Can a Texas city council member who isn't paid for his current term run for the state legislature?

TX AG Opinion GA-0421: Can an unpaid council member run for the legislature?

Plain-English summary

The Rockwall County Criminal District Attorney asked the Attorney General whether a city council member could run for the Texas Senate, given a constitutional rule that bars holders of a "lucrative office" from being elected to the legislature. The council member had a mixed pay history. He was first elected to a two-year term in May 2003, and during that term he received $90 a year under a city ordinance. He was reelected in May 2005, and a few months later, on September 19, 2005, the council repealed the ordinance that paid council members. So during his current term (May 2005 to May 2007), he would receive nothing.

The opinion answered that he was eligible. Article III, section 19 of the Texas Constitution says no person "holding a lucrative office under . . . this State shall, during the term for which he is elected . . . be eligible to the Legislature." The Texas Supreme Court has said an office is "lucrative" if the holder receives any compensation, no matter how small, though reimbursement for expenses alone does not make an office lucrative. A salaried city council member does hold a lucrative office. But the key phrase is "during the term for which he is elected." The opinion explained that "term" here means the term of office, a fixed period set by law (here, two years), which is different from an individual's overall tenure in the seat across multiple terms.

So even though the council member held a lucrative office during his first term, his current term, the one that mattered for the election he wanted to enter, was uncompensated. That meant he did not hold a lucrative office during the relevant term, and section 19 did not make him ineligible. The opinion attached two conditions and a consequence. First, it assumed the council validly repealed the pay ordinance by adopting another ordinance, because under the "equal dignity" rule an ordinance can be repealed only by an act of equal dignity; if the repeal was not done by ordinance, it would be ineffective and the analysis could change. Second, because Rockwall council terms are two years, the constitutional automatic-resignation rule for officeholders who run with more than a year left in their term did not apply. Finally, the opinion noted that if the council member won, he would automatically resign his council seat once he qualified for the legislative office, since no legislator may simultaneously hold another state office.

Currency note

This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

This opinion turned on the specific facts of one Rockwall council member's pay history in 2003 to 2006 and on the constitutional provisions and cases as they stood then. The constitutional and statutory provisions on lucrative office and dual officeholding may have been interpreted further since. Anyone weighing a candidate's eligibility today should check the current law and recent decisions, and analyze that candidate's own facts, rather than rely on this 2006 opinion.

Who this opinion affected (as of 2006)

The Rockwall council member and similarly situated officeholders: The opinion told him that because his current term was uncompensated, article III, section 19 did not bar him from running for the legislature.

Home-rule cities: It noted that a home-rule city like Rockwall is not bound by the general-law statute that fixes officer salaries before an election and forbids mid-term changes, so its charter could allow the council to cut or eliminate its own pay mid-term.

Election officials and candidates generally: It clarified that "lucrative office" is judged by the current term of office, not a prior term or overall tenure, and that any compensation (beyond mere expense reimbursement) makes an office lucrative.

Common questions

Does any city council pay make someone ineligible to run for the legislature?
According to the opinion, a salaried council member holds a "lucrative office" and is barred during that term, because the Texas Supreme Court has said any compensation, no matter how small, makes an office lucrative. But expense reimbursement alone does not.

Why wasn't this council member barred, given he had been paid before?
The opinion explained that article III, section 19 looks at the "term for which he is elected." His prior term was paid, but his current term (after the council repealed the pay ordinance) was not, so during the term that mattered he did not hold a lucrative office.

Does a prior paid term or overall time in office count?
No. The opinion distinguished "term of office," a fixed period set by law, from an individual's "tenure," and applied the test to the current term, not to earlier terms or cumulative service.

What happens to the council seat if he wins the legislative race?
The opinion noted that he would automatically resign his council seat when he qualified for the legislative office, because no member of the legislature may hold another office under the state.

Did it matter how the city repealed the pay ordinance?
Yes. The opinion assumed the repeal was done by ordinance, citing the equal-dignity rule that an ordinance can be repealed only by another ordinance. If the repeal was not by ordinance, it would be ineffective.

