Dawkins v. Meyer

825 S.W.2d 444, 1992 WL 34088

• Court: Texas Supreme Court
• Decided: April 1, 1992
• Docket: D-2032
• Status: Published

Opinions

OPINION

CORNYN, Justice.

In this original proceeding we decide whether Pattilou Dawkins, a member of the Board of the Texas Department of Mental Health and Mental Retardation (hereinafter, MHMR) whose term of office will end after the next regular session of the legislature begins, is eligible to be a candidate for the state House of Representatives. Dawkins has been declared ineligible by Fred Meyer, Chairman of the Republican Party of Texas, under his interpretation of the limitation on eligibility contained in article III, section 19 of the Texas Constitution. Because we agree that Daw-kins is currently ineligible to be a candidate for the House of Representatives under the provisions of article III, section 19 of the Texas Constitution, we deny Dawkins’ petition for writ of mandamus.

I.

The facts are undisputed. Pattilou Daw-kins was appointed to a term on the board of MHMR which ends on January 31, 1993, shortly after the next general session of the legislature is to begin. Board members, under a series of appropriation acts, have been entitled to receive reimbursement for expenses for transportation, for meals and lodging up to $75 per day, as well as compensation of $30 per day for each day of service.¹ On January 3, 1992, Dawkins applied to be a candidate in the Republican primary for State Representative, District 87. Fred Meyer, Chairman of the Republican Party of Texas, initially accepted her application and certified her as a candidate.

In a letter dated January 27, however, Meyer declared Dawkins ineligible for the legislative term she sought under the provisions of article III, section 19 of the Texas Constitution² on the grounds that she held, for an overlapping term, a “lucrative office” of the state. Meyer explained that the public record established that Dawkins was appointed to a term on the MHMR board which was to end on January 31, 1993, after the legislative term was to begin. He further explained that, as a member of the MHMR board, Dawkins was entitled to receive per diem compensation above and beyond reimbursement for actual and necessary expenses.

Dawkins filed this original proceeding, countering that her office cannot be considered lucrative because her expenses incurred in performing her duties on the MHMR board exceed the total of funds she is paid. Thus, she contends, her MHMR board membership cannot be a lucrative office within the meaning of article III, section 19 because she has suffered a net pecuniary loss from her public service on the MHMR board. She further contends that Meyer is relying on a superseded code provision and that, consequently, he wrongly assumed that she received compensation for each day of service in addition to full reimbursement for actual expenses. In her uncontroverted affidavit Dawkins avers that in her four and half years on the board she has incurred unreimbursed expenses of at least $2,000. See Whitehead v. Julian, 476 S.W.2d 844, 845 (Tex.1972) (uncontro-verted affidavit must be accepted as true). Second, Dawkins contends that this court should apply a canon of constitutional construction, ejusdem generis, in construing article III, section 19, and should thus conclude that her board membership is not the type of office which makes her ineligible to run for the legislature. We cannot agree with either of Dawkins’ assertions.³

II.

Dawkins’ first argument directly challenges this court’s holding in Willis v. Potts that any compensation, no matter how meager, renders an office “lucrative.” See 377 S.W.2d 622, 623 (Tex.1964). Doyle Willis was a Fort Worth city councilman who was entitled to receive $10 per diem for attending meetings, up to $520 per year, in addition to all necessary expenses. The Court rejected Willis’s argument that $10 per day was not “adequate” compensation and that, therefore, his office was not “lucrative” within the meaning of the constitution. This court held, relying on a case decided by the Wyoming Supreme Court, that the amount of the salary or compensation attached to an office is not material. Id. (citing Baker v. Board of Comm’rs, 9 Wyo. 51, 59 P. 797 (1900), quoting MECHEM, PUBLIC OFFICE § 13). Dawkins offers no compelling reason for overruling Willis.

