THE ATTORNEY GENERAL 

OF TEXAS 

AUBTXN. TEXAE 78711 

October 27, 1917 

Honorable 

Executive 

Employees 

- 

Retirement System of Re: The date on which legisTe~xas lators elected in 1966 were 

BOX 12337, Capitol Station 

Austin, Texas 78711 

eligible to take office. 

Joseph Murphy 

Director 

Opinion No. H-1679 

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 Constitution 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 Representative," 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 "immediately 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. 

p. 4417 
c . . . . 

Honorable Joseph Murphy - Page 2 (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 election in November, 1966, first became 

eligible to take the oath of office on 

January 10, 1967. 

Very truly yours, 

APPROVED: 

Texas 

c 

DAVID M. KENDALL, First Assistant 

p. 4418 
Honorable Joseph Murphy 

C. ROBERT HEATH, Chairman 

Opinion Committee 

jst 

- Page 3 (H-1079) 

p. 4419