Attorney General Opinion WW-0898

THE AITORNEYGENERAL OPTE~AS AUSTIN 1% TEXAS WVILL WILSON August 4, 1960 *TTORNE~GENERAL Honorable H. J. Blanchard. Chairman Opinion No. WW-898 General Investigating Committee House of Representatives Re: Great Plains Life Building Lubbock, Texas Qualifications of Members of the House of Representa- tives to serve on interim committees. Dear Mr. Blanchard: As Chairman of the House General Investigating Committee created by H.S.R. 202, 56th Legislature, Regular Session, you have requested an opinion as to the status of three members of the Com- mittee in view of the provisions of Article 5429e, Vernon’s Civil Statutes, which reads as follows: “The membership of any duly appointed Senator or Representative on the Legislative Budget Board or on the Legislative Council, or on any other interim Com- mittee, shall, on the following contingencies. terminate, and the vacancy created thereby shall be immediately filled by appointment for the unexpired term in the same 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.” Your opinion request reads in part as follows: “I am advised that on September 9, 1954. the Honorable John Ben Shepperd, then Attorney General of Texas, in Opinion No. S-139, rendered an opinion to the effect that members of the House of Representatives Hon. H. J. Blanchard, page 2 (WW-898) appointed on interim committees were disqualified from service on said committees after the official canvass reflected that they were not re-elected. “This request is for the purpose of clarifi- cation of several questions, to-wit: “(1) Is a member who is nominated in the primary assured of election, or must he wait until the November General Election? “(2) On what date does the member become disqualified? “(3) If a special session of the Legislature is called, are members who have not qualified for re- election disqualified from service during the special session? “(4) If the answer to No. 3 is No, is the mem- ber so disqualified able to serve on committees during the called session? “(5) If a Democratic nominee becomes dis- qualified in the event of defeat by an Independent or Republican candidate, does such disqualification take place at the official canvass following the November elections ? “(6) What would preclude a member from running and being elected at the November General Election as an Independent or Republican? “I would appreciate your prompt attention to this matter, inasmuch as the Hon. Joe Burkett, Carl Conley and I did not seek re-election. Since the offi- ,cial canvass of the Democratic Party was made May 17, 1960, we must determine our course of action. “Mr. Carr advises that if the three of ua are disqualified he desires to appoint other members to replace us.” We have reviewed Opinion No. S-139 and we agree with its hold- ings. The emergency clause of the bill by which Article 5429e was enacted sheds light on the purpose and intent of the statute. It recited Hon. H. J. Blanchard. page 3 (WW-898) that “the importance of requiring that Members of the Legislative Budget Board and the Legislative Council, or any other interim Com- mittee, be Members of tha Legislature during the term of their appoint- ment, and also for the succeeding term of the Legislature” created the emergency for the enactment. The holdings in Opinion S-139 are in accord with this expressed purpose. Since you probably have not seen the full text of the opinion, we are enclosing a copy herewith. A reading of the opinion will answer some of your questions without further clar- ification. The holdings in Opinion No. S-139 which are pertinent to your request are as follows: 1. Subdivision (c) of Article 54290 does not apply to ‘“ex-officio” members of interim committees. 2. Unless terminated earlier by resignation from the committee, cessation of membership in the Legislature. or failure to secure nomina- tion to membership in the Legislature for the next succeeding term, an appointive membership on an interim committee is terminated if the mamber 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 legislator is ending. The date of termination is the date on which the results of the election are officially canvassed; 3. Where a member has sought renomination or nomination to the othar branch of the Legislature in a party primary and fails to ob- tain the nomination, his membership on interim committees is terminated on the date of the official canvass of the primary election returns showing that he has been defeated. 4. Where a member’s election to the Legislature was as the nom- inee of a political party which is selecting its nominees for the succeeding term by primary elections, and he did not seek nomination by that party for a place in the Legislature for the succeeding term, his membership on interim committees is terminated on the date of the official canvass of the results of the first primary, unless he has made it known that he will seek re-election in some other manner than as the nominee of that party. (The other methods for seeking re-election which would preserve his status on interim committees pending outcome of his attempt to sacure nomination are (1) as the nominee of some other political party. and (2) as tha nominee of independent or nonpartisan voters in accordance with Articles 13.50-~13.52 of the Election Code.) 5: Membership on the interim committees is terminated imme- diately upon the canvass of the election returns and does not continue until a successor is appointed. A successor appointed from among tha other members of the Legislature would not be qualified to serve if he Hon. H. J. Blanchard, page 4 (WW-898) likewise had failed to secure nomination or election. You and Messrs. Burkett and Conley were elected to the House of Representatives as nominees of the Democratic Party. You have stated that neither of you sought re-election. Yore questions ail1 be answered with special reference to the status of these three members of the House General Investigating Committee. In answer to your first question, electfon takes place in the general election and not in party primaries, no matter how certain election may appear to be by virtue of nomination. However, termina- tion of membership on interim committees is based on failure to secure nomination or election. If a member of the Legislature~lnated m the primary for a succeeding term, he continues to be eligible to serve on interim committees until the official results of the general elec- tion show that he has failed to obtain election. Your second question concerning the date on which the member becomes disqualified to serve on interim committees is answered by the holdings in Opinion S-139, summarized above. In your third question you ask whether members who have not qualified for re-election are disquallfled from service during a special session of the Legislature. In the light of your fourth question, we take Question No. 3 to mean whether members of the Legislature who have become disqualified from serving on interim committees because of failure to secure nomination or election to the succeeding term are also disqualified from serving in sessions of the Legislature. Section 4 of Article III of the Constitution of Texas provides: “‘The members of the House of Representatives shall be chosen by the qualified electors, and their term of office shall be two years from the day of their election.