In Texas, which officials have to file their signed anti-bribery statement with the Secretary of State?

Plain-English summary

Secretary of State Gwyn Shea asked the Attorney General to define "state officer" as that term is used in article XVI, section 1(c) of the Texas Constitution. Article XVI, section 1 sets out the oath of office for elected and appointed officials and also requires them to sign an "anti-bribery statement" before taking that oath, swearing they did not pay or promise anything of value for the office. In 2001 the voters amended section 1, and the new section 1(c) requires "state officers" to file the signed statement with the Secretary of State, while "all other officers" keep it with the official records of their office. The Secretary needed to know which officials fall on which side of that line.

The Attorney General concluded that "state officer" carries its usual narrow meaning in Texas law: an officer whose jurisdiction is coextensive with the boundaries of the state, or who immediately belongs to one of the three branches of state government. The opinion read section 1(c) together with the rule of ejusdem generis, under which a general phrase ("all other elected and appointed state officers") that follows a list of specific examples (members of the Legislature, the Secretary of State) is limited to things of the same kind as those examples, here state-level officers. The text of section 1(c) itself draws the distinction by separating "state officers" who file with the Secretary of State from "all other officers" who keep the statement locally, and the Legislative Council's published analysis of the 2001 amendment said the same thing: state officers keep filing with the Secretary, while local officers now retain the statement in their own records.

So state-level officers file with the Secretary of State, and local officers, such as county and school district officials, sign the statement but retain it with their office's records. The opinion noted that whether a particular officer is a "state officer" can be worked out by consulting the relevant statutes, constitutional provisions, and court decisions, and pointed to authority holding that school trustees and water district board members are not state officers for purposes of a related constitutional provision.

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.

What the opinion meant for those who asked

The Secretary of State (what the opinion held): The opinion told the Secretary that only state-level officers file the anti-bribery statement with that office. It defined "state officer" as one whose jurisdiction covers the whole state or who belongs to one of the three branches of state government, and said this definition should resolve most filing questions, with edge cases settled by consulting statutes, the constitution, and case law.

State-level elected and appointed officers (what the opinion held): The opinion treated members of the Legislature, the Secretary of State, and other state-level officers as the group that must file the signed statement with the Secretary of State before taking the oath of office.

Local officers, including county and school district officials (what the opinion held): The opinion read section 1(c) to require these officers to sign the statement but keep it with the official records of their own office rather than filing it with the state. It cited authority that school trustees and water district board members are not "state officers" under a related provision.

Common questions

Who counts as a "state officer" for the anti-bribery filing?
Under this opinion, an officer whose jurisdiction is coextensive with the state, or who immediately belongs to one of the three branches of state government. Members of the Legislature and the Secretary of State are the named examples.

Do local officials have to sign the anti-bribery statement at all?
Yes. The opinion is clear that all elected and appointed officers sign the statement before taking the oath. The difference is only where it goes: local officers keep it with their office records instead of filing it with the Secretary of State.

Why doesn't "all other elected and appointed state officers" sweep in everyone?
Because of the rule of ejusdem generis. The opinion read that general phrase as limited to officers of the same kind as the specific examples listed before it, that is, state-level officers, not every public official in Texas.

How do I tell whether a specific officer must file with the state?
The opinion said most cases are answered by its definition, and that closer calls can be resolved by checking the relevant statutes, constitutional provisions, and judicial decisions about whether that office is a state office.

Background and statutory framework

Article XVI, section 1(a) of the Texas Constitution sets the oath or affirmation that elected and appointed officers take before entering on their duties. Tex. Const. art. XVI, § 1(a); see Hendericks v. State, 49 S.W. 705, 705 (Tex. Civ. App. 1899, no writ). Section 1(b) requires those officers to sign an anti-bribery statement before taking the oath, swearing they did not pay or promise anything of value for the office. Tex. Const. art. XVI, § 1(b). Section 1(c), adopted in 2001 as part of a measure to clean up and harmonize the constitution, provides that members of the Legislature, the Secretary of State, and all other elected and appointed state officers file the signed statement with the Secretary of State, while all other officers retain it with the official records of the office. Tex. Const. art. XVI, § 1(c). Before the 2001 amendment, all elected and appointed officers filed with the Secretary of State.

The opinion explained that, in a broad sense, anyone holding public office in the state is an officer of the state. Jernigan v. Finley, 38 S.W. 24 (Tex. 1896); Ex parte Preston, 161 S.W. 115, 116 (Tex. Crim. App. 1913). But Texas law generally uses "state officer" in a narrower sense, for officers whose jurisdiction is coextensive with the state or who immediately belong to one of the three branches of state government. Lane v. McLemore, 169 S.W. 1073, 1074 (Tex. Civ. App.-Galveston 1914, no writ); Travis County v. Jourdan, 42 S.W. 543, 543 (Tex. 1897); San Antonio Indep. Sch. Dist. v. State, 173 S.W. 525, 527-28 (Tex. Civ. App.-San Antonio 1915, writ ref'd); see Tex. Const. art. II, § 1 (dividing government into legislative, executive, and judicial departments). The opinion applied the rule of ejusdem generis, under which general words following a specific list are limited to the same kind or class as those listed. San Antonio Indep. Sch. Dist., 173 S.W. at 526; Rooms with a View, Inc. v. Private Nat'l Mortgage Ass'n, 7 S.W.3d 840, 844 (Tex. App.-Austin 1999, no pet.); Stanford v. Butler, 181 S.W.2d 269, 272 (Tex. 1944). The Texas Legislative Council's analysis of the 2001 amendment described the change the same way: state officers keep filing with the Secretary of State, while the requirement for local officers is replaced with retention in the official records of the office.

