Does a Texas state agency board member have to resign to run for the Legislature?

Plain-English summary

The Texas Constitution puts two different limits in play when a state board member wants a seat in the Legislature, and they do not work the same way. Article III, section 19 makes anyone holding a "lucrative" state or federal office ineligible to serve in the Legislature. Article XVI, section 40(d) separately bars a sitting legislator from holding any other state office. The Executive Director of the Texas Department of Economic Development asked the Attorney General how both provisions affected a member of the department's governing board who wanted to run for the Texas House.

On the first provision, the Attorney General concluded that article III, section 19 did not apply at all. The board members were "officers," but they did not hold a "lucrative" office. By statute they could not be paid for their service and could only be reimbursed for actual and necessary expenses. Texas courts have long held that an office is "lucrative" only if the holder receives a salary, fees, or some other compensation (even a small per diem counts), while bare expense reimbursement does not make an office lucrative. So the board member was free to run for the Legislature without resigning, and article III, section 19 would not affect his eligibility to serve if elected.

The second provision was the real constraint. Article XVI, section 40(d) prohibits a legislator from holding any other state office, paid or unpaid. The Attorney General read "office" in that subsection to cover unpaid offices, because reading it to reach only paid offices would make it redundant of section 40(a) (which already bars holding more than one paid office). The practical result: a person could not serve as both a department board member and a legislator at the same time, and qualifying for the legislative seat would automatically operate as a resignation from the board.

Currency note

This opinion was issued in 2002. 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. The Texas Department of Economic Development itself was later abolished and its functions reorganized, so the specific statutes cited here may no longer be in force.

What the opinion meant for those who asked

State agency board members thinking about a legislative run (what the opinion held for them): The opinion concluded that a board member who received no compensation and only expense reimbursement did not hold a "lucrative office," so article III, section 19 did not require resignation in order to run for the Legislature and did not affect eligibility to serve if elected.

A board member who actually wins a legislative seat (what the opinion held): The opinion held that article XVI, section 40(d) prohibits a legislator from simultaneously holding another state office, paid or unpaid, so the same person could not sit on the board and in the Legislature at once; qualifying for the legislative office would automatically resign the board membership.

The Department of Economic Development, which asked (the scope of the answer): The opinion answered the specific questions presented about article III, section 19 and reimbursement, concluding that reimbursement (and even waiver of reimbursement) did not change the result, and that the timing-of-resignation questions were governed not by section 19 but by the automatic-resignation rule of article XVI, section 40(d).

Common questions

Can an unpaid state board member run for the Texas Legislature without resigning?
Under this opinion, yes. The Attorney General concluded that an office carrying no compensation, only expense reimbursement, is not a "lucrative office," so the article III, section 19 ineligibility bar did not apply and no resignation was required to run.

What makes a state office "lucrative" for this purpose?
The opinion explained that an office is lucrative if the holder receives a salary, fees, or any other compensation, including even a small per diem. Reimbursement for actual expenses alone does not make an office lucrative.

Could the board member serve in both positions if elected?
No. The opinion concluded that article XVI, section 40(d) bars a legislator from holding any other state office, paid or unpaid, so accepting and qualifying for the legislative seat would operate as an automatic resignation from the board.

Did it matter whether the board member waived expense reimbursement?
No. Because the office was not lucrative to begin with, the opinion concluded that waiving reimbursement made no difference to the article III, section 19 analysis.

Background and statutory framework

Article III, section 19 of the Texas Constitution provides that no judge, Secretary of State, Attorney General, clerk of a 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." Tex. Const. art. III, § 19.

Members of the Department of Economic Development governing board are "officers" because they govern a state agency and exercise sovereign functions largely independent of the control of others. Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955); Dunbar v. Brazoria County, 224 S.W.2d 738, 740-41 (Tex. Civ. App.-Galveston 1949, writ ref'd). But Texas courts hold that an officer holds a "lucrative office" only if he receives a salary, fees, or other compensation. Whitehead v. Julian, 476 S.W.2d 844, 845 (Tex. 1972). An office is lucrative even where the compensation is slight: a state board member who received a $30 per diem in addition to expenses held a lucrative office, Dawkins v. Meyer, 825 S.W.2d 444, 446-47 (Tex. 1992), as did a city council member who received a $10 per diem in addition to expenses, Willis v. Potts, 377 S.W.2d 622, 623 (Tex. 1964). Reimbursement for expenses alone does not make an office lucrative. Whitehead, 476 S.W.2d at 845.

