Flynn attempts to skirt Texas Constitution’s prohibition against his running for State House District 138

Flynn attempts to skirt Texas Constitution’s prohibition against his running for State House District 138

Image: Josh Flynn (right) with his father, State Representative Dan Flynn (R-Van).

The Golden Hammer Staff Reports

Houston, December 15 – Harris County Department of Education President Josh Flynn, who is the political establishment candidate for the Republican nomination for House District 138 in Houston from which State Representative Dwayne Bohac (R-Houston) is retiring, appears to be playing legal games with the Texas Constitution’s provision which may prohibit Flynn from being on the ballot. The Texas Constitution, Article III, Section 19, makes clear that a candidate may not hold a “lucrative” office, no matter how small the compensation, in any other governmental entity and serve in the Texas Legislature during the term for which he was elected or appointed.

Flynn won election to the Harris County Department of Education (HCDE) in 2018 and took office in January, 2019. The term for which Flynn won election and took office extends through December 31, 2024. His HCDE colleagues elected him President of HCDE almost immediately upon his taking office. HCDE Board members received $6 per meeting for their work, as Texas law requires.

Article III, Section 19, of the Texas Constitution provides:

“No judge of any court, Secretary of State, Attorney General, clerk of any court, or any person holding a lucrative office under the United States, or this State, or any foreign government shall during the term for which he is elected or appointed, be eligible to the Legislature.”

Flynn’s election to HCDE, which is a subdivision of the State of Texas, would clearly make him ineligible to the Legislature during his HCDE term through December 31, 2024. The issue is not whether Flynn serves on HCDE but whether he is in the term for which the citizens elected him. Former Texas Attorney General John Cornyn, who is now a United States Senator representing Texas, made these legal principles clear in a February 12, 2002, Opinion No. JC-0464, which he issued.

Harris County Republican Party Chairman Paul Simpson has accepted Flynn’s application to appear on the ballot in the March 3, 2020, Republican Primary Election. Nevertheless, Chairman Simpson told The Golden Hammer Saturday night, “We are reviewing the pertinent available information and legal authorities, expect to receive more information soon, and hope to make a decision this coming week pursuant to the Texas Constitution and applicable statutes.” Businesswoman and conservative leader Lacey Hull and radio personality Apostle Claver have also filed for a place on the ballot to seek the Republican nomination for the District 138 seat.

Nevertheless, Flynn’s appearance on the Republican ballot is very troubling. After the issue arose in another publication, Flynn took action to attempt to maneuver around the Texas Constitution.

As Flynn very graciously confirmed during an exclusive interview with this newspaper on Saturday night, he carefully withdrew his name from the GOP ballot on Monday, December 9, then turned in a resignation to HCDE, and then refiled as a candidate for the House District 138 Republican nomination on Monday afternoon before the 6 p.m. filing deadline. Flynn even paid a second $750 filing fee that afternoon.

The problem, however, is that resignations from subdivisions of the State of Texas do not become effectively immediately under State law. When asked about that problem, Flynn responded, “I don’t know what to say about that.”

When asked whether Flynn will continue to serve as President and on the Board of HCDE until the appointment of his successor, Flynn answered, “I hadn’t even thought about that.”

Flynn’s answer about whether he intends to continue to serve on HCDE’s Board is not consistent with remarks he made in the Harris County Republican Party Headquarters on Monday, according to two sources who were there at the time but have requested anonymity for fear of reprisal. Flynn said, “Don’t worry; I’m not really resigning; there’s a law that I can do my duties until they find someone to replace me.”

Flynn’s maneuvering, however, doesn’t get him around the fact that he took office after election to a full term which extends through the end of 2024. Therefore, his resignation would seem irrelevant under the provision of Article III, Section 19, of the Texas Constitution, as set forth above.

Meanwhile, several sources have confirmed to The Golden Hammer that democrat Josh Wallenstein, who is also running for the House District 138 seat, plans to file suit to remove Flynn from the ballot should Flynn prevail in the Republican Primary Election and become the nominee.

Flynn told this newspaper, “I thought it was important to avoid as many lawsuits as possible. For anyone to say that I can’t be on the ballot is just silly.”

If Harris County Republicans choose Flynn as their District 138 nominee, they risk finding out just how silly the serious eligibility question actually is.

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