Had Dawkins received only reimbursement for her expenses and no compensation for her activities with the MHMR, her position would not be considered lucrative. Reimbursement for expenses alone does not render an office “lucrative”. Whitehead v. Julian, 476 S.W.2d 844, 845 (Tex.1972). In Whitehead, the Court held that a mayor who received a $50 per month expense allowance, and whose expenses were greater than or equal to the expense allowance did not hold a “lucrative office.” The court continued to define a lucrative office as one in which the holder received a salary, fees, or “other compensation.” In this case, Dawkins receives more than reimbursement for expenses — she is compensated $30 per day independent of any expenses she incurred. Consequently, we defer to our own precedent and hold that her position on the board of the MHMR is lucrative.

Dawkins’ argument that her position cannot be considered lucrative because her expenses exceed her compensation is superficially attractive but, on closer scrutiny, is fraught with insurmountable problems. First, were we to adopt such a test, MHMR board members who do not incur additional expenses for meals or lodging because they live in or near Austin, or because they stay with relatives, would not be eligible to run for the legislature; and those, like Daw-kins, who spend in excess of their allotment for expenses and per diem would be eligible. Such disparate treatment of eligibility based on geography and differences in individual spending habits is insupportable.

Second, such a test could render article III, section 19 an irrational standard against which to judge eligibility for legislative office. If the test for whether an office is “lucrative” is that an office holder’s compensation exceeds his or her expenses, an office holder’s eligibility would be determined based purely on the level of his or her expenses. The resulting lack of a certain, meaningful standard is obvious.

These factors militate heavily against adopting a test for “lucrative” which measures an office holder’s compensation against his or her expenses. Instead, we stand by the rule we announced in Willis v. Potts that an office is lucrative if the office holder receives any compensation, no matter how small. Consequently, we hold that Dawkins’ position with MHMR is a lucrative position within the meaning of article III, section 19 of the Texas Constitution.

III.

Dawkins next argues that a canon of constitutional and statutory construction, the doctrine of ejusdem generis, requires us to hold that board membership is not the type of a lucrative office covered by the constitutional prohibition at issue. Under the doctrine of ejusdem generis, where specific and particular enumerations of persons or things are followed by general words in a constitutional provision, the general words are not to be construed in their widest meaning or extent, but are treated as limited and applying only to persons or things of the same kind or class as those expressly mentioned. Stanford v. Butler, 142 Tex. 692, 181 S.W.2d 269, 272 (1944); San Antonio Indep. School Dist. v. Dechman, 173 S.W. 525, 526 (Tex.Civ.App.—San Antonio 1915, writ ref’d). The purpose of the rule is to prevent general words used loosely with specific terms from including things not intended. Phillips v. Houston Nat’l Bank, 108 F.2d 934, 936 (5th Cir. 1940).

Ultimately, the goal of every rule of construction, including the rule of ejusdem generis, is to determine the intent of those who wrote the words in question. The rule of ejusdem generis can, therefore, only be used as an aid in ascertaining the intended coverage of article III, § 19, not to subvert that intent once ascertained. See United States v. Gilliland, 312 U.S. 86, 93, 61 S.Ct. 518, 522, 85 L.Ed. 598 (1941). No constitutional provision should be construed in such a way as to defeat its very purpose. Cramer v. Sheppard, 140 Tex. 271, 167 S.W.2d 147, 154 (1942). Analyzed with these principles in mind, we hold that article III, section 19 renders Dawkins ineligible to run for the legislature.

A.

The standards by which we interpret our constitution are plain. As we have recently stated:

The Texas Constitution derives its force from the people of Texas. This is the fundamental law under which the people of this state have consented to be governed. In construing [its] language ... we consider ‘the intent of the people who adopted it.’ In determining that intent, ‘the history of the times out of which it grew and to which it may be rationally supposed to have direct relationship, the evils intended to be remedied and the good to be accomplished, are proper subjects of inquiry.’ However, because of the difficulties inherent in determining the intent of voters over a century ago, we rely heavily on the literal text. We seek its meaning with the understanding that the Constitution was ratified to function as an organic document to govern society and institutions as they evolve through time.

