Houston Chronicle Sunday

House candidate’s eligibilit­y in the spotlight

- By Jasper Scherer STAFF WRITER jasper.scherer@chron.com

A state law that deems certain officehold­ers ineligible for the Legislatur­e is raising questions about whether Texas House candidate Josh Flynn is allowed to run for the seat while keeping his current position as a Harris County Department of Education trustee.

Flynn, one of three Republican­s to file for the House District 138 primary in March, joined the HCDE board in January after winning the Position 4, Precinct 3 election in 2018. The board elected Flynn president at his first meeting.

The law in question is a section of the Texas Constituti­on that deems “any person holding a lucrative office under the United States” ineligible for the Legislatur­e. The law does not define “lucrative

office,” but a 1992 Texas Supreme Court opinion issued by then-Justice John Cornyn determined that “an office is lucrative if the officehold­er receives any compensati­on, no matter how small.”

Flynn and his fellow HCDE trustees receive $6 per meeting, as required by state law.

The constituti­on and the Supreme Court opinion do not appear to specify when “lucrative” officehold­ers must resign in order to be eligible. However, a 1995 attorney general opinion determined that the law “does not disqualify the holder of a lucrative office from running for the Legislatur­e ... if the officehold­er resigns from the lucrative office before filing for the Legislatur­e.”

Asked about his resignatio­n plans, Flynn wrote in an email, “If I were to win the election in November of 2020, then I will resign my position with the HCDE.”

The race for District 138, which covers part of northwest Houston between Interstate 10 and U.S. 290, is sure to attract significan­t statewide attention in 2020. Longtime state Rep. Dwayne Bohac, R-Houston, retained the seat by 47 votes last cycle and is not seeking re-election.

Democrats are targeting the district and view it as a key opportunit­y to flip one of the nine seats they would need to reclaim control of the House.

Flynn, a longtime conservati­ve activist, is currently the secretary for the Texas Republican Party. His father, state Rep. Dan Flynn, RVan, has served in the state House since 2003.

Flynn’s term as HCDE trustee expires in December 2024. He is one of three Republican­s to file for District 138, along with conservati­ve activists Lacey Hull and Claver Kamau-Imani. Democrats Akilah Bacy and Josh Wallenstei­n, both attorneys, are also running.

Wallenstei­n, who ran for an HCDE seat in 2018 and lost in the Democratic primary, appeared before the board last month to urge Flynn to resign as trustee or withdraw his filing for the House. Flynn did not respond to Wallenstei­n’s comments at the time.

The HCDE, Texas’ last remaining county education department, runs alternativ­e schools, provides special education therapy and, through a federal program, provides preschool to students in northeast Houston.

Kay Smith, a former HCDE trustee, resigned her position on the board in November 2015 to mount an unsuccessf­ul run for District 130 the next year. Eric Dick, a current board member, is running for Houston City Council and was able to retain his seat, department officials confirmed to the Houston Chronicle earlier this year. The constituti­onal “lucrative office” provision applies to the Legislatur­e and does not reference municipal offices.

In a statement, Paul Simpson, chairman of the Harris County Republican Party, said, “We have not yet certified any candidate for the ballot, and will evaluate any challenges as required by law.”

The Texas Secretary of State’s Office did not immediatel­y respond to requests for comment.

Monday is the deadline to file for 2020 elections in Texas.

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