Can a Texas state legislator also serve as the state chairman of a political party?

Plain-English summary

State Representative Joe Deshotel, who chaired the House Committee on Business and Industry, asked the Attorney General whether the Texas Constitution lets a sitting member of the Legislature also serve as the state chairman of a political party. Two constitutional provisions were in play. Article XVI, section 40(d) says no member of the Legislature may hold "any other office or position of profit under this State, or the United States," except as a notary public. Article III, section 19 says a person "holding a lucrative office under the United States, or this State" is not eligible to serve in the Legislature. So the question reduced to whether a party's state chair holds an office or position "under this State."

The opinion concluded the state chair does not. It leaned on a line of Texas Supreme Court cases holding that political parties are political instrumentalities, not governmental ones, and that officers of a political party (such as members of a party executive committee) are not governmental officers, even when statutes provide for the positions. Because the state chairman of a political party does not hold an office or position under this State, the opinion held that neither article III, section 19 nor article XVI, section 40(d) bars a legislator from serving in that role. Having decided the post is not a state office, the opinion did not need to reach whether it is a "position of profit" or a "lucrative office."

The opinion added two points in its footnotes. Common-law incompatibility did not apply, because that doctrine requires both positions to be public offices, and a party chair is not. And while a statute bars certain officeholders from serving as a county or precinct party chair, no statute bars an elected state official from serving as a party's state chair, which the opinion read as a sign the Legislature knew how to forbid such dual service and chose not to here. The opinion also overruled, to the extent of any conflict, an earlier letter opinion (LO-95-073) that had described a party conducting primary elections as functioning as a state agency.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

Legislators and the party officials who asked (as the opinion held for them): The opinion told them that a sitting state legislator could also serve as a political party's state chairman, because that party post is not an office or position "under this State" and so falls outside both constitutional dual-officeholding bars.

On the two constitutional provisions (as the opinion described it): The opinion read article III, section 19 and article XVI, section 40(d) as reaching only offices "under this State" (or the United States). Since a party state chair is not such an office, neither provision applied, and the opinion did not have to classify the post as a "position of profit" or "lucrative office."

On common-law incompatibility (where the opinion stopped): The opinion explained that the "conflicting loyalties" incompatibility doctrine did not apply because it requires two public offices, and a party chair is not a public office.

On the statutory backdrop (as the opinion described it): The opinion noted a statute bars some officeholders from being a county or precinct party chair but found no statute barring an elected state official from being a party's state chair, treating that silence as deliberate.

Common questions

Is a political party's state chairman a government officer in Texas?
No. The opinion relied on Texas Supreme Court cases holding that political parties are political, not governmental, instrumentalities, and their officers are not governmental officers even when statutes provide for them.

Which constitutional rules were at issue?
Article XVI, section 40(d), which bars a legislator from holding another "office or position of profit under this State," and article III, section 19, which makes a person holding "a lucrative office under ... this State" ineligible for the Legislature.

Why didn't the "lucrative office" or "position of profit" question matter?
Because the opinion concluded the chair is not an office "under this State" at all, it did not need to decide whether the role pays or is lucrative.

Does any statute forbid this dual service?
The opinion found none for the state chair. It noted a statute bars certain officeholders from serving as a county or precinct party chair, but read the absence of a similar bar for the state chair as the Legislature's deliberate choice.

Background and statutory framework

Article XVI, section 40(d) of the Texas Constitution bars a member of the Legislature from holding "any other office or position of profit under this State, or the United States," except as a notary public if qualified by law. Tex. Const. art. XVI, § 40(d). Article III, section 19 makes a person holding "a lucrative office under the United States, or this State, or any foreign government" ineligible for the Legislature during the term. Id. art. III, § 19.

The Texas Supreme Court has held that political parties are political instrumentalities, not governmental ones, and that party officers are not governmental officers even when provided for by statute. Waples v. Marrast, 184 S.W. 180, 184 (Tex. 1916), overruled in part on other grounds, Bullock v. Calvert, 480 S.W.2d 367, 370 (Tex. 1972); Koy v. Schneider, 218 S.W. 479, 480 (Tex. 1920); Wall v. Currie, 213 S.W.2d 816, 819 (Tex. 1948); Carter v. Tomlinson, 227 S.W.2d 795, 799 (Tex. 1950). A statute bars certain officeholders from serving as a county or precinct party chair, but none bars an elected state official from serving as a party's state chair. Tex. Elec. Code Ann. § 161.005(a) (West 2010); see also FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 884-85 (Tex. 2000) (the Legislature knows how to enact a law effectuating its intent).

