Brown v. Meyer

• Decision Date: 07 February 1990
• Docket Number: No. C-9396,C-9396
• Citation: 787 S.W.2d 42
• Parties: J.E. "Buster" BROWN, Petitioner, v. Fred MEYER and Patricia A. Hill, Respondents.
• Court: Texas Supreme Court

Page 42

787 S.W.2d 42

J.E. "Buster" BROWN, Petitioner, v. Fred MEYER and Patricia A. Hill, Respondents.

No. C-9396.

Supreme Court of Texas.

Feb. 7, 1990.

Rehearing Overruled Feb. 7, 1990.

Jerry S. Payne and Lee N. Joseph, Houston, for petitioner and J.E. "Buster" Brown, Lake Jackson, petitioner, pro se.

P. Michael Jung, Jay A. Brandt, and Peter A. Warrick, Dallas, for respondents.

OPINION

GONZALEZ, Justice.

The issue in this case is whether article III, section 18 of the Texas Constitution disqualifies a mid-term legislator from running for the office of Attorney General because of legislation which has the effect of increasing retirement benefits for certain elected state employees. The trial court rendered judgment declaring that Senator J. E. "Buster" Brown is eligible to be a candidate for Attorney General in the Republican primary. With one justice dissenting, the court of appeals reversed and rendered judgment declaring Brown disqualified. 782 S.W.2d 315 (Tex.App.--Houston [1st Dist.] 1989). On December 29, 1989, on a joint motion of the parties for an expedited decision, we granted the writ of error of petitioner Brown, reversed the judgment of the court of appeals, and rendered judgment affirming the judgment of the trial court. ¹

The issue at hand was raised in a declaratory judgment action by Brown against Fred Meyer, chairman of the Republican Party of Texas. Patricia A. Hill, a Republican candidate for the Office of Attorney General, intervened as a defendant and counterclaimed for judgment against Brown declaring his ineligibility to run for Attorney General.

The parties stipulated to the operative facts at trial. Brown meets the qualifications to be a candidate for Attorney General in the 1990 Republican primary unless article III, section 18 of the Texas Constitution makes him ineligible. He is a mid-term state senator and acted in that capacity in the 71st Legislature.

House Bill 101, enacted by the 71st Legislature, raised the salary of district judges. Compare Act of June 16, 1989, ch. 1258, §§ 1, 3, 1989 Tex.Gen.Laws 5073, 5074, with Act of August 6, 1987, ch. 78, art. IV, § 1, 1987 Tex.Sess.Laws 751, 755. The retirement benefits paid to qualified elected officials are indexed to the salary of state district judges. ² Holders of statewide offices, as well as legislators, ³ are classified as "elected officials" under the retirement system, and their participation in the system is optional. Tex. Gov't Code § 812.002 (Vernon Supp.1990). Thus, by raising district judges' salaries, House Bill 101 has the net effect of increasing the amount of benefits paid out to retired state officials and employees.

Article III, section 18 of the Texas Constitution provides in relevant part:

No Senator or Representative shall, during the term for which he was elected, be eligible to (1) 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....

Based on our holding in Strake v. First Court of Appeals, 704 S.W.2d 746 (Tex.1986), the court of appeals held that article III, section 18 of the constitution disqualified Senator Brown from seeking statewide office.

In Strake, the chairman of the Republican Party of Texas refused to accept Senator Brown's application to be a candidate in the primary race for Attorney General in 1986 because he had held legislative office when an across-the-board salary increase for all state employees was enacted. We observed that the word "emolument" was defined in Webster's World Dictionary (1982) as "the result of exertion; gain or profit; gain from employment or position; payment received for work; salary; wages; fees." Strake, 704 S.W.2d at 748. The issue in Strake was not what constitutes an emolument; there can be no question that a salary is an emolument. Rather, the issue that we decided was whether a three percent raise, which was less than the increase in the cost of living, was an "increase" in emoluments as that term is used in the constitution. Id. Our court held that it was.

As we noted in Spears v. Davis, 398 S.W.2d 921, 923 n. 1 (Tex.1966), this provision of article III predates statehood, and was obviously influenced by the Constitution of the United States. ⁴ Approximately 38 other states have similar constraints. ⁵ 1 G. Braden, The Constitution of the State of Texas: An Annotated and Comparative Analysis 133 (1977).

