                      EA~ORNEY                     GENERAL
                               OFTEXAS
                               Aun~xiw n.TEXAS
PRICE   DANIEL
..wTORNEYGENERAL



                              January   25.1949



    Hon. Durwood Manford, Speaker
    The House of Representatives
    51st Legislature
    Austin, Texas                            Opinion No. V-760

                                             Re:   Eligibility of a member
                                                   of the 50th Legislature
                                                   to participate in the 51s~
                                                   until his successor qual-
                                                   ifies.

    Dear Sir:

                   Your letter of January 24. 1949, reads:

                   “Mr. W. E. Heatly was the duly elected and
            qualified member of the House of Representatives
            from the 104th District in the Fiftieth Legislature,
            1947.    Mr. J. R. Eanes was elected to such office
            for the Fifty-first Legislature. 1949. After the
            election Mr. Eanes became seriously ill. Because
            of such illness Mr. Eanes resigned before qualify-
            ing for the office.  He did not take the oath of of-
            fice, Upon the receipt of the letter of resignation,
            the Governor called a special election which is to
            be held on or about February 10, 1949.

                   “I would appreciak your opinion as to wheth-
            er Mr, Heatly is eligible to serve as a Representa-
            tive of that district until such time as a Represent-
            ative is elected at the February special election;”

                   The answer to your question is yes. While Section 4
    of Article III of the Texas Constitution states that the term of the
    members of the House of Representatives shall be two years, Sec-
    tion 17 of Article XVI further says that:
Hon. Durwood Manford - Page 2




                 MAI1officers within this State shall con-
         tinue to perform the duties of their offices un-
         til their successors shall be duly qualified.’

              Members of the House are “officers* of this State as
that term is used in the above section.   Terre11 v, King, 118 Tex.
237, 14 S.W.2d 786. And you state that Mr. Eanes did not qualify
as a member of the 51st Legislature.1   So the provisions of Section
17 are controlling here: that Mr. Heatly. as an officer of this State,
shall continue to perform the duties of his office until his succes-
sor shall be duly qualified.

              The purpose of the constitutional provision is to in-
sure, in so far as possible, that there be no cessation in the func-
tions of government. It continues the officer in the office with all
the powers incident thereto until his successor has duly qualified,
Jones v. City of Jefferson. 66 Tex. 576, 1 S.W. 903; State v. Jor-
don, 28 S.W. 2d 921 (Civ. App. 1930. writ dismPd); 34 Tex. Jur, 373,
Officers, Sec. 31; 46 C. J. 968, Officers, Sec. 110; annotation 74
A. L. R. 486.



                            SUMMARY


                Where a person was elected to the House
         of Representatives of the 51st Legislature but
         resigned thereafter and did not qualify for the
         office. the member of the 50th from that District
         shall continue to perform the duties of his office
‘.       in the 5lst Legislature until his successor is




     1
    He did not take the oath required by Section 1 of Article XVI
which says: *Members of the Legislature * e Dbefore they enter
upon the duties of their offices, shall take the following oath D0 0R
For a discussion of what constitutes a #qualification” for the of-
fice of Rcprasen,+ive   or Senator see C. M. Cureton”s opinion to
                      in Reports and Opinions of the Attorney Gen-
                           It is assumed as a fact here that Mr.
Eanes did not
    ..’          -                I’    ,,.,




_          ‘-




          Hon.   &wwood     Manford    -‘Page   3




                     selected at a special election and qualifies for
                     the office. Sec. 17 of Art, XVI, Texas Casti-
                     tution.

                                                           Yours very truly,

                                                ATTOlWEYGENERALOF               TEXAS




                                                BY   I/
                                                            Joe R. Greenhill
                                                          E*ecutive Assistant

          JRG:crc

                                                APPROVED:




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