Background and statutory framework

Rockwall is a home-rule municipality whose charter directs the council to set members' compensation by ordinance, bars a compensation increase from taking effect until the next term, but does not forbid decreasing or eliminating pay mid-term (City of Rockwall, Tex. Home Rule Charter art. II, § 2.01; art. III, §§ 3.01, 3.03 (1985)). As a home-rule city, it is not subject to Local Government Code section 141.001, which requires a type A general-law municipality to set salaries before a regular election and bars mid-term changes (Tex. Loc. Gov't Code Ann. § 141.001 (Vernon 1999); City of Brownsville v. Kinder, 204 S.W. 446, 447 (Tex. Civ. App.-San Antonio, writ ref'd)).

A constitutional provision restricting the right to hold office is strictly construed to minimize ineligibility (Wentworth v. Meyer, 839 S.W.2d 766, 767 (Tex. 1992)). Article III, section 19 bars a person holding a "lucrative office under . . . this State" from being eligible to the legislature "during the term for which he is elected," a rule rooted in separation of powers (Tex. Const. art. III, § 19; Dawkins v. Meyer, 825 S.W.2d 444, 448 (Tex. 1992)). An office is lucrative if the holder receives any compensation, no matter how small, but expense reimbursement alone does not make it lucrative (Dawkins, 825 S.W.2d at 447; In re Carlisle, 49 Tex. Sup. Ct. J. 262, 264, 2006 WL 120292, at *3 (Tex. Jan. 17, 2006); Whitehead v. Julian, 476 S.W.2d 844, 845 (Tex. 1972)), and a salaried council member holds a lucrative office (Willis v. Potts, 377 S.W.2d 622, 627 (Tex. 1964); Tex. Att'y Gen. LO-89-106).

The word "term" means "term of office," a fixed and definite period set by law, distinct from an individual's tenure (Tex. Att'y Gen. Op. No. JC-0264 (2000); Spears v. Davis, 398 S.W.2d 921, 926 (Tex. 1966); Tex. Att'y Gen. LO-89-106). Because the charter sets two-year terms and the council member's current term (May 2005 to May 2007) was uncompensated after the ordinance repeal, his current office was not lucrative, so section 19 did not bar him. The opinion assumed the repeal was by ordinance under the equal-dignity rule (City of Rockwall Charter § 3.11(1); City of San Antonio v. Micklejohn, 33 S.W. 735, 736 (Tex. 1895)), noted that the two-year term meant the automatic-resignation rule of article XI, section 11 did not apply, and observed that election to the legislature would cause automatic resignation of the council seat upon qualifying (Tex. Const. art. XVI, § 40(d); art. XI, § 11; Purcell v. Carillo, 349 S.W.2d 263, 263 (Tex. Civ. App.-San Antonio 1961, no writ); Tex. Att'y Gen. Op. No. JC-0464 (2002)).

Citations

Constitutional, statutory, and charter provisions:

• Tex. Const. art. III, § 19; art. XI, § 11; art. XVI, § 40(d)
• Tex. Loc. Gov't Code Ann. § 141.001 (Vernon 1999)
• City of Rockwall, Tex. Home Rule Charter art. II, § 2.01; art. III, §§ 3.01, 3.03, 3.11(1) (1985)

Cases:

• City of Brownsville v. Kinder, 204 S.W. 446, 447 (Tex. Civ. App.-San Antonio, writ ref'd)
• Wentworth v. Meyer, 839 S.W.2d 766, 767 (Tex. 1992)
• Dawkins v. Meyer, 825 S.W.2d 444, 448 (Tex. 1992)
• In re Carlisle, 49 Tex. Sup. Ct. J. 262, 264, 2006 WL 120292, at *3 (Tex. Jan. 17, 2006)
• Whitehead v. Julian, 476 S.W.2d 844, 845 (Tex. 1972)
• Willis v. Potts, 377 S.W.2d 622, 627 (Tex. 1964)
• Spears v. Davis, 398 S.W.2d 921, 926 (Tex. 1966)
• City of San Antonio v. Micklejohn, 33 S.W. 735, 736 (Tex. 1895)
• Purcell v. Carillo, 349 S.W.2d 263, 263 (Tex. Civ. App.-San Antonio 1961, no writ)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0421
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2006/ga0421.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain - the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

April 6, 2006

The Honorable Galen Ray Sumrow
Rockwall County Criminal District Attorney
Rockwall County Government Center
1101 Ridge Road, Suite 105
Rockwall, Texas 75087

