                             L%.USTXN   11.   %-E?LAS

  WILL    WILSON
ATTOIRNEY    GENER*L
                           December 19, 1961

      Honorable P. Frank Lake           Opinion No. w-1228
      Secretary of State
      Austin, Texas                     Re:      Date on which a State Repre-
                                                 sentative ceases to be a
                                                 member of the House of
                                                 Representatives,under the
      Dear Mr. Lake:                             stated facts.
                  Your request for an opinion of this office reads as
      follows:
                 'The Honorable James A. Turman, Speaker of the
            House of Representatives, has raised a question as
            to the expiration of the term of office of Honorable
            Franklin Scott Spears, State Representative from
            the Sixty-Eighth Representative District, Place No.
            2, comprising Bexar County, Texas. The circumstances
            are that Representative Spears resigned effective
            December 15, 1961 and such resignation was accepted
            by the Governor. The unofficial returns indicate
            that Mr. Spears was elected to the Texas Senate at
            the Special Election held on December 1.6;however,
            neither he nor his successor, who was also elected
            on December 16, can take their oaths of office and
            qualify for the respective offices until the results
            have been officially canvassed, and the results
            announced and certificates of election issued as
            provided by law.
                 "It would appear under the provisions of Sec-
            tion 17 of Article XVI of the Texas Constitution
            that a member of the Legislature holds over until
            his successor Is duly elected and qualified and
            that Mr. Spears can continue to perform the duties
            of his office until such time. Attorney General
            Opinion No. v-760 seems to substantiate this
            position.
                 'The urgency of an answer to this question is
            that Representative Spears is the Chairman of a
            Special House Committee which meets on Thursday,
            December 21, and the Speaker of the House desires
Honorable P. Frank Lake, page 2 (~~-1228)


     to know if Representative Spears will be duly
     authorized to continue acting in his capacity
     as chairman of such Committee until his suc-
     cessor has qualified for the office or until
     Mr. Spears has qualified as a member of the
     Senate.
          "I extend my respects and appreciation for
     your early consideration of this matter."
          While your question is framed to ask when Representa-
tive Spears' membership in the House of Representatives ceases,
it is apparent from your letter that the real concern is as to
when his membership on the Special House Committee terminates.
In this instance, these dates coincide.
          Termination of membership on interim committees of
the Legislature is governed by Article 5&29e of Vernon's Texas
Civil Statutes, as amended by Section 9 of the Legislative
Reorganization Act of 1961 (Chapter 303, Acts of the 57th
Legislature, Regular Session, 1961, codified as Article 5429f
of Vernon's Texas Civil Statutes). Article 5429e now reads:
           "Section 1. That the membership of any duly
     appointed Senator or Representative on the Legis-
     lative Budget Board or on the Legislative Council,
     or on any other Interim Committee,shall, on the
     following contingencies, terminate, and the vacancy
     created thereby shall be immediately filled by
     appointment for the unexpired term in the same
     manner as other appointments to the Legislative
     Budget Board, the Legislative Council, or the
     other Interim Committee, as the case may be, are
     made:
           "(a)   Resignation of such membership;
          "(b) Cessation of membership in the Legis-
     lature for death or any other reason.=
          Subdivision (a) of this statute refers to resignation
of membership on the interim committee. Representative Spears
has resigned as a member of the House of Representatives, but
he has not submitted a resignation of his membership on the
interim committee. This subdivision, therefore, does not apply
to the fact situation before us. It remains to determine when
his membership on the committee terminates by virtue of his
Honorable P. Frank Lake, page 3 (~~-1228)


cessation of membership in the Legislature--in other words,
on what date doe he cease to be a member of the House of
Representatives.Y.
          Article XVI, Section 17, of the T,exasConstitution
provides that "all officers of this State shall continue to
perform the duties of thzir offices until their successors
shall be duly qualified.   Attorney General's Opinion v-760
(19491, referred to in your opinion request, held that this
constitutional provision applies to the office of State
Representative, and that after expiration of a Representative's
elected term of office this "hold-over" provision continues
him in the office with all the powers incident thereto until
his successor has duly qualified.
          Opinion V-760 dealt with continuation in office
after the expiration of the term for which the officer was
elected. The hold-over provision, which has been construed
by the courts as mandatory, also continues an officer in the
office, following his resignation, until his successor has
qualified. Jones v. City of Jefferson, 66 Tex. 576, 1 S.W.
903 (1886); Keen v. Featherston, 69 S.W. 983 (Civ.App. 1902,
error ref.); Plains Common Consol. School Dist. No. 1 V.
Hayhurst, 122 S.W.2d 322 (Civ.App. 1938).
          Although the hold-over provision is said to be
mandatory, an officer may divest himself of an office before
his successor has qualified, by himself qualifying for and
entering upon the duties of another office which he cannot
lawfully hold at the same time. State ex rel. Peden v.
Valentine, 198 S.W. 1006 (Civ.App. 1917, error ref.); Pruitt
V. Glen Rose Independent School Dist. No. 1, 126 Tex. 45,
84 S.W.2d 1004 (1935).


          lUnder the present facts, Representative Spears'
membership in the Senate will commence simultaneously with
cessation of his membership in the House, if he qualifies
for the Senate before his successor qualifies for the House,
and in those circumstances there would have been no cessation
of his membership in the Legislature. However, this sub-
division obviously must be construed to mean cessation of
membership In the branch of the Legislature from which the
member was appointed to the interim committee.
Honorable P. Frank Lake, page 4 (~~-1228)


          A person elected to an office qualifies by taking the
oath of office and giving bond, if one is required by law. 34
Tex.Jur., Public Officers, Sec. 24, and cases cited. No bond is
required of a member of the Legislature, but he must take the
oath prescribed by Article XVI, Section 1, of the Texas Consti-
tution before entering upon the duties of his office. Repre-
sentative Spears' membership in the House will cease when he
takes the oath as Senator or when his successor in the House
has qualified by taking the oath, whichever event occurs first.
                          SUMMARY
         Where a State Representative resigns to run
    for an unexpired term in the State Senate and is
    elected to that office, his membership in the House
    of Representatives continues until he takes the
    oath as Senator or until his successor in the House
    of Representatives takes the oath for that office,
    whichever event occurs first. Tex. Const., Art.
    XVI, Sec. 17.
                                    Yours very truly,
                                    WILL WILSON
                                    Attorney General of Texas



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                                               . Wall
                                         Assistant
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APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
J. C. Davis, Jr.
Howard Mays
Marietta Payne
Marvin Thomas
REVIEWED FOR THE ATTORNEY GENERAL
By: Houghton Brownlee