A leading case deciding the scope of "emoluments" is State ex rel. Todd v. Reeves, 82 P.2d 173 (Wash.1938). See 63A Am.Jur.2d Public Officers & Employees § 76, at 725 (1984); 67 C.J.S. Officers § 24, at 274 (1979). In that case a senator's qualifications to run for the Washington Supreme Court were challenged because he was a member of the legislature that enacted a retirement system for the judiciary. The court defined "emolument" as "profit from office, employment, or labor; compensation; fees or salary". State ex rel. Todd, 82 P.2d at 175. The court held:

This definition is substantially the same as that found in the decisions of the courts. That the word was employed in the constitution in its ordinary sense, as implying actual pecuniary gain, rather than some imponderable and contingent benefit, can hardly be questioned ... [emphasis added].

Id. See also State v. Dubuque, 68 Wash.2d 553, 413 P.2d 972, 980-81 (1966) (salary increase which will not be received unless reelected does not disqualify from running for office, reaffirming Reeves ).

This construction of emoluments as including actual pecuniary gain rather than contingent benefit has been followed by many of the courts that have considered the question. See, e.g., Bulgo v. Enomoto, 430 P.2d 327 (Haw.1967) (disability compensation benefits are too contingent or remote to constitute an increase in emoluments); State ex rel. Lyons v. Guy, 107 N.W.2d 211 (N.D.1961) (contribution towards social security withholding is not increase in emoluments because the benefits are remote and contingent); Campbell v. Kelly, 157 W.Va. 453, 202 S.E.2d 369, 376 (1973) (pension plan for legislators does not violate constitutional provision setting salary but prohibiting other "emoluments"); State ex rel. Johnson v. Nye, 148 Wis. 659, 135 N.W. 126 (1912) (constitutional disqualification based on increase of emoluments cannot be based on conjecture or speculation). But see State v. Public Employees Retirement Bd., 226 Neb. 176, 410 N.W.2d 463 (1987) (retirement plan is encompassed in constitutional prohibition of additional "pay" or "perquisites"); Chamber of Commerce of E. Union City v. Leone, 357 A.2d 311 (N.J.1976) (pension plan is "compensation"); Boryszewski v. Brydges, 37 N.Y.2d 361, 372 N.Y.S.2d 623, 334 N.E.2d 579 (1975).

Although the decisions of other states construing their constitutions are persuasive authority, our holding rests upon the language and prior construction of our own constitution. When determining the purpose of a provision, we will consider the evil to be remedied and the good to be accomplished by that provision. Markowsky v. Newman, 134 Tex. 440, 136 S.W.2d 808, 813 (1940). The purpose of article III, section 18 is to keep improper motivations of personal gain from influencing lawmakers when they establish the rewards of elective office. Hall v. Baum, 452 S.W.2d 699, 703 (Tex.1970). Our recognition of this purpose is tempered, however, by the principle that constitutional provisions which restrict the right to hold public office should be strictly construed against ineligibility. Id., at 702.

Applying this rule of construction, we conclude that an increase in "emoluments" as contemplated in article III, section 18 means only actual pecuniary gain and not contingent and remote benefit. Whether a party will actually receive a retirement benefit is dependent on numerous variables. An employee must agree to participate in the program, requiring withholding of salary. The record here is silent about whether Senator Brown is a participating member in the retirement system. Also, the employee must accumulate the requisite number of years "service credit" before any benefit can vest. In the case of an elected official, this will generally require not only serving a full term, but also reelection to office. And the official must remain alive until the earliest time that benefits may vest.

We hold, therefore, that the retirement benefits for legislators and other elected officials are not embraced within the term "emoluments" as used in article III, section 18 of our Constitution. Accordingly, we reverse the judgment of the court of appeals, and affirm that of the trial court.

DOGGETT, J., not sitting.

RAY, J., dissents with opinion joined by MAUZY, J.

RAY, Justice, dissenting.

I respectfully dissent. Today the majority, with strained and expedient reasoning, turns its back on the plain language of the Texas Constitution and departs drastically from recent decisions of this court.

This is a case of first impression which requires the court to interpret and apply Article III, Section 18 of the Texas Constitution. The facts are not in dispute. ¹ J.E. Brown was reelected in 1988 to a four year term in the Texas Senate, where he has served since 1981. In 1989 the 71st Legislature voted to increase the salary of district judges. See Act of June 16, 1989, ch. 1258, § 4, 1989 Tex.Gen.Laws 5075. This legislation had the effect of raising the retirement benefit of the office of attorney general. Although Senator Brown's elected term has not expired, he now wishes to run for the office of Texas Attorney General in the March 1990 Republican primary election. Senator Brown filed a declaratory judgment action to determine whether Article III, Section 18 renders him ineligible for that election. He is otherwise eligible to be a candidate. The district court rendered judgment for Brown, declaring he was eligible to run. The court of appeals reversed the judgment of the district court and...