Edgewood v. Kirby, 777 S.W.2d 391, 394 (Tex.1989) (citations omitted); Damon v. Cornett, 781 S.W.2d 597, 599 (Tex.1989). Judges are not free to question the wisdom of our constitution, but must give full effect to its plain language. Cramer v. Sheppard, 167 S.W.2d at 154. On the other hand, we must also be mindful that any constitutional or statutory provision which restricts the right to hold public office should be strictly construed against ineligibility. Willis, 377 S.W.2d at 623; see also Sears v. Bayoud, 786 S.W.2d 248, 251 (Tex.1990); Brown v. Meyer, 787 S.W.2d 42, 45 (Tex.1990).

B.

Dawkins contends that the framer’s intent in adopting article III, section 19 will not be defeated by allowing a person holding a part-time, unprofitable position on an appointed board to run for the legislature.

Article III, section 19’s historical antecedents date to a 1701 act of Parliament which rendered a “Person who [had] an Office or Place of Profit under the King or receive[d] a Pention from the Crown” ineligible to serve in the House of Commons. 12 & 13 Gul., ch. II, § 3. A 1707 statute stated that if a member of the House of Commons accepted an “Office of Profit” from the Crown, that member’s election to the House would be void “as if such Person so accepting was naturally dead.” 6 Anne, ch. 41, § 25. The policy underlying such prohibitions, including article III, section 19, is the doctrine of separation of powers which was considered a means of mitigating undue influence by the executive upon the legislative branch. 1 GEORGE D. BRADEN, THE CONSTITUTION OP THE STATE OF TEXAS: AN ANNOTATED AND COMPARATIVE ANALYSIS 134 (1977).

The framers’ intent behind article III, section 19, — to bolster the separation of powers doctrine — as well as this court’s decisions interpreting that section, control our decision in this case. Whether we agree or disagree with the wisdom of the constitutional method chosen to accomplish the framers’ intent is beside the point. We are not free, by implementing a rule of construction, to “stretch” the meaning of unambiguous words to achieve a result we might consider to be more desirable, or even better public policy. See Anguiano v. Jim Walter Homes, Inc., 561 S.W.2d 249, 253 (Tex.Civ.App.—San Antonio 1978, writ ref’d n.r.e.). This is precisely what acceptance of Dawkins’ arguments would require us to do. Because Dawkins’ proffered construction of article III, section 19 would violate the intent of the framers of our constitution, we decline to adopt it.

C.

Dawkins’ reliance on the doctrine of ejus-dem generis is similarly misplaced. First, Dawkins’ argument ignores the fact that we have held other offices, dissimilar to those specifically mentioned in article III, section 19, to be covered by the terms of the provision. See, e.g., Willis v. Potts, 377 S.W.2d 622, 623 (Tex.1964) (city councilman); Lee v. Daniels, 377 S.W.2d 618 (Tex.1964) (county commissioner); Kirk v. Gordon, 376 S.W.2d 560 (Tex.1964) (district attorney); Burroughs v. Lyles, 142 Tex. 704, 181 S.W.2d 570 (1944) (county superintendent of schools); see also Smith v. Dean, 554 F.Supp. 29 (N.D.Tex.1982) (may- or of Mesquite disqualified under this article). Thus, having held that article III, section 19 applies to a city councilman, a county commissioner, a district attorney, a county superintendent of schools, and a mayor, application of the rule of ejusdem generis cannot compel a different result for an MHMR board member.

D.

Second, Dawkins herself concedes that the purpose of section 19 is to mitigate the executive’s influence on the legislature. The doctrine would therefore require disqualification of all officeholders who were members of the executive branch in a way akin to the offices enumerated in section 19, for example, a “clerk of any court of record.” It logically follows, then, that a member of the MHMR board, which is an agency within the executive department holding significant policy-making powers⁴, is even closer to the intended purpose of the prohibition than a clerk of court would be. The purposes of separation of powers are better served by preventing a policy-making member of the executive department from running for the legislature than a clerk of the court. Under this logic, ejusdem generis actually argues against Dawkins’ position.