Citations

Statutes and constitutional provisions:

• Tex. Const. art. XVI, § 1(a)
• Tex. Const. art. XVI, § 1(b)
• Tex. Const. art. XVI, § 1(c)
• Tex. Const. art. XVI, § 30a
• Tex. Const. art. II, § 1

Cases:

• Hendericks v. State, 49 S.W. 705, 705 (Tex. Civ. App. 1899, no writ)
• Jernigan v. Finley, 38 S.W. 24 (Tex. 1896)
• Ex parte Preston, 161 S.W. 115, 116 (Tex. Crim. App. 1913)
• Lane v. McLemore, 169 S.W. 1073, 1074 (Tex. Civ. App.-Galveston 1914, no writ)
• Travis County v. Jourdan, 42 S.W. 543, 543 (Tex. 1897)
• San Antonio Indep. Sch. Dist. v. State, 173 S.W. 525, 527-28 (Tex. Civ. App.-San Antonio 1915, writ ref'd)
• Rooms with a View, Inc. v. Private Nat'l Mortgage Ass'n, 7 S.W.3d 840, 844 (Tex. App.-Austin 1999, no pet.)
• Stanford v. Butler, 181 S.W.2d 269, 272 (Tex. 1944)
• State v. Hewitt, 52 N.W. 875 (S.D. 1892)

Prior Attorney General opinions referenced: DM-114 (1992), MW-177 (1980), C-303 (1966).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0575
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2002/jc0575.pdf

Original opinion text

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

OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS
JOHN CORNYN

November 6, 2002

Honorable Gwyn Shea Opinion No. JC-0575
Secretary of State
State of Texas Re: Meaning of "state officer" for purposes of
P.O. Box 12697 article XVI, section 1 of the Texas Constitution,
Austin, Texas 78711 which requires such individuals to sign an anti-
bribery statement (RQ-0555-JC)

Dear Secretary Shea:

You ask for a definition of the term "state officer" as it is used in article XVI, section 1(c) of the Texas Constitution.[1] Article XVI, section 1 sets out the official oath for elected and appointed officers and an anti-bribery statement that these persons must sign before taking the official oath. The term "state officer" as used in section 1(c) refers to state-level officers, and it does not include local officers. State-level officers must file the signed statement with the secretary of state, while local officers must retain the statement with the official records of the office.

Article XVI, subsection 1(a) sets out the oath or affirmation that elected and appointed public officers are required to take before entering upon the duties of their offices. See Hendericks v. State, 49 S.W. 705, 705 (Tex. Civ. App. 1899, no writ) (public officer is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public); Att'y Gen. Op. Nos. DM-114 (1992) at 3 n.3; MW-177 (1980) at 4 (public officer must take constitutional oath). Subsection 1(b) requires elected and appointed officers to sign an "anti-bribery statement," before taking the constitutional oath or affirmation of office. The elected or appointed officer must sign a written oath or affirmation that the officer has not paid or promised any thing of value or public office or employment "for the giving or withholding of a vote at the election at which I was elected or as a reward to secure my appointment or confirmation, whichever the case may be." TEX. CONST. art. XVI, § 1(b).

Subsection 1(c) provides for filing the signed statement:

(c) Members of the Legislature, the Secretary of State, and all other elected and appointed state officers shall file the signed statement required by Subsection (b) of this section with the Secretary of State before taking the Oath or Affirmation of office prescribed by Subsection (a) of this section. All other officers shall retain the signed statement required by Subsection (b) of this section with the official records of the office.

TEX. CONST. art. XVI, § 1(c) (emphasis added).

The text of subsection 1(c) was adopted in 2001, when the voters approved a legislative resolution designed to "eliminate obsolete, archaic, redundant, and unnecessary provisions and to clarify, update, and harmonize certain provisions of the Texas Constitution," including article XVI, section 1. Tex. H.J.Res. 75, § 8.01, 77th Leg., R.S., 2001 Tex. Gen. Laws 6709, 6719-20 (quoting caption). Before article XVI, section 1 was amended in 2001, it required all elected and appointed officers to file the anti-bribery statement with the secretary of state. See Tex. H.J.Res. 40, 71st Leg., R.S., 1989 Tex. Gen. Laws 6428, 6428-29. Now that only "state officers" are required to file with the secretary of state, you wish to know which officers are included in that term.

