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

GENERAL January 25.1949
Hon. Durwood Manford, Speaker The House of Representatives 51st Legislature Austin, Texas Opinion No. V-760 Re: Eligibility of a member ofthe 50th Legislature toparticipate in the 51s~ until his successor qualifies. 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 qualifying for the office. He did nottake the oath of office, Uponthe receipt ofthe 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 whether Mr, Heatly is eligible to serve as a Representative of that district until such time as a Representative is elected at the February special election;” The answer toyour question is yes. While Section 4 of Article IIIof the Texas Constitution states that the term of the members of the House of Representatives shall be twoyears, Section 17of Article XVI further says that:Hon. Durwood Manford - Page 2

MAI1 officers within this **State** shall continue to perform the duties of their offices until their successors shall be duly qualified.’ Members ofthe House are “officers* ofthis State as that term is used in the above section. Terre11 v, King, 118 Tex. 237, 14 S.W.2d 786. Andyou state thatMr. Eanes did not qualify as a member of the 51st Legislature.1 Sothe provisions of Section 17are controlling here: that **Mr.** Heatly. as an officer ofthis State, shall continue to perform the duties ofhis office until his successor shall be duly qualified.

The purpose ofthe constitutional provision is to insure, in so far as possible, thatthere be no cessation in the functions of government. Itcontinues 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, 1S.W. 903; State v. Jordon, 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 ofthe 51st Legislature but resigned thereafter anddid not qualify for the office. the member ofthe 50th from that District shall continue to perform the duties of his office

‘
. in the 5lst Legislature until his successor is

1He did nottake the oath required by Section 1ofArticle XVI which says: *Members ofthe Legislature *eDbefore they enter uponthe duties of their offices, shall take the following oath D00R For a discussion ofwhat constitutes a #qualification” for the office of Rcprasen,+ive or Senator see C. M. Cureton”s opinion to in Reports andOpinions ofthe Attorney GenItis assumed as afact here that Mr. Eanes did not..’ - I’ ,,.,

_ ‘- Hon. &wwood Manford

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selected at a special election and qualifies for the office. Sec. 17of Art, XVI, Texas Castitution. Yours very truly, ATTOlWEYGENERALOF TEXAS

JRG:crc BY I/ Joe R. Greenhill E*ecutive Assistant

APPROVED:

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