By statute, a member of the Department of Economic Development governing board "may not receive compensation for service on the governing board" and is entitled only to reimbursement for actual and necessary travel expenses. Tex. Gov't Code Ann. § 481.0043(c) (Vernon 1998); see id. ch. 481, subch. A (Vernon 1998 & Supp. 2002) (board authority). Because the members were not compensated, the opinion concluded they did not hold a lucrative office, and article III, section 19 was not relevant to their eligibility.

The opinion then turned to article XVI, section 40. Subsection (d) provides that "[n]o 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). The opinion read "office" in subsection (d) to include unpaid offices, reasoning that limiting it to paid offices would make it redundant of subsection (a), which already bars holding "more than one civil office of emolument." Tex. Const. art. XVI, § 40(a); see Doody v. Ameriquest Mortgage Co., 49 S.W.3d 342, 344 (Tex. 2001) (courts avoid construing a provision to be meaningless). Because qualification for and acceptance of a second office operates as an automatic resignation from the first, Pruitt v. Glen Rose Indep. Sch. Dist., 84 S.W.2d 1004 (Tex. Comm'n App. 1935, judgm't adopted), a board member elected to the Legislature would automatically resign the board seat on qualifying for the legislative office.

Citations

Constitutional and statutory provisions:

• Tex. Const. art. III, § 19
• Tex. Const. art. XVI, § 40(a)
• Tex. Const. art. XVI, § 40(d)
• Tex. Gov't Code Ann. ch. 481, subch. A (Vernon 1998 & Supp. 2002)
• Tex. Gov't Code Ann. § 481.0043(c) (Vernon 1998)

Cases:

• Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955)
• Dunbar v. Brazoria County, 224 S.W.2d 738, 740-41 (Tex. Civ. App.-Galveston 1949, writ ref'd)
• Whitehead v. Julian, 476 S.W.2d 844, 845 (Tex. 1972)
• Dawkins v. Meyer, 825 S.W.2d 444, 446-47 (Tex. 1992)
• Willis v. Potts, 377 S.W.2d 622, 623 (Tex. 1964)
• Doody v. Ameriquest Mortgage Co., 49 S.W.3d 342, 344 (Tex. 2001)
• Pruitt v. Glen Rose Indep. Sch. Dist., 84 S.W.2d 1004 (Tex. Comm'n App. 1935, judgm't adopted)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0464
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2002/jc0464.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

JOHN CORNYN

February 12, 2002

Mr. Jeff Moseley
Executive Director
Texas Department of Economic Development
P.O. Box 12728
Austin, Texas 78711-2728

Opinion No. JC-0464

Re: Whether article III, section 19 of the Texas Constitution requires a Texas Department of Economic Development governing board member to resign from office in order to run for the Texas Legislature (RQ-0457-JC)

Dear Mr. Moseley:

You ask about the effect of article III, section 19 of the Texas Constitution on a Texas Department of Economic Development ("DED") governing board member who wishes to run for office as a state legislator. Under article III, section 19, holders of "lucrative" state and federal offices are ineligible to serve in the Texas Legislature. We conclude that because members of the DED governing board do not hold "lucrative" office, article III, section 19 is not relevant to a board member's eligibility to run for legislative office or to serve as a legislator.

You explain that a member of the DED governing board "wishes to seek party nomination in the primary to be a candidate for the Texas House of Representatives for a term beginning in January 2003."[1] You ask the following questions about article III, section 19 of the Texas Constitution:

1. Is a board member who does not receive compensation, but who is entitled to receive reimbursement for actual expenses, eligible to serve in the Legislature during the term for which he or she was appointed?

2. Does it make any difference if the board member waives reimbursement?

3. If required, when must the board member resign in order to seek party nomination for the Texas Legislature?

4. If the board member does not have to resign to seek party nomination in the primary for the Texas Legislature, at what point must he or she resign in order to serve in the Legislature?

Request Letter, supra note 1, at 1.

Article III, section 19 of the Texas Constitution provides as follows:

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.

TEX. CONST. art. III, § 19 (emphasis added). Your first three questions ask about the implications of this provision for a board member's eligibility to run for legislative office. As we explain below, article III, section 19 applies only to holders of "lucrative office," a term that does not include members of the DED governing board. Given that a member of the DED governing board does not hold a "lucrative office" under article III, section 19, that constitutional limitation does not apply to the board member at issue. Article III, section 19 does not require the board member to resign from office in order to run for legislative office and will not affect the member's eligibility to serve should he or she be elected to office.