Opinion No. GA-0421

Re: Whether under article III, section 19 of the Texas Constitution a city council member whose current term of office is uncompensated is eligible for election to the legislature (RQ-0408-GA)

Dear Mr. Sumrow:

You ask whether under article III, section 19 of the Texas Constitution a city council member whose current term of office is uncompensated is eligible to be elected to the legislature.[1] Your question concerns a home-rule municipality whose city charter authorizes the council to set the council members' compensation, if any, by ordinance. See Request Letter, supra note 1, at 1; see also CITY OF ROCKWALL, TEX. HOME RULE CHARTER art. III, § 3.03 (1985) (directing that the council must determine council members' compensation by ordinance) [hereinafter Rockwall Charter]. You inform us that the council member at issue was first elected to a two-year term on the council in May 2003. See Request Letter, supra note 1, at 1; see also Rockwall Charter, supra, § 3.01 (directing that council members "shall serve for a term of two years"). At that time, in accordance with an ordinance, each council member received $90 per year as compensation. See Request Letter, supra note 1, at 1. Consequently, the council member received $90 in May 2004 for serving from May 2003 through May 2004 and $90 in May 2005 for serving from May 2004 through May 2005. See id. The council member was reelected to another two-year council term in May 2005, and the term started in that month. See id. On September 19, 2005, the council repealed the ordinance providing compensation to council members. See id. Accordingly, you state, the council member "will not be paid for his second term of service on the City Council (from May 2005-May 2007)." Id. The council member recently announced his candidacy for a seat in the Texas Senate.[2]

You ask whether the council member is ineligible to run for the Texas Legislature under article III, section 19 of the Texas Constitution, and we are therefore called upon to examine that constitutional provision. See id. at 1-2; see also TEX. CONST. art. III, § 19. We note, as a preliminary matter, that the City of Rockwall's (the "City") charter requires that an increase in council members' compensation may not "take effect until the commencement of the terms of Mayor and/or Council members elected at the next regular election." Rockwall Charter, supra, § 3.03. But nothing in the charter forbids the council from decreasing or eliminating its compensation mid-term. See id. Moreover, as the City is a home-rule municipality, see id. § 2.01, it is not subject to Local Government Code section 141.001, which requires a type A general-law municipality to set elected officers' salaries "[o]n or before January 1 preceding a regular municipal election" and prohibits changing the compensation mid-term, see TEX. LOC. GOV'T CODE ANN. § 141.001 (Vernon 1999); see also City of Brownsville v. Kinder, 204 S.W. 446, 447 (Tex. Civ. App.-San Antonio, writ ref'd) (construing pre-codified version of Local Government Code section 141.001).

In interpreting a constitutional provision, we begin with the text itself. See Wentworth v. Meyer, 839 S.W.2d 766, 767 (Tex. 1992). When the text's meaning is in doubt, we "consider the intent of the people who adopted the constitution." Id. And we must strictly construe a provision that restricts the right to hold office to minimize ineligibility. See id.

Under article III, section 19, no person "holding a lucrative office under . . . this State . . . shall, during the term for which he is elected . . . be eligible to the Legislature." TEX. CONST. art. III, § 19. "The policy underlying" article III, section 19, as the Texas Supreme Court determined in 1992, "is the doctrine of separation of power[s] which was considered a means of mitigating undue influence by the executive upon the legislative branch." Dawkins v. Meyer, 825 S.W.2d 444, 448 (Tex. 1992); accord Wentworth, 839 S.W.2d at 767 (discussing Dawkins).

At present, the council member about whom you ask is uncompensated and thus does not hold a lucrative office. According to the Texas Supreme Court, "an office is lucrative" for purposes of article III, section 19 "if the office holder receives any compensation, no matter how small," although "[r]eimbursement for expenses alone does not render an office 'lucrative.'" Dawkins, 825 S.W.2d at 447; see In re Carlisle, 49 Tex. Sup. Ct. J. 262, 264, 2006 WL 120292, at *3 (Tex. Jan. 17, 2006) (per curiam) (holding that reimbursement for meals does not render an office lucrative); Whitehead v. Julian, 476 S.W.2d 844, 845 (Tex. 1972) (holding that a $50 expense allowance does not render an office lucrative if expenses exceed the allowance). Article III, section 19 applies to a salaried city council member. See Willis v. Potts, 377 S.W.2d 622, 627 (Tex. 1964) (concluding that a city council member who received $10 per diem for each regular meeting plus necessary expenses held a lucrative office for purposes of article III, section 19); Tex. Att'y Gen. LO-89-106, at 1 (citing Willis for the proposition that a salaried city council member holds a lucrative office).

