THE TIGHTENING NOOSE:

Confounding this understanding of impeachment, however, two early state constitutions actually limited impeachments to the time after the chief executive's term had ended; these states did not permit impeachment of a sitting governor. Additionally, a decision by the Texas Supreme Court in a case of a gubernatorial impeachment provides a practical reason why impeachments cannot be limited to sitting executives.

Consider first the impeachment of Texas Governor James E. Ferguson in 1917. Ferguson resigned the governorship prior to his conviction by the Senate, so he was not a sitting governor when the Texas Senate convicted him in its impeachment trial. He subsequently sought to run again for governor in 1924. The Texas Supreme Court held that Ferguson's impeachment actually occurred despite the fact that Ferguson had resigned his office prior to his conviction by the Senate.

The Texas Constitution, like the U.S. Constitution, does not limit the judgment from an impeachment to removal from office. Section IV of Article XV of the Texas Constitutions provides that "Judgment in cases of impeachment shall extend only to removal from office, and disqualification from holding any office of honor, trust or profit under this State." This language almost exactly parallels the language of Article 1, Section 3 of the U.S. Constitution. Both constitutions allow a future disability, disqualification to hold office in the future, as part of the outcome of an impeachment.

Despite the Senate's conviction, Ferguson sought to run for governor again in 1924. Against a lawsuit filed to prevent the Texas Democratic Party from listing him on the primary ballot, Ferguson argued that his impeachment trial ended without a conviction or judgment because he resigned his office before the Senate decided the case.

In its decision in Ferguson v. Maddox, the Texas Supreme Court gave short shrift to Ferguson's argument:

If the Senate only had power to remove from office, it might be said, with some show of reason, that it should not have proceeded further when the Governor, by anticipation performed, as it were, its impending judgment. But under the Constitution the Senate may not only remove the offending official, -- it may disqualify him from holding further office, and with relation to this latter matter, his resignation is wholly immaterial. For their protection the people should have the right to remove from public office an unfaithful official. It is equally necessary for their protection that the offender should be denied an opportunity to sin against them a second time. The purpose of the constitutional provision may not be thwarted by an eleventh hour resignation.

The reasoning applies to impeachments under the U.S. Constitution. 

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