                            ~IIPTI-IN        11.   TExAB

                                        January      0,    1965




Honorable  John Connally                                  Opinion    No.   C-373
Governor  of Texas
Capitol Building                                          Re:     Eligibility of Legislator  for
Austin, Texas                                                     appointment to another state
                                                                  office under tlie facts stated.

Dear Governor   Connally:

        You have requested              an opinion        based     on the following   question:

            “Where a vacancy occurs in a state office by virtue of the
        resignation  of an incumbent,  can a member of the 58th Legis-
        lature be appointed to that vacancy,  after his reelection but
        prior to the time he takes the oath of office as a member of
        the 59th Legislature?  I’

         The answer to the above question                       turns on the construction     of Article
III, Section 18 of the Texas Constitution,                       which reads:

            “No Senator or Representative      shall, during the term for
        which he may be elected,~ be eligible to any civil office of
        profit under this State, which shall have been created,       or
        the emoluments    of which may have been increared during
        such term; no member of either Houre shall, during the
        term for which he is elected,     be eligible to any office or
        place, the appointment to which may be made, in whole or
        in part, by either branch of the Legislature;     and no member
        of either House shall vote for any other member for any of-
        fice whatever,   which may be filled by a vote of the Legisla-
        ture, except in such cases as are in this Constitution provided.
        Nor shall any member of the Legislature        be interested,
        either directly or indirectly,    in any contract with the State,
        or any county thereof,    authoriaed by any law passed during
        the term for which he shall have been elected. ‘I

        The critical   language           is that which is underlined.



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Honorahle   John Connally,    page 2 (C-373)



        This office has consistently  held that any appointment which requires
Senate confirmation   is an appointment “made in whole or in part, by either
branch of the Legislature.  ” This is such an office.    Attorney Cener..l’s
Opinion No. O-1092 (1939).

         According   to the Legislative  history a8 set out in Volume 1, page
582, Vernon’s    Texas Constitution,    the above quoted section of the Consti-
tution was clearly designed to prevent the appointment of Legislators       dur-
ing a period of time when they could vote on the filling of an office,    or,
by virtue of their official position,   would be able to unduly influence an
appointment.

        Basically,  that portion of Section 18 with which we are concerned
makes two reouirements      in order for the inhibition to become effective--
namely,  (1) member of either House and (2) during the term of the office
to which he is elected.   If a person faile to meet either requirement,    then
there would be no inhibition under Section 18 which would prevent his
appointment.

         On the meaning of the term “member”        it is well    settled that if a
candidate who is elected to an office fails or refuses to        qualify he does
not become an office holder.      Flatan v. State, 56 Tex.       93. For, as Judge
Pop4 so aptly put it,  “until  one  qualifies or enters upon     the duties of an
office,  he does not ‘hold’ office. ‘I Purcell v. Carrillo,        349 S. W. 2d 263,
(Tex. Civ. App. 1961).

         Although there are no Texas decisions         exactly parallel to the ques-
tion presented   in the instant caoe, the Texas Supreme Court during the past
year wrote several decisions       interpreting   Section 19 of Article III of the
Texas Constitution dealing with the eligibility        of other office holders,      and
it is to there casee that we may look to guidance for the solution of this
problem.     The decision most directly in point is that of the Texas Supreme
Court in Lea v. Danielr,       377 S. W. 2d 618 (1964).       In this case the Court
held that once the person is (1) elected (2) takes his oath and (3) begins
holding office,   the constitutional   inhibition attaches,      and he is therefore
rendered ineligible for the additional specified         office during the term for
which he is elected.     In discussing    whether or not the respondent Jorrie
could resign from one office to seek another, the Court said:


         a lucrative offic
         stitution in question   applies   and that person   is made ineligible




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Honorable   John Connally.   page 3 (C-373)


        to the Legislature    during the entire term of the office he then
        holds.   Whez&rTewas          elected County Commissioner      of
        Bexar County and qualified to and began holding such office.
        Article III. Section 19, Constitution       of Texas, became appli-
        cable to him and said to him, ‘you are not eligible to the
        Legislature   during the term of office of County Commissioner
        to which you have been elected. ’ Nothing Jorrie did after that
        time can affect his eligib bility. He was already ineligible      to
        the Legislature    and the subsequent act of resignation     at any
        point of time cannot thereby make him eligible once more.
        We construe the constitutional       provision as allowing no excep-
        tions as to ineligibility   once it has been established.   ”
        (Underlining    ours)

         Certainly,   when the term for which a Legislator       has been elected
has expired,    there is no longer any constitutional    inhibition against his
appointment as the disability continues only during the term for which he
was elected.     See Attorney General’s   Opinion No. V-703 (1948).        In thin
connection we wish to point out that a difference      exists in a situation
where the term has expired and the office holder,         although elected for a
new term hae not yet qualified,     and in a situation where the office holder
has qualified for a new term and then seeks to resign.          The cases of
Lee v. Daniela,     supra, and Kirk v. Gordon, 376 S. W. 2d 560 (Tex. Sup.
1964) both deal with the latter type situation in which an office holder,
during the term of his office,    sought to resign to seeks another office.
In the Kirk care, the Court said:

