Strake v. Court of Appeals for the First Supreme Judicial District

704 S.W.2d 746, 29 Tex. Sup. Ct. J. 240, 1986 Tex. LEXIS 942

• Court: Texas Supreme Court
• Decided: February 26, 1986
• Docket: C-5004
• Status: Published

Opinions

WALLACE, Justice.

Relator George W. Strake, Jr., Chairman of the State Republican Executive Committee refused to accept the application of Senator J.E. “Buster” Brown as a candidate in the 1986 Republican Primary for the Office of Attorney General of Texas for a four-year term commencing January 1, 1987. The Court of Appeals for the First Supreme Judicial District of Texas, in response to a petition filed by Senator Brown, issued a conditional writ of mandamus ordering that Strake certify Senator Brown as a candidate for the office sought. Strake has petitioned this court to issue a writ of mandamus directing the court of appeals to vacate its writ. We conditionally grant the requested writ.

Senator Brown first contends that this court has no jurisdiction to issue a writ of mandamus to the court of appeals. He cites a number of opinions of this court as authority. We note that all of those cases cited were issued prior to the 1983 amendment of TEX.REV.CIV.STAT.ANN. art. 1824, now codified as TEXAS GOV’T CODE ANN. § 22.221(b) (Vernon 1985), which gives the courts of appeals concurrent jurisdiction with this court to issue the writ of mandamus. We settled this contention adversely to Senator Brown in Peeples v. Fourth Supreme Judicial District, 701 S.W.2d 635 (Tex.1985), and Johnson v. Fourth Court of Appeals, 700 S.W.2d 916 (Tex.1985). The test set out in Johnson is applicable to this case. Mandamus issues only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy at law. 700 S.W.2d at 917.

In a case involving a public officer over which the court of appeals has mandamus power, that court makes an independent inquiry whether the act, or refusal to act, of the public officer is contrary to a clearly established legal duty. If so, the reviewing court will issue the writ. In reviewing by writ of mandamus the action of a court of appeals our focus remains on the point of origin of the case, in this case the action of Chairman Strake in denying Senator Brown’s application. We first determine if the action at the point of origin was proper. If we find it to be proper and the court of appeals has held otherwise, it has thus abused its discretion and we will grant the writ of mandamus directing the court of appeals to set aside its writ of mandamus. This court will closely scrutinize questions of constitutionality decided by the courts below.

Senator Brown is a member of the 69th Legislature. He was elected November 6, 1984, for a four-year term.

The Texas Constitution, article III, § 18 provides:

No Senator or Representative shall, during the term for which he was elected, be eligible to ... any civil office of profit under this State which shall have been created, or the emoluments of which may have been increased, during such term,....

The 69th Legislature passed a General Appropriations Act, House Bill 20, in 1985. Article 5, § 94 of that Act provides:

If a member of the 69th Legislature is elected to a civil office of profit under this state, the emoluments of which are established under this Act, then effective on the first day of the term of the civil office to which the member is elected, the emoluments of the office are reduced to a level equal to the level of emoluments in effect on January 1, 1985.

General Appropriations Act, ch. 980, art. 5, § 94, 1985 Tex.Sess. Law Serv. 7284, 7797 (Vernon). That same Act provides:

Agencies having a “SCHEDULE OF EXEMPT POSITIONS" following their appropriation may expend funds to employ those positions designated as exempt at the rate of 103% of the rate shown for fiscal year 1986 and 103% of the adjusted 1986 rate for fiscal year 1987.

General Appropriations Act, ch. 980, art. 5, § 2(b), 1985 Tex. Sess. Law Serv. 7284, 7758 (Vernon). The current Attorney General is receiving compensation at the increased rate provided by the above provisions. All state employees received the same three per cent increase in pay.

The first issue is whether the three per cent per year increase in pay is an increase in emoluments of the Office of Attorney General. Webster’s World Dictionary (1982) defines emoluments as the result of exertion; gain or profit; gain from employment or position; payment received for work; salary; wages; fees. Senator Brown contends that a three per cent per annum across the board increase for all state employees is not an increase in emoluments as contemplated by the constitution. Senator Brown bases his contention on the fact that the three per cent per annum increase is less than the rate of inflation. It must be noted that the increase in the emoluments of Office of Attorney General is three per cent per year which is equal to a six per cent increase over the biennium covered by the General Appropriations Act. The 69th Legislature was obviously of the opinion that the three per cent was an increase when considered from the constitutional perspective, else it would not have attached § 94 to the General Appropriations Act in an attempt to avoid the prohibitions contained in the constitution.

The next premise of Senator Brown’s argument is that the constitutional prohibition does not include an insubstantial increase. This is tantamount to an argument that the constitutional provision is ambiguous. If there is no ambiguity there is no room to consider whether the increase is substantial or insubstantial; an unambiguous provision is given its literal meaning.

The constitution makes no distinction between a small increase in emoluments and a large one, between an insubstantial increase and a substantial one. It clearly prohibits the designated legislators from holding an office the emoluments of which are increased. Had the framers of the constitution not intended to include all increases, they would surely have said so. We hold that the three per cent per annum increase in salary for the Attorney General is an increase in emoluments of that office.

The next issue is whether article 5, § 94 of the General Appropriations Act is sufficient to nullify the three per cent per annum increase as to Senator Brown, should he be elected. The constitution states:

No Senator ... shall ... be eligible to any civil office ... the emoluments of which may have been increased....

TEX. CONST, art III, § 18. As noted above, the emoluments of the office have been increased and the present Attorney General is receiving those increased emoluments. The fallacy in the legislative attempt to void the prohibition of the constitution is the attempt to make an appropriation to an office dependent upon the person who holds that office. In so doing the Legislature has attempted to include a general law within an appropriations act. This violates the Unity-in-Subject Clause of the Texas Constitution, article III, § 35 which states:

No bill, (except general appropriation bills, which may embrace the various subjects and accounts, for and on account of which moneys are appropriated) shall contain more than one subject, ....

This Unity-in-Subject Clause has been construed to mean that appropriations is a single subject and that any rider to an appropriations bill must relate to the appropriation of funds. Any rider dealing with a different subject is general legislation and prohibited by the Unity-in-Subject Clause. See Jessen Associates, Inc. v. Bullock, 531 S.W.2d 593, 600-01 (Tex.1975); Moore v. Sheppard, 192 S.W.2d 559, 561-62 (Tex.1946). A rider which attempts to alter existing substantive law is a general law which may not be included in an appropriations act. A comparison of the wording of the rider with article III, § 18 of the constitution indicates an intent that § 94 of the Appropriations Act nullify the constitutional prohibition. The rider is thus contrary to the constitution and is void.

We conditionally issue the writ of mandamus directing the Court of Appeals for the First Supreme Judicial District of Texas to vacate its conditional writ of mandamus directing Chairman George W. Strake, Jr. to certify Senator J.E. “Buster” Brown as an eligible candidate in the Republican primary for the Office of Attorney General. The writ of mandamus will issue only should the court of appeals fail to vacate its writ.

GONZALEZ, J., files a dissenting opinion in which CAMPBELL and SPEARS, JJ., join.