                          AUUTIN.      -             rl9711



                                   April   12, 1974



The Honorable Bill Neal                                  Opinion   No.     H- 278
District Attorney
Wilbarger   County Courthouse                            Re: Whether a co.unty judge may
P. 0. Box 1484                                           be a candidate for election to
Vernon,   Texas   76384                                  the State Senate.



Dear Mr.   Neal:

      You have requested        our opinion   on the question:

                    “Is Texas County Judge whose present term as
                County Judge expires December        31, 1974 and who is
                otherwise  qualified, eligible to become a candidate
                for the Texas Senate in the upcoming regular election
                to be held on November     5, 1974?”

      Section   19 of Article    3 of the Constitution    of Texas       is:

                    “No judge of any court, Secretary    of State, Attorney
                General,   clerk of any court of record,  or any person
                holding a lucrative  office under the United States,   or
                this State, or any foreign government    shall during the
                term for which he is elected or appointed, be eligible
                to the Legislature.  ”

       Here, the word “eligible”  refers to the time when the duties of the
office are to be assumed   rather than to the time when the election for the
office is held. Kothman v. Daniels,     397 S. W. 2d 940 (Tex. Civ. App. 1965,
no writ).

       Prior to 1966, Sections  3 and 4 of Article  3 of the Constitution provided
that Senators and Representatives,.   respectively,   took office immediately
following their election and, on this basis,   it was held that a district attorney,
a county commissioner,     and a city councilman,   whose terms extended past




                                           p. 1297
.   -




        The Honorable    Bill   Neal   page 2 (H-278)



        the general election were ineligible to be elected to the Legislature.
        Kirk v. Gordon,    376 S. W. 2d 560 (Tex.  1964); Lee v. Daniels,   377
        S. W. 2d 618 (Tex. 1964); Willis v. Potts,    377 S. W. td 622 (Tex.   1964).

               In November   1966, Sections   3 and 4 of Article 3 were amended so
        that each contains the provision    that the senator or representative “shall
        take office following their election, on the day set by law for the convening
        of the Regular Session of the Legislature.      . .”

               The day set by law for the convening       of the Legislature    in Regular
        Session is the second Tuesday in January.          (Article 3, Sec.    5, Texae.
        Constitution; Article 5422, V. T. C. S. ).

                We are of the opinion, therefore,   that a county judge, whose term
        of office will expire December    31, 1974, is not made ineligible by Article
        3, Sec. 19, Texas Constitution,    to run for election as state senator        for
        a term to commence     the secondTuesday    in January, 1975.   Because         the
        unexpired term of the Judge is less than one year, Article 16, Sec.            65
        of, the Constitution does not apply.

                                           SUMMARY

                              A county judge whose unexpired term is less
                        than one year and will expire prior to the convening
                        ~of the regular   session of the Legislature is not made
                         ineligible to become a candidate for the State Senate
                        by Article    3, Sec. 18, or Article 16, Sec. 65 of the
                        Texas Constitution.

                                                             Very   truly yours,




                                                             JOHN L. HILL
                                                             Attorney General      of Texas




                                                p. 1298
L

    _   -




            The Honorable   Bill Neal   page   3 (H-278)




            David M. Kendall,   Chairman
            Opinion Committee




                                                 p. 1299
