Meyer v. Brown , 782 S.W.2d 315 ( 1989 )

DUNN, Justice,

dissenting.

I respectfully dissent. In my opinion, Senator Brown is eligible to run for attorney general in 1990 because retirement benefits are not emoluments of office.

I believe that constitutional provisions such as the Texas emoluments clause do not apply to pension benefits. See, e.g., Campbell v. Kelly, 157 W.Va. 453, 202 S.E.2d 369, 377 (1974). Other courts have properly defined “emolument” as a benefit creating an Immediate pecuniary gain. See, e.g., State ex rel. Todd v. Reeves, 196 Wash. 145, 82 P.2d 173 (1938). A retirement benefit, when it is a contingent benefit that vests only after years of service, is not an emolument. Id.

Any constitutional or statutory provision that restricts the right to seek public office should be construed against ineligibility. Strake v. First Court of Appeals, 704 S.W.2d 746, 750 (Tex.1986) (Gonzalez, J., dissenting) (citing Hall v. Baum, 452 S.W.2d 699, 702 (Tex.1970), and Willis v. Potts, 377 S.W.2d 622, 623 (Tex.1964)). Under this rule of construction, we should conclude that an emolument does not include such contingent benefits as are provided by the Texas retirement system.

Although the Strake majority adopted an expansive definition of emoluments, that decision does not compel us to find that Senator Brown is barred from running for attorney general in 1990. In Strake, the supreme court held that any increase in the salaries of elected officials triggered the provisions of our emoluments clause. 704 S.W.2d at 748. The holding in Strake was limited to the issue before the court — compensation payable in the present. Strake did not address contingent retirement benefits. I do not believe that we should extend Strake today.

The majority concludes that Senator Brown’s possible receipt of additional benefits at retirement bars him from running for attorney general in 1990. I would hold that the possible receipt of future benefits is irrelevant to the question of whether Senator Brown or any other Texas senator is eligible for the office of attorney general in 1990. The emoluments clause applies only to an office that a senator seeks during his unexpired term. Tex. Const, art. Ill, § 18. The emoluments clause does not make a senator ineligible in cases such as this one, because Senator Brown will not receive any retirement benefits during his current, unexpired term. Holding to the contrary, as does the majority, extends the emoluments clause well beyond its intended reach.

I share the majority’s concern that an inflexible application of the emoluments clause leads to arbitrary and unreasonable results. Because I do not believe that the present state of the law mandates such a result, I dissent.