Untitled Texas Attorney General Opinion

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
July 9,2004
The Honorable Mary Denny Opinion No. GA-02 13
Chair, Committee on Elections
Texas House of Representatives Re: Proper procedure, under article III, section
Post Office Box 2910 24a of the Texas Constitution, for the Speaker
Austin, Texas 78768-29 10 of the House of Representatives to nominate
individuals to serve as members of the Texas
Ethics Commission (RQ-0194-GA)
Dear Representative Denny:
You ask about the proper procedure, under article III, section 24a of the Texas Constitution,
for the Speaker of the House of Representatives to nominate individuals to serve as members of the
Texas Ethics Commission (the “Commission”).’
Article III, section 24a provides, in relevant part:
(a) The Texas Ethics Commission is a state agency consisting
of the following eight members:
(1) two members of different political parties
appointed by the governor from a list of at least 10
names submitted by the members of the house of
representatives from each political party required by
law to hold a primary;
(2) two members of different political parties
appointed by the governor from a list of at least 10
names submitted by the members of the senate corn
each political party required by law to hold a primary;
‘Letter from Honorable Mary Denny, Chair, House Committee on Elections, to Honorable Greg Abbott, Texas
Attorney General (Mar. 5, 2004) (on file with Opinion Committee, also available at http://www.oag.state.tx.us)
[hereinafter Request Letter]; see aZso Letters fromHonorable Mary Denny, Chair, Committee on Elections, to Honorable
Greg Abbott, Texas Attorney General (June 25,2004 and July 7,2004).
The Honorable Mary Denny - Page 2 (GA-0213)
(3) two members of d@erentpoliticalparties
appointed by the speaker of the house of
representatives from a list of at least 10 names
submitted by the members of the house Ji-om each
political party required by law to hold a primary;
and
(4) two members of different political parties
appointed by the lieutenant governor from a list of at
least 10 names submitted by the members of the
senate from each political party required by law to
hold a primary.
TEX. CONST.art. III, $ 24a(a)(l-4) (emphasis added). You are here concerned about subsection
(a)(3) regarding appointments by the Speaker of the House of Representatives, and particularly its
application with respect to the most recent appointment of a Republican to the Commission by
former Speaker James E. “Pete” Laney. Request Letter, supra note 1, at 1.
In construing a constitutional provision, the duty of a court, and the practice of this office,
is to ascertain and give effect to the plain intent and language of the framers of the provision and the
people who adopted it. Gragg v. Cayuga Ind. Sch. Dist., 539 S.W.2d 861, 866 (Tex. 1976). In
construing article III, section 24a, “we give effect to its plain language. . . . We presume the
language of the Constitution was carefully selected, and we interpret words as they are generally
understood.” City ofBeaumont v. Bouillion, 896 S.W.2d 143,148 (Tex. 1995); see also Armbrister
v. Morales, 943 S.W.2d 202, 205 (Tex. App.-Austin 1997, no writ) (court gives words of
constitution “their natural, obvious, and ordinary meanings as they are understood by the citizens
who adopted them”).
The requirement set forth in subsection (a)(3) of article III, section 24a - that the members
of the Commission selected by the Speaker be equally divided between the political parties required
by law to hold a primary - evidences the clear intent of both the legislators who proposed, and the
voters who adopted, that provision to establish a bipartisan commission. Only an equally divided
Commission is able to demonstrate the appearance of political balance necessary to avoid its being
used as a tool by one party or the other. The composition of the Commission established by article
III, section 24a is obviously meant to ensure political neutrality in such a way as to buttress the
integrity of the Commission and its decision-making process and therefore to help assure the
confidence of the public.
Thus, bipartisanship is written into the very fabric of the Commission. The plain language
of article III, section 24a requires that membership be divided equally between Republicans and
Democrats. As applied to appointments made by the Speaker of the House, the intent of the
legislature and the voters in adopting this constitutional provision is fulfilled by giving effect to the
provision’s final clause, which states that the Speaker shall make his appointments “from a list of
The Honorable Mary Denny - Page 3 (GA-0213)
at least ten names submitted by the members of the House from each poli,tical party required by law
to hold a primary.” TEX. CONST. art. ITI,5 24a(a)(3).
Subsection (a)(3) of article III, section 24a plainly directs that the Republican members
submit for consideration to the Speaker at least ten names and that the Democratic members do
likewise, for the appointment of a member of their respective political parties. To construe this
provision to permit the Speaker to make his Republican appointment fi-om names submitted by any
House member, rather than from only Republican House members, would effectively vitiate the
provision’s last clause, which requires the Speaker to make his appointments from “a list of at least
ten names submitted by members of the House from each political party.” TEX. CONST. art. III,
5 24a(a)(3) (emphasis added). By contrast, to require that the Speaker select his Republican
appointee only ti-om names submitted by Republican House members accomplishes the intent of the
legislature in proposing the amendment, and the intent of the voters in adopting it: to create a
Commission that achieves political balance, one that effectuates a genuine bipartisanship.