In a broad sense, all persons holding public office within the state or performing some of its governmental functions are officers of the state. See Jernigan v. Finley, 38 S.W. 24 (Tex. 1896); Ex parte Preston, 161 S.W. 115, 116 (Tex. Crim. App. 1913). The term "state officer" is, however, generally used in Texas statutes and constitutional provisions to describe a narrower class of officers, those officers whose jurisdiction is coextensive with the boundaries of the state or officers who immediately belong to one of the three branches of state government. See Lane v. McLemore, 169 S.W. 1073, 1074 (Tex. Civ. App.-Galveston 1914, no writ); see also Travis County v. Jourdan, 42 S.W. 543, 543 (Tex. 1897) (county treasurer is not within statute authorizing Texas Supreme Court to issue writs of mandamus against officer of the state government); San Antonio Indep. Sch. Dist. v. State, 173 S.W. 525, 527-28 (Tex. Civ. App.-San Antonio 1915, writ ref'd) (article XVI, section 30a of the Texas Constitution applies to the terms of office of state board members, and does not apply to terms of school board members).

In our opinion, "state officers" in article XVI, section 1(c), refers to officers "whose jurisdiction is coextensive with the state" or "officers [who] immediately belong to one of the three constituent branches of the state government." Lane, 169 S.W. at 1074 (quoting 23 AMERICAN & ENGLISH ENCYCLOPEDIA OF LAW 327; State v. Hewitt, 52 N.W. 875 (S.D. 1892)); see TEX. CONST. art. II, § 1 (powers of government are divided into the legislative, executive, and judicial departments, and each department is entrusted to a separate body of "magistracy"). Article XVI, section 1(c) makes it clear that the term "state officers" does not encompass all persons holding public office within the state, because the provision distinguishes between "state officers" who "shall file the signed statement . . . with the Secretary of State" and "[a]ll other officers," who "shall retain the signed statement . . . with the official records of the office." TEX. CONST. art. XVI, § 1(c).

Application of the rule of ejusdem generis to article XVI, section 1(c) shows which officers are to file the statement with the secretary of state. See San Antonio Indep. Sch. Dist., 173 S.W. at 526 (applying rule of ejusdem generis to construe article XVI, section 30a of Texas Constitution, which provides for terms of office); see also Rooms with a View, Inc. v. Private Nat'l Mortgage Ass'n, 7 S.W.3d 840, 844 (Tex. App.-Austin 1999, no pet.) (court uses same guidelines in interpreting constitutional provisions as it does in interpreting statutes). "Under the rule of ejusdem generis, where specific and particular enumerations of persons or things in a statute are followed by general words, the general words are not to be construed in their widest meaning or extent, but are to be treated as limited and applying only to persons or things of the same kind or class as those expressly mentioned." Stanford v. Butler, 181 S.W.2d 269, 272 (Tex. 1944). Section 1(c) of article XVI provides that "[m]embers of the Legislature, the Secretary of State, and all other elected and appointed state officers shall file the signed statement . . . with the Secretary of State." TEX. CONST. art. XVI, § 1(c). This section specifically identifies certain state-level officers who must file the written statement with the secretary of state, and, according to the rule of ejusdem generis, the "other elected and appointed state officers" who must file with the secretary are limited to state-level officers. Id.

Finally, in its analyses of proposed constitutional amendments to be voted on in November 2001, the Texas Legislative Council described the changes in the article XVI, section 1(c) filing requirements as follows:

Two current provisions requiring public officers to sign a sworn statement that they have not made a payment or promise to secure election or appointment are consolidated into a single provision applicable to all public officers, with minor wording changes in the statement. The requirement that state officers file the statement with the secretary of state is retained, but for local officers that requirement is replaced with a requirement that the statement be retained in the official records of the office.

TEXAS LEGISLATIVE COUNCIL, ANALYSES OF PROPOSED CONSTITUTIONAL AMENDMENTS 79-80 (2001) (emphasis added).

We conclude that article XVI, section 1(c) requires state-level officers, but not local officers, to file the signed anti-bribery statement required by section 1(b) with the secretary of state. Local officers must sign the statement and retain it with the official records of the office. The definition of "state officer" provided in this opinion should enable you to determine in most cases whether an elected or appointed officer must file the statement with your office. Questions about whether a particular officer is a "state officer" within article XVI, section 1(c) may be resolved by consulting relevant statutes, constitutional provisions, and judicial decisions. See, e.g., San Antonio Indep. Sch. Dist., 173 S.W. at 526 (school trustees are not state officers within article XVI, section 30a of Texas Constitution); Tex. Att'y Gen. Op. No. C-303 (1966) (water district board members are not state officers within article XVI, section 30a of Texas Constitution).

SUMMARY

Article XVI, section 1(b) of the Texas Constitution requires elected and appointed officers to sign an anti-bribery statement before taking the oath or affirmation of office required by article XVI, section 1(a). State-level officers, but not local officers, must file the signed statement with the secretary of state. Local officers must sign the statement and retain it with the official records of the office. Questions about whether a particular officer is a "state officer" within article XVI, section 1(c) may be resolved by consulting relevant statutes, constitutional provisions, and judicial decisions.

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

Susan L. Garrison
Assistant Attorney General, Opinion Committee