent with this purpose to interpret section 19 as prohibiting those officeholders from sitting in the legislature during the time they hold their offices. On the other hand, the purpose of section 19 is not advanced by denying legislative office to someone who abandons his office four *768years before seeking a legislative seat. That this is so is illustrated by the case before us today. Wentworth can exert no influence over the legislature by virtue of his former position as a regent, for he resigned that position four years ago. It was filled and is now occupied by someone else. Moreover, Wentworth has already served two terms in the legislature as a member of the House of Representatives. The purpose of section 19 cannot be fostered by an interpretation that denies this former regent the opportunity to run for the state senate.

¶12III.

¶13We are aware that the views we express today conflict with previous opinions of this court. In Lee v. Daniels, 377 S.W.2d 618 (Tex.1964), a case remarkably like the one we consider today, we construed section 19 in favor of ineligibility. In Lee, a county commissioner resigned office to run for the house of representatives. His term as commissioner overlapped the house term by nearly two months. A petition for writ of mandamus was filed to remove his name from the ballot. We conditionally granted the writ. Id. at 620. It made no difference that the office seeker in Leeresigned prior to seeking office. We stated that it is the term which controls, and it makes no difference when the office-holder resigns, even if he resigns only a day after he begins holding office. Id. at 619; see also Kirk v. Gordon, 376 S.W.2d 560 (Tex.1964) (district attorney who proffered letter of resignation could not run for state representative).

¶14This interpretation of section 19 is at odds with the rule that requires us to strictly construe election law restrictions against ineligibility. The interpretation narrows, rather than expands, the potential for eligibility. Because we are bound to decide in favor of eligibility whenever possible, we must reevaluate our opinion in Lee.

¶15We initially review our contention that, by adopting the disputed language of section 19, the framers intended to insure that “term of office” meant an entire term, not just the officeholder’s tenure in the term. Without this meaning, we said, the language is mere surplusage. Lee, 618 S.W.2d at 620. The interpretation is plausible, but it is only one possible suggestion for adoption of the phrase. Addition of the critical language could carry other meanings. The phrase could mean that officeholders are disqualified only during their tenure in office, and not perpetually. Given the two interpretations, and absent an adequate history of the constitutional convention to guide us, we must advance the purpose of section 19 and adhere to the rule requiring us to decide in favor of eligibility. We can no longer view the language at issue as preventing eligibility where an officeholder has resigned before running for the legislature.

¶16We also review the authority cited in Lee. We relied upon the constitutions of other states and three out-of-state cases to support our holding. Our current research, however, reveals no out-of-state constitutional provisions which prevent a officeholder from running for the legislature once resigning office. As for the three cited cases, none involve either provisions or situations which mirror those we consider today. See generally Rowe v. Tuck, 149 Ga. 88, 99 S.E. 303 (1919) (statute prohibiting simultaneous service in municipal offices); State ex rel. Childs v. Sutton, 63 Minn. 147, 65 N.W. 262 (1895) (constitutional provision prohibiting legislators from holding other offices); Baskin v. State of Oklahoma, 107 Okla. 272, 232 P. 388 (1925) (constitutional prohibition against legislators receiving gubernatorial appointments).

¶17Lee v. Daniels and Kirk v. Gordon adopt an interpretation of section 19 which restricts eligibility without adequate support in the language of the section or its purpose. For this reason, and to the extent they conflict with our decision today, these cases are overruled.

¶18We do not, however, overrule or disturb in any way our holding and opinion in Dawkins v. Meyer, 825 S.W.2d at 448. The facts and issue in that case were entirely different than those presented here. Daw-*769kins was argued and decided on the issue whether the office which prevented Daw-kins’ candidacy was lucrative within the meaning of section 19. Unlike Wentworth, when Dawkins moved for leave to file the petition for writ of mandamus, she had not resigned the office and had expressed no intent to resign.

¶19IV.

¶20Wentworth resigned his position as a member of the Board of Regents of the Texas State University System years before he ran for the Senate. During part of the intervening years, he served as a state representative. His position as regent was filled by someone else. To allow Went-worth to take his seat as a senator does not violate either the express language or the purpose of article III, section 19 of the Texas Constitution. The language does not prevent those who have resigned from their offices from running for the legislature. The purpose of the provision, that is, to maintain separation of the powers of our government, is not served by excluding from the legislature those who hold none of the offices enumerated in section 19.

¶21We conclude that Wentworth is not ineligible to hold office in the Legislature under article III, section 19, that Meyer was in error in deciding and notifying the Secretary of State otherwise, and that Meyer should withdraw that declaration of ineligibility. We assume that Meyer, as the State Chairman of the Republican Party, and John Hannah, as the Secretary of State, will act in accord with this opinion. The writ will issue against Meyer only if he fails to act in accordance with this opinion.

¶23concurring.

¶24For the reasons stated in my dissenting opinion in Dawkins v. Meyer, 825 S.W.2d 444, 451 (Tex.1992) (Gonzalez, J., dissenting), I concur in the judgment of the Court and in the decision to overrule Kirk v. Gordon, 376 S.W.2d 560 (Tex.1964) and Lee v. Daniels, 377 S.W.2d 618 (Tex.1964).1 As a matter of constitutional construction, equal protection and First Amendment rights, a person who resigned an appointed office over five years ago should be permitted to run for the legislature.

¶25A restriction on the possible field of candidates infringes not only on the rights of the person seeking office, but also on the right of the people to select the candidate of their choice. For this reason the analysis must begin with the presumption “that constitutional provisions which restrict the right to hold public office should be strictly construed against ineligibility.” Brown v. Meyer, 787 S.W.2d 42, 45 (Tex.1990); see also Sears v. Bayoud, 786 S.W.2d 248, 251 (Tex.1990). Therefore, it follows that if a constitutional provision uncertain of meaning is susceptible of two reasonable interpretations, the least exclusionary must be utilized.