As the board at issue is responsible for the governance of the DED, a state agency, its members are clearly "officers" within the meaning of article III, section 19, see TEX. GOV'T CODE ANN. ch. 481, subch. A (Vernon 1998 & Supp. 2002) (authority of DED governing board); Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955) (test for determining whether a person is an officer for purposes of constitutional dual-office-holding provisions is whether person exercises "'sovereign function[s] of the government . . . largely independent of the control of others'") (quoting Dunbar v. Brazoria County, 224 S.W.2d 738, 740-41 (Tex. Civ. App.-Galveston 1949, writ ref'd)), but the board members do not hold lucrative office. The term "lucrative office" has been the subject of several judicial opinions. These cases hold that an officer who receives a salary, fees, or any other compensation holds a "lucrative office" within this provision. See Whitehead v. Julian, 476 S.W.2d 844, 845 (Tex. 1972). An office is lucrative even if the officeholder's compensation is quite insignificant, such as a small per diem. See, e.g., Dawkins v. Meyer, 825 S.W.2d 444, 446-47 (Tex. 1992) (state agency board member who received $30 per diem in addition to expenses held a lucrative office within the meaning of art. III, § 19); Willis v. Potts, 377 S.W.2d 622, 623 (Tex. 1964) (city council member who received $10 per diem in addition to expenses held a lucrative office within the meaning of art. III, § 19). Reimbursement for expenses alone, however, does not render an office lucrative. See Whitehead, 476 S.W.2d at 845 (mayor who received only $50 monthly expense allowance and whose expenses exceeded the allowance did not hold a lucrative office within the meaning of art. III, § 19).

Under section 481.0043(c) of the Government Code, a member of the DED governing board "may not receive compensation for service on the governing board. A member is entitled to receive reimbursement, subject to any applicable limitation on reimbursement provided by the General Appropriations Act, for actual and necessary travel expenses incurred in performing services as a member of the governing board." TEX. GOV'T CODE ANN. § 481.0043(c) (Vernon 1998). Because these board members do not receive compensation and receive reimbursement only for their actual and necessary expenses, a member of the DED governing board does not hold a "lucrative office" under article III, section 19 as that term has been construed by the Texas Supreme Court.

Your final question asks, "[i]f the board member does not have to resign to seek party nomination . . . , at what point must he or she resign in order to serve in the Legislature?" Request Letter, supra note 1, at 1. Again, article III, section 19 does not apply to a member of the DED governing board and has no implications for when a member must resign in order to serve in the legislature. We note, however, that should the board member be elected to serve in the legislature, he or she will automatically resign her membership on the DED governing board upon qualifying for the legislature by operation of the constitutional dual-office-holding prohibition-article XVI, section 40.

Under article XVI, section 40(d), "[n]o 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). We have not located any judicial or attorney general opinion addressing whether in this provision the term "office" applies to both paid and unpaid offices. We conclude here that the term "office" applies to any office, paid or unpaid. This special dual-office-holding prohibition for legislators is in addition to the general prohibition against holding more than one paid office in subsection (a) of section 40. See id. § 40(a) ("No person shall hold or exercise at the same time, more than one civil office of emolument . . . ."). If we were to construe "office" to apply only to paid offices, then subsection (d) of section 40 would be redundant of subsection (a) and would be rendered meaningless and inoperative. In order to give the term "office" meaning, we construe subsection (d) to prohibit a legislator from holding any other state or federal office, even if the office is not paid. See Doody v. Ameriquest Mortgage Co., 49 S.W.3d 342, 344 (Tex. 2001) (courts avoid a construction that renders any constitutional provision meaningless or inoperative). Accordingly, the term "office" embraces an unpaid state office such as membership on the DED governing board.

In sum, article XVI, section 40(d) prohibits a person from serving as both member of the DED governing board and as a legislator. As qualification for and acceptance of a second office would operate as an automatic resignation from the first office, see Pruitt v. Glen Rose Indep. Sch. Dist., 84 S.W.2d 1004 (Tex. Comm'n App. 1935, judgm't adopted), the board member would automatically resign from the DED office upon qualifying for the legislature.

SUMMARY

Because a member of the Texas Department of Economic Development governing board does not hold a "lucrative" office within the meaning of article III, section 19 of the Texas Constitution, that constitutional provision is not relevant to a board member's eligibility to run for legislative office or to serve as a legislator. Article III, section 19 does not require a board member to resign from office in order to run for legislative office and would not affect a member's eligibility to serve should he or she be elected to office. However, article XVI, section 40(d) of the Texas Constitution prohibits a state legislator from holding an unpaid state office and would preclude a person from serving as both a member of the Department of Economic Development governing board and as a legislator.

Yours very truly,

JOHN CORNYN
Attorney General of Texas

HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General, Opinion Committee

[1] Letter from Mr. Jeff Moseley, Executive Director, Texas Department of Economic Development, to Honorable John Cornyn, Texas Attorney General (Oct. 23, 2001) (on file with Opinion Committee) [hereinafter Request Letter].