        1’. . . It is the fact that the term of office of dirtrict attorney
        to which he was elected conflicts       with the term of office of
        members        of the House of Representatives    which controls. ”

In rejecting the argument that the terms did not overlap since it would not
be necessary    that he be sworn in as a member of the House of Representa-
tives until after the first of the year, the Court said:

            “When the qualified electors    have cast their ballote and
        their votes have been canvassed,      the election process   is at
        an end and the term of office for the one receiving the highest
        number of votes begins,    regardless    of when he qualifies or
        whether he ever qualifies.     The Constitution plainly rays
        that the term of office of members      , . . ohs11 be two years from




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Honorable    John Connally,    page 4 (C-,373)


          the date of their election. We are not at liberty to say that
          that means two years from the date the Legislature,    to
          which the member is elected,   convenes. ‘I 376 S. W. 2d, at
          page 562.

         Consequently,    a Legislator who was reelected to office but who
has not qualified for the new term of office does not in our opinion become
a qualified member of the new Legislature       by virtue of such election,    as
Article XVI, Section 1 of the Texas Constitution requires him to take the
prescribed    oath before he qualifies for the naw    term of office for which he
was elected.     Only when he takes this oath does he become a qualified
member of the Legislature      during the term for which he was elected and
the inhibition of Section 18 then applies.     We do not feel that this construc-
tion is in conflict with Kirk v. Gordon,    supra.     The Court in that instance
was considering     only when the term of a Legislator      began, and was not
concerned with the time at which the constitutional        inhibition would attach
as a result of election to this term.    The Daniel6 case. aupra, resolved
any apparent conflict by stating it was necessary       for the individual to qual-
ify for an office for the inhibition to apply.    (In both of these cases,   the job
seeker was holding office in an existing term and was already under the
inhibition of the Constitution. ) For as etated in Attorney General’s        Opinion
No. O-5106 (1943) until the time that he takes the oath, he is merely entitled
to the office and only upon taking the constitutional      oath does he in fact be-
come a member of the Legislature.

          When the term of the individual ends and his service as a Legislator
 ceases,    it would follow that he is eligible to assume the duties of the new
 office to which he may be appointed,          wnlesr some other inhibition exlats.
 In this connection,     the provisions     of Article XVI, Section 17, Texas Consti-
 tution, requiring an officer to “hold-over”          until his successor   hao qualified,
 in order to prevent vacancies,         does not apply to one who elects to accept
‘and qualify for a second office,        for as a matter of law he has vacated the
 firet office.   Section 40 of Article XVI prohibits the holding of two public
 offices at the same time by the same individual.             47 Tex. Jur. 2d ppn. 63-64,
 Sec. 42; State ex rel Peden v. Valentine,            198 S. W. 1006 (Tex. Civ. App.,
 error ref. 1917); Pruitt v. Glen Rose I.S.D. Il. 126 Tex. 45, 84 S.W.Zd
 1004 (1935); See also State V. Brinkerhoff,           66 Tex. 45, 17 S. W. 109 (1886);
 Brencourt v. Parker,        27 Tex. 558.

          For the sake of argument,   let us assume that the subject of the
inquiry   is two persons instead of just one. Suppose that A was elected to




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Honorable   John Connally,    page 5 (C- 373)


the 58th Legislature       in November,      1962, served his term and did not seek
reelection;    B ran to succeed A, was elected in November,             1964, but has
not yet qualified by taking his oath of office nor has he begun holding this
office.   In this situation,      would either A or B be ineligible for appointment?
A would not be ineligible because the term for which he was elected has
expired under Article I I I, Section 4 of the Constitution,           and the holding of
the Kirk case, supra.         That term began in November,        1962 and ended in
Novsr,         1964.     B is not ineligible,    because under the holding of the
Daniels case, supra, he has not yet qualified and has not begun holding the
omand        therefore,     Article III, Section 18 has not yet been invoked as to
him.     Until he qualifies,     takes his oath, and begins holding office,      he is not
a member of either house.           Sound logic will not allow us to reach the conclu-
sion that because A and B are the same person,            that this alone would render
him ineligible for the appointment.           The Supreme Court of Texas has held
that any constitutional      provision   which restricts  the right to hold public office
should be strictly      construed against ineligibility.    Willis’“.    Potts, et al, 377
S. W. 2d 622 (Tex. Sup. 1964).         We must therefore    conclude tha.t under the
authorities    which we have cited and the reasoning above given, that the
answer to your question must be in the affirmative.

                                  SUMMARY

        A member of the 58th Legislature    who is reelected but does not qualify
for his new term of office as a member of the 59th Legislature    is not ineligible
to be appointed to another state office because of Article III, Section 18 of the
Texas Constitution.




                                           &I&
                                           Attorney   General

OPINION     COMMITTEE:

Hawthorne Phillips
Stanton Stcne
W. V. Geppert
Paul Phy
Roger Tyler




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