¶26Article III, section 19 of the Texas Constitution provides that:

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.

¶27Tex. Const. Art. III, § 16 (emphasis added). The Court ignored the presumption of eligibility in Lee, instead, holding that a resignation did not affect eligibility if there was any overlap between the term of the previous office and the seat in the legislature sought by the officeholder. Justice Steak-ley, joined by Justice Culver, disagreed:

*770It is my view that Section 19 merely carries the presupposition that a person will assume and occupy an office for the term to which he has been elected or appointed, and the phrase “during the term for which he is elected or appoint- . ed” negates any basis for the contention that a person once a judge, or a Secretary of State, or an Attorney General, or a clerk of any court of record, or the holder of a lucrative office under the United States, or this State, or any foreign government, remains ineligible to the Legislature after the completion of the term for which he is elected or appointed.

Moreover, I am unable to see how ineligibility pertaining to office in the general class to which Section 19 applies, i.e., holders of lucrative offices, can exist in the absence of an actual holding of the office. The sine qua non of ineligibility pertaining to this class is the holding of office. If a person is not holding a lucrative office at the time in question, how can Section 19 apply?

¶28377 S.W.2d at 621. How indeed can section 19 apply to one who not only has not held that office for four years, but has served in the legislature during the interim?

¶29The constitutional history cited by Chief Justice Phillips in his dissent does little to illuminate original intent. The fact that the phrase “during the term for which he is elected or appointed” was not always there, but was added at some point, does not make ineligibility a more probable interpretation than the eligibility interpretation of Justice Steakley.2

¶30As I expressed in Dawkins, I have concerns that the restriction on running for office represented by Leeis fraught with constitutional problems. 825 S.W.2d at 452. The United States Supreme Court analyzed article III, section 19 in Clements v. Fashing, 457 U.S. 957, 102 S.Ct. 2836, 73 L.Ed.2d 508 (1982). In Clements, several justices of the peace who wished to run for the legislature challenged article III, section 19 on First Amendment and equal protection grounds. A plurality of the court held that section 19 survived the minimal scrutiny of the “rational relationship” test, and therefore did not violate the United States Constitution. 457 U.S. at 971, 102 S.Ct. at 2848. The Court carefully limited its opinion to the facts before it, to judges holding office while seeking a seat in the legislature, and expressly stated that its analysis would not necessarily vindicate article III, section 19 as applied to other offices. The Court concluded that a provision which precludes a judge from holding office and deciding cases while at the same time seeking votes for the legislature was rationally related to the legitimate state interest in the integrity of the judiciary.

¶31The Court identified the following as possible purposes of article III, section 19: 1) Texas’ interest in maintaining the integrity of the judiciary; 2) the likelihood that the demands of a political campaign would tempt a judge to devote less than was required by his or her current office; and 3) the need to discourage a judge from leaving office before the end of the term. 457 U.S. at 968, 102 S.Ct. at 2846. As applied to a member of a board of regents, I do not believe that section 19 bears a rational relationship to these purposes. The prohibition only applies to those running for the legislature. A current officeholder is free to resign and run for any other office in the state. Only an officeholder whose term happens to overlap with that of the legislature is prohibited from running. An officeholder whose term expires even one day before the legislature’s term begins may hold and exercise office while campaigning. See Chapa v. Whittle, 536 S.W.2d 681 (Tex.Civ.App.—Corpus Christi 1976, no writ).

¶32Wentworth is a case in point. It is not his current position that would, under the dissent’s view, disqualify him, but the office he held prior to that. None of the legitimate state interests found by the United States Supreme Court are advanced one whit by disqualifying Wentworth.

¶33*771I agree with Justice Brennan, as he stated in his dissent in Clements, that article III, section 19, as interpreted in Lee, advances only the interests of incumbent legislators, not any legitimate state interest. “The only conceivable state interest in barring these candidacies would be the purely impermissible one of protecting Texas legislative seats against outside competition.” Clements, 457 U.S. at 979, 102 S.Ct. at 2852. (Brennan, J., dissenting).

¶34This constitutional analysis of the possible purposes of article III, section 19 brings us back to the original intent of the delegates to the convention for the Texas Constitution of 1876. We cannot ascribe to them such an impermissible intent. Moreover, in light of the populist mood of the convention, it is highly unlikely the delegates intended to make incumbent protection a constitutional guarantee. See Watts & Rockwell, The Original Intent of the Education Article of the Texas Constitution, 21 St. MaRy’s L.J. 771, 785-91 (1990) (discussing the role the Grange movement played in the convention, and its distrust of the governmental establishment, in particular, the legislature).

¶35Today’s opinion should not, however, be viewed as license to hang onto one office while prospecting for another. A chairman may not certify an ineligible candidate for the primary ballot. Tex.Elec.Code §§ 172.-029, 172.057. A chairman may refuse to receive and reject the application to be placed on the primary ballot of one who is ineligible. See Hall v. Baum, 452 S.W.2d 699 (Tex.1970). One who has filed for an office without resigning a current office with an overlapping term risks disqualification which later resignation after the filing deadline would not cure.

¶36Finally, I take issue with the majority on one facet of its opinion. It states that the Court “assume[s] ... John Hannah, as the Secretary of State, will act in accord with this opinion.” 839 S.W.2d at 769. Although not a party, Secretary Hannah has filed a response indicating that he has no interest in the merits of this dispute and that he is ready to cooperate with the Court in the performance of his duties. The Court’s statement is unnecessary and can be viewed by some as a criticism of Mr. Hannah’s performance of his duties. I would delete this statement from the opinion.