*’ This provision in the Constitution fixes the length and commencement of the terms of members of the House of Representatives, and the right of amember to serve in sessions of the Legislature during his term of office could not be impaired by statute. Subdivision (c) of Article 5429e does not purport to disqualify members of the Legislature from serving in the legislative sessions, but only from serving on the Legislative Budget Board, the Legislative Council, and other interim committees. Although disqualified from serving on interim committees, a member continues to hold office as a legislator and may serve in sessions of the Legislature during his term of office and until his successor quali- fies. Art. XVI, Sec. 17, Texas Constitution. Hon. H. J. Blanchard, page 5 (WW-898) Question No. 4 is whether a member who is disqualified from serving on interim committees by failure to secure nomination or election to the succeeding term is able to serve on committees during a caDed session. Article 5429e has no application to service on regular standing committees of the Legislature. We infer that this question has reference to serving on special committees which are authorized to act both during sessions of the Legislature and during the intervals between sessions, and your inquiry is whether such a committee would cease to be an “interim”’ committee during a called session and therefore removed from the operation of Article 5429e during the called session. H.S.R. No. 202 provides that the House General Investigating Ccenmittee “‘shall have full freedom to determine the times and places it shall meet, both during the Regular Session, any called session, and during the interim between the adjournment of the Regular Session of the 56th Legislature and the convening of the 57th Legislature.” In our opinion, a committee which is authorined to function during the interim between regular sessions does not cease to be an interim committee within the provisions of Article 5429e during the periods of intervening special sessions, and the disqualifications in Article 5429e apply to service during special sessions. In answer to Question No. 5, if a nominee is defeated in the gen- eral election, his disqualification to serve on interim committees occurs when the official canvass of the general election is made. In Que,stion No, 6 you ask what would preclude a member from running and being elected at the November % eneral election as an Independent or Republican. In Opinion No. -139 it was pointed out that a person who has been elected to the Legislature as a nominee of a political party is not obliged to seek re-election as that party’s noxiinee. The opinion held, however, that within the meaning of Article 5429e a person who was elected as a party nominee and who has not again sought that party’s nomination has 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. As applied to the present fact situation, the date of the canvass of the results of the first Democratfc primary on May 17, 1960, was the date on which it was officially shown that a member not seeking renomination of the Democratic Party would not be the pasty nominee. If on that date the member had made it known that he would seek elec- tion as the nominee of some other party or as an independent candidate, hie membership on interim committees would continue for the time in ._. . Hon. H. J. Blanchard, page 6 (WW-898) which nomination by the other method could take place. but would terminate upon his failure to secure nominatioa in that manner. The date for the Republican Party to make its noniinations for district offices has already passed, and membership on interim committees is not preserved through this method of nomination unless the member has been named as the Republican nominee. The deadline for fil&ng aa.spplication as an independent candidate occurred on July 4, 1960 (30 days after the second primary election day). If by that date a member seeking to become an independent candidate had not filed an application meeting the requirements of Articles 13.50-13.52 of the Election Code, his membership on interim committees was terminated. We have said (that membership on interim committees termin- ated on the date of canvass of the fipst primary election returns if the member was theretofore elected as the nominee of the Democratic Party and did not seek the nomination of that party in thfs year’s primary, unless on that date he had made it known that he would seek election by some other method 0% nomination. Your request suggests the possibility that the member might subsequently decide to become aa independent candidate. This raises the question of whether, in the event he did subsequently become a bona fide independent candidate. he would be eligible for re-appointient to the interim committee on which he formerly served. In our opiaion, his candidacy would remove the disqualification based on %ailure to secure nomination and he would become eligible for re-appointment, or %or appointment to other interim committees. SUMMARY Under Article 5429e 0% Vernon’s Civil StatuUes, membership on interim legislative committees o% State Representatives who were thereto%ore elected as nom- inees of the Democratic Party and who did not seek nomination 0% that party for the next succeeding term is terminated on the date of the canvass of the returns 0% the first Democratic primary unless the member has made it known that he will seek election to the House or Senate as the nominee of some other party OP as an independeat candidate. If on that date the member has announced that he will seek nomination of some other party or as an independent candidate, his membership on interim com- mittees continues for the period in which nominatPon by tbe other method could take place, but terminates upon his failure to secure nomination in that manner. If sub- sequent to termmation of membership by fahre to seek Hon. H. J. Blanchard, page 7 (WW-898) nomination in the primary election the legislator be- comes a candidate by some other method of nomination, his disqualification to serve on interim committees is removed and he becomes eligible for appointment to such committees. If a nominee is defeated in the general election, his disqualification to serve on interim com- mittees occurs when the official canvass of the general election is made. A disqualified member may not serve on interim committees during special sessions of the Legislature. Yoaars very truly, WILL WILSON Attorney General of Texas BHT:lmc APPROVED: OPINION COMMITTEE: Gordon C. Cass, Chairman Houghton B rownlee 3. C. Davis, Jr. Morgan Nesbitt J. Arthur Sandlin REVIEWEDFORTHEATTORI’IEYGENERAL BY: Leonard Passmore