Untitled Texas Attorney General Opinion ( 2011 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
August 12, 2011
The Honorable Joe Deshotel Opinion No. GA-0880
Chair, Committee on Business and Industry
Texas House of Representatives Re: Whether a member of the Legislature may
Post Office Box 2910 serve as the state chairman of a political party
Austin, Texas 78768-2910 (RQ-0965-GA)
Dear Representative Deshotel:
You ask whether, under articles XVI, section 40, and ill, section 19, the Texas Constitution
precludes a member of the Legislature from serving as the state chairman of a political party.l
Article XVI, section 40 provides, in relevant part:
(d) No member ofthe Legislature ofthis State may hold any
other office or position ofprofit under this State, or the United States,
except as a notary public if qualified by law.
TEX. CONST. art. XVI, § 40(d) (emphasis added). Article ill, section 19 declares:
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.
!d. art. ill, § 19 (emphasis added). Thus, we must determine whether the state chair of a political
party holds "any other office or position of profit under this State" or "a lucrative office under ...
this State."
iLetter from Honorable Joe Deshotel, Chair, House Committee on Business and Industry, to Honorable Greg
Abbott, Attorney General of Texas (Apr. 20, 2011), https:l!www.oag.state.tx.us!opinlindex_rq.shtrnl ("RequestLetter").
The Honorable Joe Deshotel - Page 2 (GA-0880)
The Texas Supreme Court has determined that the state chairman of a political party does not
hold an office or position "under this State."z In 1916, the court held that "[plolitical parties are
political instrumentalities. They are in no sense governmental instrumentalities." Waples v.
Marrast, 184S.W.180, 184 (Tex. 1916),overruledinpartonothergrounds,Bullockv. Calvert,480
S.W.2d 367, 370 (Tex. 1972); accord Koy v. Schneider, 218 S.w. 479, 480 (Tex. 1920); Tex. Att'y
Gen. Op. No. JC-0562 (2002) at 2 ("under Texas law a political party is not a state or governmental
agency"); Moreover, the Texas Supreme Court has declared that "officers of a political party, such
as members of a party executive committee, are not governmental officers, even when provided for
by statutory law." Wall v. Currie, 213 S.W.2d 816, 819 (Tex. 1948); see also Carter v. Tomlinson,
227 S.W.2d 795,799 (Tex. 1950) ("[olfficers of a political party, such as chairmen of the County
Executive Committees and precinct committeemen, although provided for by election laws, are not
regarded as public or governmental officers"); Tex. Att'y Gen. Op. No. JC-0562 (2002) at 2-3
("officers of a political 'party ... are not public or governmental officers,,). 3
Because the state chairman of a political party does not hold an office or position under this
State: neither article ill, section 19, nor article XVI, section 40(d) of the Texas Constitution
prohibits a member of the Legislature from serving in such a position. 5 As a result, we need not
determine whether the chairman holds either a "position of profit" or a "lucrative office."
2A brief attached to your request letter states that the position at issue here-state chairman of a political
party-is a non-compensated position. See Brief from Renea Hicks, Law Office of Max Renea Hicks at 2 (attached to
Request Letter).
3By statute, in order to serve as a county or precinct chair of a political party, a person must, inter alia, not "be
the holder of, an elective office ofthe federal, state, or county government." TEx. Ellie. CODE ANN. § 161.005(a) (West
2010). But no statute prohibits an elected state official from serving as the state chair of a political party. Clearly, the
Legislature knows how to prohibit such dual service, but has not done so in the situation you present. See Tex. Att'y
Gen. Op. No. GA-0779 (2010) at 3 (citing FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 884-85 (Tex.
2000) for the proposition that the Legislature knows how to enact a law effectuating its intent).
4Neitherdoes common-law incompatibility apply to your question. II is well established that both positions must
be public offices in order for "conflicting loyalties" incompatibility to be applicable. Tex. Att'y Gen. Op. Nos. GA-0350
(2005), GA-0169 (2004), JM-1266 (1990); Tex. Att'y Gen. LOs-96-148, 95-029, 93-027.
'We overrule, to the extent of conflict, Letter Opinion 95-073, which states that a political party in its role of
conducting the Texas primary elections functions as an agency of the state. Tex. Att'y Gen. LO-95-073, at 3.
The Honorable Joe Deshotel - Page 3 (GA-OSSO)
SUMMARY
Because the state chairman of a political party does not hold
an office or position under this State, a member of the Legislature is
not barred from serving as the state chairman of a political party
under either article ill, section 19 or article XVI, section 40(d) of the
Texas Constitution.
Very truly yours,
Attorney General of Texas
DANIEL T. HODGE
First Assistant Attorney General
DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel
JASON BOATRIGHT
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General, Opinion Committee