Dawkins v. Meyer, D-2032

• Decision Date: 25 February 1992
• Docket Number: No. D-2032,D-2032
• Parties: Pattilou DAWKINS, Relator, v. Fred MEYER, as State Chairman of the Republican Party of Texas, et al., Respondents.
• Court: Texas Supreme Court

Page 444

825 S.W.2d 444

Pattilou DAWKINS, Relator, v. Fred MEYER, as State Chairman of the Republican Party of

Texas, et al., Respondents.

No. D-2032.

Supreme Court of Texas.

Feb. 25, 1992.

Rehearing Overruled April 1, 1992.

John Mozolo, Wolf Puckett, Harlow Sprouse, Amarillo, for relator.

David Crawford, Amarillo, Fred Meyer, John W. Tunnell, John Hannah, Jr., Austin, Tex Lezar, Houston, Ken Anderson, Dallas, Robert D. Daniel, Houston, Bonnie Schomp, Amarillo, Toni Hunter, Gary Bledsoe, Austin, David Swinford, Dumas, Dan Morales, Austin, for respondents.

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 Dawkins 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 Dawkins 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 Constitution ² 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) (uncontroverted 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 Dawkins, 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...