Nevertheless, you seem to be concerned that the compensation the council member received during his first two years in office may render his office lucrative. See Request Letter, supra note 1, at 2. Under article III, section 19 a person holding a lucrative office under this state is ineligible for the legislature "during the term for which" the person was elected. TEX. CONST. art. III, § 19. In our opinion, the word "term" in this context is synonymous with the phrase "term of office." "A term of office is a fixed and definite period" that is generally set by law. Tex. Att'y Gen. Op. No. JC-0264 (2000) at 5; see Spears v. Davis, 398 S.W.2d 921, 926 (Tex. 1966). The Texas Supreme Court has clearly distinguished between the phrase "term of office" and an individual's tenure of office. See Spears, 398 S.W.2d at 926. "The period of time designated as a term of office may not and often does not coincide with an individual's tenure of office." Id. As this office has stated, "[a] term of office may be legally established for a period of two, three, four[,] or six years. A given individual, however, may serve for a shorter or longer period than the term prescribed by law." Tex. Att'y Gen. LO-89-106, at 2.

The City's charter sets city council members' terms at two years. See Rockwall Charter, supra, § 3.01; see also Request Letter, supra note 1, at 1 (indicating that the council member's first term ran from May 2003 through May 2005 and his second term runs from May 2005 through May 2007). Although the council member held a lucrative office during his first two-year term, his current two-year term, which commenced in May 2005, is not lucrative. Under the city ordinance, he will receive no compensation during the current two-year term. See Request Letter, supra note 1, at 1-2.

We accordingly conclude that article III, section 19 does not, in these circumstances, render this council member ineligible from election to the legislature. In reaching this conclusion, we assume that the city council repealed its compensation ordinance by adopting an ordinance. See Rockwall Charter, supra, § 3.11(1) ("After adoption an ordinance shall not be . . . repealed except by the adoption of another ordinance . . . ."). If the repeal was not accomplished by ordinance, it is ineffective. See City of San Antonio v. Micklejohn, 33 S.W. 735, 736 (Tex. 1895) ("The act which destroys should be of equal dignity with that which establishes.").

Of course, should the council member be elected to the legislature, he automatically resigns his council seat when he qualifies for the legislative office.[3] See TEX. CONST. art. XVI, § 40(d) ("No member of the Legislature . . . may hold any other office . . . under this State . . . ."); Purcell v. Carillo, 349 S.W.2d 263, 263 (Tex. Civ. App.-San Antonio 1961, no writ) (stating that, for purposes of article XVI, section 40, an individual does not "hold" an office until the individual qualifies or enters upon the office's duties); Tex. Att'y Gen. Op. No. JC-0464 (2002) at 3-4 (concluding that under article XVI, section 40(d) a new legislator automatically resigns an existing position on a state board's governing body).

SUMMARY

A city council member whose current term of office, which began in May 2005, is uncompensated in accordance with ordinance is eligible for election to the Texas Legislature under article III, section 19 of the Texas Constitution.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

BARRY R. MCBEE
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee

Footnotes

1. See Letter from Honorable Galen Ray Sumrow, Rockwall County Criminal District Attorney, to Honorable Greg Abbott, Attorney General of Texas (Oct. 25, 2005) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

2. See Ian McCann, Rockwall Council Member Says He'll Race Deuell for Senate Seat, DENTON RECORD-CHRONICLE (Nov. 2, 2005); see also Roy Maynard, Rockwall McCallum Challenges Deuell, TYLER MORNING TELEGRAPH (Dec. 28, 2005).

3. Because the Rockwall city council members hold office for two-year terms, article XI, section 11 of the Texas Constitution, under which a council member would automatically resign his or her city office should the council member run for another office with more than one year left in the council term, does not apply. See TEX. CONST. art. XI, § 11.