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.
Our goal in promulgating Rules 166b and 215(5) and our prior opinions interpreting these rules was to encourage full discovery of the issues and facts prior to trial so that parties could make realistic assessments of their respective positions. It was our hope that this would facilitate settlements and prevent trials by ambush.
Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex.1989) (emphasis added).1 After reviewing the record, however, we are of the оpinion that Tunstill‘s testimony, to the extent it was probative, was cumulative of other evidence properly admitted at trial. Therefore, the trial court‘s error did not amount to such a denial of the rights of the petitioner as was calculated to cause and probably did cause the rendition of an improper judgment. See Gee, 765 S.W.2d at 396; Tex.R.App.P. 184(b). Accordingly, the application for writ of error is denied.
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
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
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 state-
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 Brоwn‘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
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 conjecturе 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.
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
This is a case of first impression which requires the court to interpret and apply
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....
While this case presents an issuе of first impression, we are not without guidance from recent decisions. The analysis this court uses in determining the scope of Article III, Section 18 is well established. See Strake v. First Court of Appeals, 704 S.W.2d 746 (Tex.1986); Hall v. Baum, 452 S.W.2d 699 (Tex.1970). In determining whether a given benefit is an emolument of office, the court must confine its attention to the office in question, and must refrain from any consideration of the prospective candidate for that office. Hall, 452 S.W.2d at 703. In Hall the facts established that the motives of Senator Hall in seeking the office of governor “were of the highest order and in the interest of sound government.” Id. at 701. Had he been elected, Hall would have “benefit[ted] from the salary increase for only some seven and one half to eight months....” Id., at 703. Nevertheless, this court held
that the character of the increase of emoluments of office within the meaning of Sec. 18, Art. III ... is determined by the amount of the increase to the office and not by the part of the increase which would be paid to the one seeking the office.
Id. (emphasis added). Furthermore, the court must focus on the alleged emolument of the office, and must refrain from any consideration of the nature or amount of the increase. Strake, 704 S.W.2d 748. In Strake the court of appeals had held that a three percent cost of living adjustment in the attorney general‘s salary “does not constitute such a pecuniary benefit, gain, or advantage as to be an emolument of office.” Brown v. Strake, 706 S.W.2d 148, 152 (Tex.App.-Houston [1st Dist.]), rev‘d, 704 S.W.2d 746 (Tex.1986). This court reversed the judgment of the court of appeals and explicitly rejected its reasoning:
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.
Strake, 704 S.W.2d at 748 (emphasis added).
The majority concedes that the legislation in question “has the net effect of increasing the amount of benefits paid out to retired state officials and employees.” These benefits include, of course, the retirement benefit of the office of attorney general. See
In Strake, we adopted the Webster‘s World Dictionary definition of “emoluments“: “the result of exertion; gain or profit; gain from employment or position; payment received for work; salary; wages; fees.” 704 S.W.2d at 748. Black‘s Law Dictionary provides a similar definition:
The profit arising from office or employment; that which is received as a compensation for services, or which is annexed to the possession of office as salaries, fees or perquisites. Any perquisite, advantage, profit, or gain arising from the possession of an office.
470 (5th ed. 1979). This definition of “emoluments” has been the same throughout the history of the English language. See 1 The Oxford English Dictionary 853 (compact ed. 1971).
The Texas Constitution grants the legislature the power to create a retirement system for elected officials.
It is clear from the structure of the ERS plan, and from the state‘s seven and four-tenths percent contribution, that the ERS defined benefit for the office of attorney general is a form of compensation for service in that office.4 Those who disagree
This conclusion is supported by analogous authority from this court. This court has long recognized the compensatory nature of retirement benefits. The issue most often arises in our decisions concerning this state‘s community property scheme. In 1923 this court adopted the following general assessment of employee benefits:
It was in no sense a donation to the employé for individual merit, but was manifestly additional compensation for faithful and continuous service. It was as much a fruit of his labors as his regular wages or salary. It was in the strictest sense a “gain” added to the common acquests of the marital partnership, as the direct result and fruit of his labor and services.
