Untitled Texas Attorney General Opinion ( 1954 )

Hon. Robert S. Calvert
Comptroller of Public Accounts
Austin, Texas Opinion No. S-139
Re: Termination of membership of
legislators on the Legislative
Budget Board, etc., upon failure
to secure nomination or election
Dear Mr. Calvert: for a succeeding term.
Your request for an opinion reads as follows:
‘“I wish ‘to request your interpretation of House BiT&
No. 793 as passed by the 53rd Legislature (Chapter 377,
page 915, General and Special Laws, Regular Session, 1953)
as.to which members of the Legislative Budget Board and
the Legislative Council, or any other interim committees,
are included.
‘$As you know, six members of the Budget Board are
members thereof in an ‘ex officio’ manner, because they
hold certain other positions. Four members are appointed:
two Senators and two Representatives. Two members of the
Legislative Council are members thereof b?cause of the
same ‘ex officio” reason, and fifteen are appointed: five
Senators and, ten Representatives. It is my thought that the
wording of Section 1 of House Bill No. 793 would mean that
the provisions of said bill would apply only to the appointed
members of the Board and the Council, or any other interim
committees.
““I shall also appreciate your opinion as to just what
is meant by the word ‘nomination’ in Section l(c), ,particularly
as to when such failure of nomination would become effective.”
Section 1 of Chapter 377, Acts of the 53rd Legislature, Regu-
lar Session (codified as Article 5429e, Vernon”s Civil Statutes), provides:
Hon. Robert S. Calvert, page 2 (S-139)
““Section 1. That the membership of any duly ap-
pointed Senator or Representative on the Legislative
Budget Board or on the Legislative Council, or on any
other interim Committee, shall, on the following contiq-
gencies, terminate, and the vacancy created thereby
shall be immediately filled by appointment for the un-
expired term inthesame 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. m
The emergency clause of this act recites ” the importance
of reqmring that Members of the Legislative Budget Board and the Leg-
islative Council, or any other interim Committee, be Members of the
Legislature during the term of their appointment, and also for the SUC-
ceeding term of the Legislature.”
We agree with you that this statute does not appiyto uex-
officio” members of these bodies. The statute refers to “appointed”
members and requires that the vacancy be filled by appointment. Where
a Senator or Representative holds a place on one of these bodies because
he also holds some other position, such as the chairmanship of one of
the standing committees, he is not an appointive member but is a member
by virtue of the other position. The place can be held only by the chair-
man of that particular committee, and so long as he continues to be the
chairman there is no vacancy. Of course, an ex-officio membership ceases
whenever the person ceases to hold the position which gives rise to the
membership, and the same contingency which under Chapter 377 would
cause a vacancy in an appointive membership might also cause a vacancy
in an ex-officio membership (for example, cessation of membership in ’
the i~g~$l%&), but this would come about because of its ex-officio na-
ture and not because of the provisions of Chapter 377,
Your second question on termination of membership under
subdivision (c) raises a number of problems. Unless it has been termi-
nated earlier, we are of the opinion that an appointive membership is ter-
minated if the member 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
c -
Hon. Robert S. Calvert, Page 3 (S-139)
legislator is ending, regardless of whether he was a candidate for the
Legislature that year. The statute was intended to cut off appointive
memberships of all persons who would not be members of the Legis-
lafure for the succeeding term, and whether the person had or had not
sought election to the succeeding term is unimportant. The results of
the election are officially ascertained upon canvass of the returns, and
the date of termination is the date on which the official canvass reveals
the failure to secure election. Cf. Tom v. Klepper, 172 S.W. 721 (Tex.
Civ.App. 1915, error ref.); Leslie v. Griffin, 25 S,W.2d 820 (Tex.Com.
App. 1930); Ex parte Sanders, 147 Tex. 248, 215 S.W.2d 325 (1948).
Subsectioii (c) provides for an earlier termination upon
failure to secure nomination to membership in the Legislature for the
next succeeding term, To ascertain the meaning and operation of this
provision, it is necessary to consider the relationship between nom&a-
tion and election.
Thereare four different methods by which a person may
be elected to the Legislature at a general election: (1) as the nominee
of a political party through nomination at a primary election; (2) as
the nominee of a political party through nomination at a party conven-
tion; (3) as an independent or nonpartisan candidate nominated in ac-
cordance with Section 227 of the Election Code; and (4) as a write-in
candidate. It is seen that a person may be elected without having sa-
cured a “nomination.”
The appointive legislative memberships on the Budget
Board, Legislative Council, and interim committees are presently com-
posed entirely of persons who were elected as party nominees named
at a primary election by a political party which is holding primaries
t&is year. We shall discuss this question only as it applies to present
memberships. To attempt to set out the applicable rules for all possible
situations would lengthen the opinion unduly and would serve no useful
purpose at this time.
