           THE       ATTORNEY              GENERAL
                         OF      TEXAS
                     AUBTXN.     TEXAE     78711


                       October    27,    1917




Honorable Joseph Murphy                   Opinion No. H-1679
Executive Director
Employees Retirement System of            Re: The date on which legis-
  -
  Te~xas                                  lators elected in 1966 were
BOX 12337, Capitol Station                eligible to take office.
Austin, Texas 78711

Dear Mr. Anschutz:

     In order to determine the retirement benefits due certain
public servants you have requested our opinion regarding the
date on which a legislator elected at the general election in
November, 1966, first became eligible to take the oath of office.

     Prior to 1966, article 3, section 4 of the Texas Constitu-
tion provided that the term of office of members of the House of
Representatives "shall be two years from the day of their
election."   In Spears v. Davis, 398 S.W.2d 921 (Tex. 19661,
the Supreme Court similarly construed article 3, section 3,
relating to the terms of senators. The Court observed that
"the usual senatorial term" extends "four years from the day
of the general election."   398 S.W.2d at 926. The Court noted,
however, "a clear distinction between 'term of office' and an
individual's incumbency in office," and.referred approvingly to
Attorney General Opinion WW-1476 (19621, which held that a
member of the Legislature may not "qualify for office by taking
the oath" until the canvassing of the returns of the election.
398 S.W.2d at 928.

     In 1966, article 8.41 of the Election Code directed that,
"[i]n all general elections for State Senator or State Representa-
tive," the returns be counted by the Secretary of State "[oln
the Monday before the second Tuesday in January following the
election."  The statute required the Secretary of State to "im-
mediately issue a certificate of election to the person receiving
the higher number of votes."  It would appear, therefore, that a
legislator elected at the general election held on November 8,
1966, was not on that date eligible to take the oath of office,
since the Election Code then provided that his election could
not be certified prior to January 9, 1967.




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    Honorable Joseph Murphy                  -   Page2 (H-1079)

         At the general election held on November 8, 1966, Texas
    voters also approved amendments to sections 3 and 4 of article
    3 of the Texas Constitution, so that, since 1966, both senators
    and representatives

                take office following their election, on
                the day set by law for the convening of
                the Regular Session of the Legislature. . . .

    This amendment became effective "upon the date that the official
    canvass of the returns shows . . . it . . . adopted."   Torres v.
    State, 278 S.W.Zd 853, 855 (Tex. Crim. App. 1955); see Tex. Const.
    art. 17, 5 1. See also Attorney General Opinions O-6821 (1945);
    O-6278 (1944); o-2841-(1940).   The official canvass was required
    by statute to take place on November 25, 1966, the "seventeenth
    day after the election." Election Code arts. 8.37, 8.38. On
    that date, the constitutional amendment preempted article 8.41
    of the Election Code, and legislators elected in November, 1966,
    became eligible to take the oath of office "on the day set by
    law for the convening of the Regular Session of the Legislature,"
    January 10, 1967. Tex . Const. art. 3, 59 3, 4; V.T.C.S. art.
    5422. Accordingly, it is our opinion that a legislator elected
    at the general election in November, 1966, first became eligible
    to take the loath of office on January 10, 1967.

                              SUMMARY

                A legislator elected at the general elec-
                tion in November, 1966, first became
                eligible to take the oath of office on
                January 10, 1967.

                                        Very truly yours,




                                                            Texas

    APPROVED:



c
    DAVID M. KENDALL, First Assistant




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Honorable Joseph Murphy           - Page 3   (H-1079)




C. ROBERT HEATH, Chairman
Opinion Committee

jst




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