You also ask whether additional language may be appended to subsection (a)(3), so that it
would read as follows:
two members of different political parties appointed by the speaker
of the house of representatives from a list of at least 10 names
submitted by the members of the house from each political party
required by law to hold a primary, “acting together in some form,
whether byformal caucus vote or through some sort ofjoint action.”
Request Letter, supra note 1, at 2 (emphasis added). The Supreme Court of Texas has held that the
rules of statutory construction may be used in the interpretation of constitutional provisions. See
Booth v. Strippleman, 61 Tex. 378 (1884). In Fitzgerald v. Advanced Spine Fixation Systems, Inc.,
996 S.W.2d 864 (Tex. 1999), the Texas Supreme Court said that a court “may add words into a
statutory provision only when necessary to give effect to clear legislative intent. . . . Only truly
extraordinary circumstances showing unmistakable legislative intent should divert us from enforcing
the statute as written.” Id. at 867 (emphasis added).
The quoted italicized language does not appear in the Texas Constitution. To require that
a list be submitted in such a manner that members of a party “act together in some form, whether by
formal caucus vote or through some sort of joint action” would require this office, or the courts, to
rewrite the Texas Constitution by adding language that does not appear there. This we may not do.
Similarly, we can find nothing in the constitution, the legislative history proposing the referenced
amendment, or elsewhere, supporting the conclusion that the intent of section 24a was to require that
the names be submitted through some kind of “joint action” by members of a party. To find
otherwise could be construed as an unconstitutional infringement on a right specifically granted to
a member of the House by the Texas Constitution.
As an example of why a “formal caucus” may not be inferred from the constitutional
language, we note that the term “legislative caucus” is referred to throughout the Election Code, and,
The Honorable Mary Denny - Page 4 (GA-02 13)
in one section, it is specifically defined.* Consequently, the lack of reference in subsection (a)(3)
to a “legislative caucus” precludes our construing the constitutional language to limit the Speaker
to appointing a nominee from a list of names submitted by a legislative caucus.
As to the issue of whether former Speaker Laney correctly followed a nominating procedure
that comports with article III, section 24a, that matter appears to be in dispute. Compare Brief from
Honorable Kenny Marchant, Chair, Committee on State Affairs, Texas House of Representatives,
to Nancy Fuller, Chair, Opinion Committee, Office of the Attorney General (Apr. 15,2004) (on file
with Opinion Committee), with Brief from Honorable James E. “Pete” Laney, Texas State
Representative, to Honorable Greg Abbott, Texas Attorney General (Apr. 16,2004) (on file with
Opinion Committee). This office is not authorized to adjudicate factual disputes. See, e.g., Tex.
Att’y Gen. Op. Nos. GA-01 86 (2004) at 5 (stating that this office does not resolve questions of fact);
JC-0020 (1999) at 2 (factual disputes may not be resolved in the opinion process); M-l 87 (1968) at
3 (attorney general is unable to make factual determinations); WW-277 (1957) at 6 (attorney general
does not pass upon questions of fact). What is abundantly clear, however, is that any appointment
by the Speaker to the Commission that does not comport with the constitutional requirements set
forth in article III, section 24a is invalid.
% this section, ‘legislative caucus’ means an organization that is composed exclusively of members of the
legislature, that elects or appoints officers and recognizes identified legislators as members of the organization, and that
exists for research and other support ofpolicy development and interests that the membership hold in common. The term
includes an entity established by or for a legislative caucus to conduct research, education, or any other caucus activity.
An organization whose only nonlegislator members are the lieutenant governor or the governor remains a ‘legislative
caucus’ for purposes of this section.” TEX. ELEC. CODE ANN. Q 253.0341(e) (Vernon Supp. 2004).
The Honorable Mary Denny - Page 5 (GA-0213)
SUMMARY
Subsection (a)(3), article III, section 24a of the Texas
Constitution requires that the Speaker of the House of
Representatives appoint a Republican to the Texas Ethics
Commission from a list of at least ten names submitted by
Republican members of the House; and that he appoint a
Democrat from a list of at least ten names submitted by
Democratic members of the House. Nothing in article III,
section 24a requires that the names be submitted by formal
caucus or through any other sort of joint action of a political
party. Rather, the Texas Constitution accords to individual
members the right to submit to the Speaker the names of
suggested appointees.
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General, Opinion Committee