E.

Although Dawkins correctly contends that none of our decisions have interpreted the phrase “lucrative office” in light of the ejusdem generis doctrine, Illinois Supreme Court has done so. People v. Capuzi, 20 Ill.2d 486, 170 N.E.2d 625 (1960). The Capuzi court interpreted article IY, section 3⁵ of the Illinois constitution which at that time provided in part:

No judge or clerk of any court, secretary of state, attorney general, state’s attorney, recorder, sheriff, or collector of public revenue, member of either house of congress, or person holding any lucrative office under the United States or this state, or any foreign government, shall have a seat in the general assembly: provided, that appointments in the militia and the offices of notary public and justice of the peace, shall not be considered lucrative.

The Illinois court concluded in Capuzi that the offices of deputy coroner and deputy clerk, whose duties were largely ministerial and could be discharged at the caprice of their superiors, were not lucrative offices within the meaning of the Illinois constitution. The court reasoned that the preface of specific offices must have been intended to modify the phrase “any lucrative office.” The “enumerated offices stand as the guide or standard for determining the kind of office intended to be included within the means [meaning] of section 3 of article IV of the constitution.” 170 N.E.2d at 629-30.⁶ The court reasoned that deputy coroners and deputy clerks were not part of the same class as the enumerated officeholders because the deputies did not exercise governmental sovereignty in the performance of their duties and could be dismissed at the will of the office holders — the clerk and coroner.

Dawkins argues that the office of deputy clerk and deputy coroner are far more similar to the enumerated offices in the Illinois’s constitution than is the office of MHMR board member to the enumerated offices in the Texas Constitution. Dawkins contends that the general words “any person holding a lucrative office under the United States, or this State ...” is restricted by the designation of particular offices, i.e., Judges, the Secretary of State, the Attorney General, Clerks of any court of record. She argues that the listed positions are strikingly different from the position of a member of the MHMR board because they are full time jobs paying substantial salaries. They are not, she argues, of the same class as the $30 per diem compensation paid to part-time board members. In essence, Dawkins would have us distinguish our prior interpretations of the scope of article III, section 19 by effectively interlineating a “full-time” employment distinction within the section’s prohibition.

However, we had this opportunity in Willis and rejected it, holding that section 19’s prohibition applies to a part-time councilman.⁷ Dawkins fails to inform us of any authority which would permit us to reverse field on the distinction Dawkins urges.

IV.

The language of the constitution and our previous interpretations of article III, section 19 constrain us to hold that Dawkins is not currently eligible to be a candidate for the House of Representatives. Were we to decide otherwise under the banner of ejus-dem generis and through overly technical and strained distinctions with our prior holdings, the application of article III, section 19 would be rendered uncertain and unpredictable. We will not countenance a construction of our constitution that would so plainly generate uncertainty concerning the eligibility of legislative candidates. To hold otherwise would unnecessarily complicate the already difficult duties performed by election officials and unwittingly encourage additional litigation on this issue. We acknowledge the harshness of the result of the decision we make today. However, the power to change such a result by amending our constitution lies not in our hands, but in the hands of the sovereign people of the State of Texas.⁸

* * # * # *

For the foregoing reasons, Dawkins’ petition for writ of mandamus is denied.

Dissenting opinion by GONZALEZ, J., joined by HIGHTOWER, J. Dissenting opinion by GAMMAGE, J., joined by MAUZY, J.

1 . See, e.g., Act of August 30, 1991, 72d Leg., C.S., ch. 19, art. V, § 4, 1991 Tex.Gen.Laws 365, 1004 (1991-1993 appropriations act).

2 . Article III, section 19 provides:

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 to which he is elected or appointed, be eligible to the Legislature.

This provision has been characterized by the United States Supreme Court as imposing a "waiting period” for state officials before they become eligible for the legislature. Clements v. Fashing, 457 U.S. 957, 967, 102 S.Ct. 2836, 2846, 73 L.Ed.2d 508 (1982). That is, they must wait until their term of office expires before they are eligible for service in the legislature.