The statute presants no difficulty with regard to a member
of the Legislature who has sought renomination or nomination to the
other branch of the Legislature in a party primary. Clearly, we think,
he has failed to secure nomination within the meaning of subdivision (c)
if he is defeated at the first or second primary. This portion of the stat-
ute would be rendered entirely meaninglpss if it were held that mere
possibility of election by some other method than nomination at the pri-
mary removed him from its operation. The date of termination is the
date of the official canvass of the election returns by the party executive
committee showing that he has been defeated. See Sections 203, 205, and
214, Texas Election Code.
- . .
Hon. Rob&t S, Calvert, page 4 (S-139)
A more serious question is presented with regdrd to those
members who did not seek nomination for a place in the Legislature for
the succeeding term. In view of the fact that election may result without
nomination at a party primary and the further fact that a person is not
obliged to resort to this method of election merely because he had fos-
merly done so, it might be argued that the membership of such a person
would not terminate until the possibility of his election to a succeeding
term had been foreclosed at the general election. However, we think
the statute should be construed in the light of the well-known political
history of the State and the prevailing method of election through party
nomination. Ordinarily it can be assumed that a persoh$formerly elected
as a party nominee who does not again seek nomination by the-party does
not intend to be a candidate at the general election and, further, that he
will not be elected to a succeeding term. We believe the legislative in-
tent was that a person who was electdd as a party nominee and who has
not again sought party nomination is to be considered as having 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. Otherwise, the likelihood of his either seeking or
attaining election through some other method is so remote that the Leg-
islature could hardly have intended to permit his appointive memberships
to continue on the slight chance that he would later become a candidate
at the general election.
As to the date of termination, we think it is to be determined
by the same rule as for defeated candidates for nomination, that is, when
the canvass of the primary election returns shows that the member will
not be the party nomineea We realize that it could be forcefully contended
that the Legislature would have provided for termination of membership
on these bodies as soon as it became apparent that the individual was not
seeking nomination if the statute was intended to apply’to members who
fa,iled to seek nomination as well as to those who sought it and were de-
feated. The answer to this is that the date of termination was a matter
for decision by the Legislature and the date it has fixed is based upon
failure to :secure nomination. The fact that the Legislature might have
had good reason to provide an earlier date in these instances will not pre-
vent the operative force of the date It has provided.
We have said that the membership terminates upon canvass
of the returns of the election. Unquestionably, a vacancy in the position
occurs in the sense that the app&ting authority may proceed immediately
to fill the vacancy by appointing a successor. The language of Chapter 377
indicates a legislative intent to bring about an autombtic, complete termina-
tion of membership upon the happening of either of the stated contingencies.
It is our opinion that the member’s right to serv@ terminates immediately
and he may not continue to serve until a successor is appdfnted. In reaching
Hon. Robert S. Calve& page 5 (S-139)
this conclusion we have given diligent consideration to Article XVI, Sec-
tion 17 of the Texas Constitution and Article 18 of the Revised Civil Stat-
utes, as well as to the rule concerning holding over in office as announced
in Walker v. ,Hopping, 226 S.W. 146 (Tex.Civ.App. 1920). It is extremely
doubtful whether the word ““officers w in Section 17 of Article XVI includes
memberships of this nature. Assuming that Article 18 of the Revised
Civil Statutes would apply to vacancies arising during the term of these
positions in the absence of Chapter 377, the condlicting provision of Chap-
ter 377 would nevertheless prevail as a later enactment making an excep-
tion to the general rule stated in Article 18. Even if these memberships
come within the general constitutional and statutory rules, these rules
have no application where a vacancy arises during the term of office be-
cause of disqualification or ineligibility of the holder to continue in office.
Under Chapter 377, one of the conditions for continued appointive member-
ship on these bodies is the combinationzo% present membership in the Leg-
islature and prospective membership during the succeeding term. It is
clea’r to us that a successor appointed from among the other members of
the Legislature would not be qualified to serve if he likewise had failed to
secure nomination or election, Thus, it appears to us that we must treat
the failure to secure nomination or election as a ground for disqualification
which causes a forfeiture of membership, removing the member from the
orbit of the rules for holding over until a successor is appointed.
SUMMARY
Chapter 377, Acts 53rd Leg., R.S., 1953 (Article 5429e,
V.C.S.), whieb provides for termination o% membership of ““duly
appointed” Senators and Representatixreg on the Legis,lative
Budget Board, Legislative Council, and othel interim commit-
tees upon certain contingencies, applies to appointive member-
ships only and does not apply to ex-officio memberships.
Within the meaning of this statute, a Senator or Repre-
sentative who was previously elected as a party nominee has
failed to secure ‘“nominationw to a succeeding term if he will
not be the party nominee, regardless of whether he was or was
not a candidate for the nomination. His appointive membership
on the Budget Board, etc., terminates on the date the official
canvass of the primary election returns shows that he will not
be the nominee.
APPROVED: Yours very truly,
John Davenport JOHN BEN SHEPPERD
Reviewer Attorney General of Texas
John Atchison
Reviewer
Robert S. Trotti
First Assistant