Lee v. Lee, 112 Tex. 392, 247 S.W. 828, 833 (Tex.Comm‘n App.1923, opinion adopted). Forty-two years later, in Herring v. Blakeley, 385 S.W.2d 843, 846 (Tex.1965), this court, relying on and quoting from Lee, held that a vested interest in a profit-sharing retirement plan was community property, even though funds were not available at the time of divorce. The majority reasons that the ERS benefit in question is too “contingent and remote” to be an “emolument” bеcause the candidate elected attorney general may not become immediately vested in that benefit. This distinction turns a blind eye to the landmark case of Cearley v. Cearley, 544 S.W.2d 661, 666 (Tex.1976), where this court held that a contingent interest in a retirement benefit is community property. In the Cearley opinion this court again quoted from Lee, and further observed: “Pension and retirement benefits have become an increasingly
The constitution, statutes, and case law of this state provide ample grounds to support the conclusion that the attorney general‘s retirement benefit is an Article III, Section 18 “emolument“. Because the majority turns, for persuasive authority, to the law of other jurisdictions, I am compelled to elaborate on the cases they cite.5 Several states with constitutional provisions similar to our Section 18 have adopted the rule that the retirement benefit of an elected office is not an emolument. The seminal case for this construction is State ex rel. Todd v. Reeves, 196 Wash. 145, 82 P.2d 173 (1938), discussed and quoted by the majority, and cited consistently in other state‘s decisions adopting such a construction.6 E.g. State ex rel. Lyons v. Guy, 107 N.W.2d 211, 215-216 (N.D.1961); Campbell v. Kelly, 157 W.Va. 453, 202 S.E.2d 369, 376 (1974). In recently addressing the same issue which is now bеfore this court, the Nebraska Supreme Court correctly assessed the persuasive value of Reeves:
[Reeves] has no relevance to our inquiry. Therein, the Constitution provided that a legislator could not be elected to any office “the emoluments of which shall have been increased, during the term for which he was elected.” The Reeves court held that the adoption of a retirement plan for judges was not an “emolument“; thus, one who had been a legislator when the plan was adopted could seek election as a judge. In so ruling, the court said the word “emolument” impliеd actual pecuniary gain, rather than some imponderable and contingent benefit. There is nothing imponderable and contingent about paying a specified monthly allowance such as is contemplated by the plan before us. It should also be noted that the Reeves court specifically avoided deciding whether the retirement plan was a pension, adjusted or deferred income, or insurance.
State v. Pub. Employees Retirement Bd., 410 N.W.2d 463, 467 (Neb.1987) (citations omitted). Furthermore, Reeves is factually distinguishable from the case before us today. In Reeves the facts established conclusively that the aspiring candidate could not vest in the recently created rеtirement benefit in the term of office for which he was seeking election. 82 P.2d at 174. While the impoverished record in this case does not indicate whether Senator Brown participates in ERS or is vested in an ERS benefit, it also does not preclude these possibilities as did the record in Reeves.
I lay part of the blame for the error of the majority on the ad hoc manner in which the court disposed of this case. This case came before us as an application for writ of error. The court‘s routine for processing such an application is well established and well known.7 The aрplication is docketed by the clerk and randomly assigned to a justice. The parties’ arguments are studied and then presented to the court in conference. Generally, the justices may then hold the case for further study, vote to deny the writ, or vote to grant the writ. The average time for processing the appli-
This “standard operating procedure” is especially appropriate to a case of first impression under Article III, Section 18. As the court acknowledged in Hall, “[a] matter of such serious import requires that the suggested reasons be considered and examined somewhat in depth.” 452 S.W.2d at 705. Nevertheless, it appears that the court may have disposed of this case with unusual haste. The application for writ of error in this case was filed with the clerk of the court on December 29, 1989. 33 Tex.Sup.Ct.J. 143. Presumably, the applicatiоn was forwarded to chambers and randomly assigned to a justice who thoroughly reviewed the briefs of counsel and prepared a presentation for the court. Apparently, the court then met in conference and, on December 29, 1989, voted to grant the writ of error. Id. at 142. One must assume that after a thorough examination of the issues and arguments, and an exhaustive discussion of each justice‘s position, the court, on December 29, 1989, arrived at, and announced, its decision.8 Id. The reader is left to draw his or her own conclusions on the propriety of the court‘s procedures in this case.
In conclusion, the court of appeals, though clearly troubled with the judgment it rendered, has adopted the only correct application of Art. III, Section 18. As the court of appeals must have realized:
If Sec. 18, Art. III, has outlived its usefulness and there is no longer need for the proscriptions there provided, as some of the courts of other states have indicated, the Constitution itself prescribes the remedy through a constitutional amendment submitted to and adopted by the people.
Hall, 452 S.W.2d at 705. I would withdraw this court‘s “per curiam order” of December 29, 1989, and wоuld “refuse the application with the notation ‘Refused.‘” Tex.R.App.P. 133(a). I regret that the majority does not today realize what it will eventually accept as truth: that the momentary loss of face from the prompt acknowledgment of the good faith error in the precipitous rendition of the court‘s December 29, 1989 judgment would be inconsequential by comparison to the enduring ignominy which the court today ensures itself by refusing to admit that error.
MAUZY, J., joins in this dissent.