3 . Justice GONZALEZ’s dissent speculates how we might have answered contentions that Daw-kins has not made arising under the United States Constitution: but these are only straw-men which he raises and then proceeds to knock down. Similarly, Justice GONZALEZ’S arguments as to how we would have decided this case had Dawkins resigned her position on the MHMR board are only conjecture because that question is not before us.

4 . See TEXAS HEALTH & SAFETY CODE § 532.015. The MHMR board is responsible for, among other things, developing rules and general policies to guide MHMR. Id. MHMR is a immense state agency with an annual budget of more than one billion dollars. Act of August 30, 1991, 72d Leg., C.S., ch. 19, art. II, § 1, 1991 Tex.Gen.Laws 365, 742 (1991-1993 appropriations act).

5 . The provision of the Illinois constitution interpreted by the Capuzi court has been amended and now reads, in pertinent part:

No member of the General Assembly shall receive compensation as a public officer or employee from any other governmental entity for time during which he is in attendance as a member of the General Assembly.

No member of the General Assembly during the term for which he was elected or appointed shall be appointed to a public office which shall have been created or the compensation for which shall have been increased by the General Assembly during that term.

ILL. CONST, art. IV, § 2. While the "lucrative office” language has been deleted in the amended version of the provision, the analysis performed by the Capuzi court demonstrates the weakness of Dawkins’ argument based on the rule of ejusdem generis.

6 .The Capuzi court also rebuffed a separate argument under its general separation of powers provision, art. II, since the defendants were not exercising governmental sovereignty in the performance of their duties under their local positions, and since article IV, § 3 specifically dealt with the qualifications of members of the General Assembly. The suit started out as a declaratory judgment action filed concerning various members of the Assembly, and was converted to a quo warranto action. The court also emphasized that the Constitution obviously contemplated outside employment, since Assembly members received at that time only $5 per day, and that these positions were only minor ministerial appointments, held at the will and pleasure of the appointing authorities. And while one was civil service, all such employees were not officers.

7 . Justice GONZALEZ’s dissent advances a different standard — one that depends on whether the office holder's position is "the holder’s principal, if not exclusive occupation.” At 452 (Gonzalez, J., dissenting). However, this standard is troublesome because it would require the collection of evidence and perhaps the kind of fact finding that courts normally perform.

However, it is not the courts — at least in the first instance — who would be drawing the fine distinctions Justice GONZALEZ would have them draw. Instead, election officials, who are restricted to considering factors that appear as a matter of public record, Garcia v. Carpenter, 525 S.W.2d 160, 161 (Tex.1975); Weatherly v. Fulgham, 153 Tex. 481, 271 S.W.2d 938, 941 (1954), would be forced to make such decisions. And, if a dispute about the facts arose, election officials would be unable to determine a candidate’s eligibility because they have no power or authority to determine disputed questions of fact relating to a candidate’s eligibility for office. Canady v. Democratic Executive Comm., 381 S.W.2d 321, 323 (Tex.1964); Baker v. Porter, 160 Tex. 488, 333 S.W.2d 594, 595 (1960).

8 . Contrary to Justice GONZALEZ’s argument, a constitutional amendment, initiated by the legislature, is not the sole means of restoring the eligibility of Dawkins and other similarly-situated appointees to state boards and commissions. If the next appropriation act passed by the legislature provides that the monies paid such persons will consist of only legitimate expense reimbursements, no bar to legislative candidacy will exist. Here, Dawkins receives both such an expense reimbursement and an additional per diem compensation fixed by statute.

Furthermore, we cannot agree with the cynical argument that the legislature, as the elected representatives of the people, will steadfastly resist the entreaties of the electorate should Texans deem a constitutional amendment desirable. We point out the obvious: each legislator's continuation in office depends on his or her responsiveness to the collective will of his or her constituents.