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 

of the 50th Legislature 

to participate 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 not take the oath of office, Upon the receipt of the 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 to your question is yes. While Section 4 

of Article III of the Texas Constitution states that the term of the 

members of the House of Representatives shall be two years, Section 17 of 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 of the House are “officers* of this State as 

that term is used in the above section. Terre11 v, King, 118 Tex. 

237, 14 S.W.2d 786. And you state that Mr. Eanes did not qualify 

as a member of the 51st Legislature.1 So the provisions of Section 

17 are controlling here: that Mr. Heatly. as an officer of this State, 

shall continue to perform the duties of his office until his successor shall be duly qualified. 

The purpose of the constitutional provision is to insure, in so far as possible, that there be no cessation in the functions of government. It continues 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, 1 S.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 of the 51st Legislature but 

resigned thereafter and did not qualify for the 

office. the member of the 50th from that District 

shall continue to perform the duties of his office 

‘. 

in the 5lst Legislature until his successor is 

1 

He did not take the oath required by Section 1 of Article XVI 

which says: *Members of the Legislature * e D before they enter 

upon the duties of their offices, shall take the following oath D 0 0R 

For a discussion of what constitutes a #qualification” for the office of Rcprasen,+ive or Senator see C. M. Cureton”s opinion to 

in Reports and Opinions of the Attorney GenIt is assumed as a fact here that Mr. 

Eanes did not 
..’ - I’ ,,., 

_ ‘- 

Hon. &wwood Manford -‘Page 3 

selected at a special election and qualifies for 

the office. Sec. 17 of Art, XVI, Texas Castitution. 

Yours very truly, 

ATTOlWEYGENERALOF TEXAS 

JRG:crc 

BY I/ 

Joe R. Greenhill 

E*ecutive Assistant 

APPROVED: 

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