Citations

Cases:

• Waples v. Marrast, 184 S.W. 180, 184 (Tex. 1916)
• Bullock v. Calvert, 480 S.W.2d 367, 370 (Tex. 1972)
• Koy v. Schneider, 218 S.W. 479, 480 (Tex. 1920)
• Wall v. Currie, 213 S.W.2d 816, 819 (Tex. 1948)
• Carter v. Tomlinson, 227 S.W.2d 795, 799 (Tex. 1950)
• FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 884-85 (Tex. 2000)

Statutes:

• Tex. Const. art. XVI, § 40(d)
• Tex. Const. art. III, § 19
• Tex. Elec. Code Ann. § 161.005(a) (West 2010)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0880
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2011/ga0880.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

August 12, 2011

The Honorable Joe Deshotel Opinion No. GA-0880
Chair, Committee on Business and Industry
Texas House of Representatives Re: Whether a member of the Legislature may
Post Office Box 2910 serve as the state chairman of a political party
Austin, Texas 78768-2910 (RQ-0965-GA)

Dear Representative Deshotel:

You ask whether, under articles XVI, section 40, and III, section 19, the Texas Constitution precludes a member of the Legislature from serving as the state chairman of a political party.[1] Article XVI, section 40 provides, in relevant part:

(d) No member of the Legislature of this State may hold any other office or position of profit under this State, or the United States, except as a notary public if qualified by law.

TEX. CONST. art. XVI, § 40(d) (emphasis added). Article III, section 19 declares:

No judge of any court, Secretary of State, Attorney General, clerk of any court of record, or any person holding a lucrative office under the United States, or this State, or any foreign government shall during the term for which he is elected or appointed, be eligible to the Legislature.

Id. art. III, § 19 (emphasis added). Thus, we must determine whether the state chair of a political party holds "any other office or position of profit under this State" or "a lucrative office under ... this State."

The Texas Supreme Court has determined that the state chairman of a political party does not hold an office or position "under this State."[2] In 1916, the court held that "[p]olitical parties are political instrumentalities. They are in no sense governmental instrumentalities." Waples v. Marrast, 184 S.W. 180, 184 (Tex. 1916), overruled in part on other grounds, Bullock v. Calvert, 480 S.W.2d 367, 370 (Tex. 1972); accord Koy v. Schneider, 218 S.W. 479, 480 (Tex. 1920); Tex. Att'y Gen. Op. No. JC-0562 (2002) at 2 ("under Texas law a political party is not a state or governmental agency"). Moreover, the Texas Supreme Court has declared that "officers of a political party, such as members of a party executive committee, are not governmental officers, even when provided for by statutory law." Wall v. Currie, 213 S.W.2d 816, 819 (Tex. 1948); see also Carter v. Tomlinson, 227 S.W.2d 795, 799 (Tex. 1950) ("[o]fficers of a political party, such as chairmen of the County Executive Committees and precinct committeemen, although provided for by election laws, are not regarded as public or governmental officers"); Tex. Att'y Gen. Op. No. JC-0562 (2002) at 2-3 ("officers of a political party ... are not public or governmental officers").[3]

Because the state chairman of a political party does not hold an office or position under this State,[4] neither article III, section 19, nor article XVI, section 40(d) of the Texas Constitution prohibits a member of the Legislature from serving in such a position.[5] As a result, we need not determine whether the chairman holds either a "position of profit" or a "lucrative office."

SUMMARY

Because the state chairman of a political party does not hold an office or position under this State, a member of the Legislature is not barred from serving as the state chairman of a political party under either article III, section 19 or article XVI, section 40(d) of the Texas Constitution.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable Joe Deshotel, Chair, House Committee on Business and Industry, to Honorable Greg Abbott, Attorney General of Texas (Apr. 20, 2011), https://www.oag.state.tx.us/opin/index_rq.shtml ("Request Letter").

[2] A brief attached to your request letter states that the position at issue here, state chairman of a political party, is a non-compensated position. See Brief from Renea Hicks, Law Office of Max Renea Hicks at 2 (attached to Request Letter).

[3] By statute, in order to serve as a county or precinct chair of a political party, a person must, inter alia, not "be the holder of, an elective office of the federal, state, or county government." TEX. ELEC. CODE ANN. § 161.005(a) (West 2010). But no statute prohibits an elected state official from serving as the state chair of a political party. Clearly, the Legislature knows how to prohibit such dual service, but has not done so in the situation you present. See Tex. Att'y Gen. Op. No. GA-0779 (2010) at 3 (citing FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 884-85 (Tex. 2000) for the proposition that the Legislature knows how to enact a law effectuating its intent).

[4] Neither does common-law incompatibility apply to your question. It is well established that both positions must be public offices in order for "conflicting loyalties" incompatibility to be applicable. Tex. Att'y Gen. Op. Nos. GA-0350 (2005), GA-0169 (2004), JM-1266 (1990); Tex. Att'y Gen. LOs 96-148, 95-029, 93-027.

[5] We overrule, to the extent of conflict, Letter Opinion 95-073, which states that a political party in its role of conducting the Texas primary elections functions as an agency of the state. Tex. Att'y Gen. LO-95-073, at 3.