House candidate’s eligibility in the spotlight
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.