# THE ATTORNEY GENERAL OF TEXAS AUBTXN. TEXAE 78711
October 27, 1917

Honorable Executive Employees - Retirement System of Re: The date onwhich legislators elected in 1966were Te~xas BOX 12337, Capitol Station Austin, Texas 78711 eligible to take office.

Joseph Murphy Director Opinion No. H-1679

Dear Mr.Anschutz: In order todetermine the retirement benefits due certain public servants you have requested our opinion regarding the date onwhich a legislator elected at thegeneral election in November, 1966, first became eligible to take the oath of office. Prior to 1966, article 3, section 4of the Texas Constitution provided that the term of office ofmembers of the House of Representatives "shall be twoyears from theday 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 "fouryears from the day of the general election." 398 S.W.2d at 926. The Court noted, however, "aclear distinction between 'termof 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 Representative," the returns be counted by the Secretary of State "[oln theMonday before the second Tuesday inJanuary following the election." The statute required the Secretary of State to "immediately issue a certificate of election to theperson receiving the higher number ofvotes." Itwould appear, therefore, that a legislator elected at thegeneral election held onNovember 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 toJanuary 9, 1967.

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Honorable Joseph Murphy -

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

take office following their election, on the day setby law for the convening of the Regular Session of the Legislature. . . . This amendment became effective "upon thedate that the official canvass of the returns shows . . .it . . .adopted." Torres v. State, 278 S.W.Zd 853, 855 (Tex.Crim.App. 1955); seeTex. Const. art. 17, 5 1. See alsoAttorney General Opinions O-6821 (1945); O-6278 (1944);o-2841-(1940). The official canvass was required by statute to takeplace onNovember 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 inNovember, 1966, became eligible to take the oath of office "on the day setby 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 isour opinion that a legislator elected at thegeneral election inNovember, 1966, first became eligible to take theloathof office on January 10, 1967. SUMMARY A legislator elected at the general election inNovember, 1966, first became eligible to take the oath of office on January 10, 1967. Very truly yours,

APPROVED: Texas

c DAVID M. KENDALL, FirstAssistant

p. 4418Honorable Joseph Murphy

C. ROBERT HEATH, Chairman Opinion Committee jst -Page 3 (H-1079)

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