ANDREW M u r r ANN JOHNSON

Cair Vice CHAIR

C O M M I T T E E O N G E N E R A L I N V E S T I G A T I N G

H o u s e o F REPRESENTATIVES

MEMORANDUM

TO: M e m b e r s o f t h e House o f Representatives

FROM: House C o m m i t t e e on G e n e r a l I n v e s t i g a t i n g
RE: A p p l i c a b i l i t y o f Resignation o f a House M e m b e r to the C o n s t i t u t i o n a l A c t i o n o f E x p u l s i o n

House Resolution 1542, calling for the expulsion o f Representative B r y a n Slaton from the House o f Representatives, is
scheduled to be heard by the House today. On Monday, M a y 8, Rep. Slaton tendered a written resignation from o f f i c e to the
C h i e f C l e r k and the Governor o f the State o f Texas. Members have asked i f a resignation from office negates the need to consider
e x p u l s i o n from the House.

Section 17, A r t i c l e X V I , o f the Texas Constitution provides that ?all officers o f this State shall continue to perform the
duties o f their offices until their successors shall be duly qualified.? T e r m e d the ? h o l d o v e r ? p r o v i s i o n , this section o f t h e
c o n s t i t u t i o n has been d e t e r m i n e d to expressly apply to m e m b e r s o f the L e g i s l a t u r e by the A t t o r n e y G e n e r a l of Texas in
O p i n i o n N o . P D - 7 6 0 (1949) f o l l o w i n g a member?s resignation from office. Subsequent Attorney General opinions have
consistently upheld this application o f constitutional law, a f f i r m i n g that resigned members (a/k/a holdover members): continue to
q u a l i f y f o r mileage r e i m b u r s and e mp e rnd i te m
s expenses (Atty. Gen Opinion No. PD-788) (1949); c o nt o st e r vi e ans members u e
o f House committees ( A t t y . Gen. Opinion No. W W - 9 6 3 ) (1960); and continue to receive a salary until a qualified successor takes
office (Atty. Gen. O p i n i o n N o . W W - 1 4 7 6 ) (1962). Because a member who has resigned continues in office, the member is also
entitled to continue to receive the constitutional per diem provided during the regular legislative session and special sessions, i f
any, under a Texas Supreme Court opinion that held that actual attendance is not required to claim the constitutionally authorized
compensation. Spears v. Sheppard, Southwestern Reporter, Second Series, vol. 150, pg. 770 (1941) (declaring ?the Constitution
definitely fixes the pay o f a member o f the Legislature . . . and does not make the right to such per diem dependent upon actual
attendance on the sessions o f the Legislature. A l l that is required is that the Legislature be in session and that the claimant be a
member thereof?).

Section 11, A r t i c l e HI o f the Texas Constitution states, ?Each House may determine the rules o f its own proceedings,
punish members for disorderly conduct, and, w i t h the consent o f two-thirds, expel a member[.]? Modeled on almost identical
expulsion language in the United States Constitution, all interpretations provide that an expulsion is given immediate effect.
Because a m e m b e r is r e m o v e d f r o m o f f i c e b y expulsion, Section 17?s ? h o l d o v e r ? p r o v i s i o n (above) does n o t a p p l y to an
expelled m e m b e r ; it has long been held by our courts that the right to holdover does not reside in one who has been removed
f r o m office. M a n n i n g v. Harlan, Southwestern Reporter, Second Series, vol. 122, pg. 707 (Texas Court o f C i v i l Appeals at El
Paso, 1938); Willmann v. C i t y o f San Antonio, Southwestem Reporter, T h i r d Series, vol. 123, pg. 481 (Tex. Court o f Appeals at
San A n t o n i o . 2003).

Q U E S T I O N : DOES A R E S I G N A T I O N F R O M OFFICE N E G A T E T H E NEED T O CONSIDER EXPULSION F R O M

T H E HOUSE?

A N S W E R : N O , E X P U L S I O N IS S T I L L A P P R O P R I A T E . A resigned m e m b e r r e m a i n s a ?holdover? in office, m e a n i n g

t h a t m e m b e r still receives benefits o f office, u n t i l a successor is qualified. A c c o r d i n g l y , expulsion is the o n l y m e t h o d to
i m m e d i a t e l y end a m e m b e r ' s service i n the L e g i s l a t u r e . &
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MEMBERS: C H A R L I E GEREN * O s c a r L o n c o r i a * D a v i p SPILLER

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