WILL WILSON

ATTOIRNEY GENER*L L%.USTXN 11. %-E?LAS

December 19, 1961

Honorable P. Frank Lake Secretary of State Austin, Texas OpinionNo. w-1228
Re: Date on which a State Representative ceases to be a member of the House of Representatives,underthe Dear Mr. Lake: stated facts.

Your request for an opinion of this office follows: reads as

'TheHonorable James A. Turman, Speaker of the House of Representatives,has raised a question as to the expiration of the term of office of Honorable Franklin Scott Spears, State Representativefrom the Sixty-EighthRepresentativeDistrict, Place No. 2, comprisingBexar County, Texas. The circumstances are that RepresentativeSpears resigned effective December 15, 1961 and such resignationwas accepted by the Governor. The unofficial returns indicate that Mr. Spears was elected to the Texas Senate at the Special Electionheld on December 1.6; however, neither he nor his successor,who was also elected on December 16, can take their oaths of office and qualify for the respective offices until the results have been officially canvassed, and the results announced and certificatesof election issued as provided by law.
"Itwould appearunder the provisions of Section 17 of Article XVI of the Texas Constitution that a member of theLegislature holds over until his successor Is duly elected and qualified and that Mr. Spears can continue to perform the duties of his office until such time. Attorney General OpinionNo. v-760 seems to substantiate this position. 'Theurgency of an answer to this question is that RepresentativeSpears is the Chairman of a Special House Committeewhich meets on Thursday, December 21, and the Speaker of the House desiresHonorable P. Frank Lake,page 2 (~~-1228)

to know if RepresentativeSpearswill be duly authorized to continue acting in his capacity as chairman of such Committeeuntil his successorhas qualified for the office or until Mr. Spearshas qualified as a member of the Senate.
"I extendmy respects and appreciationfor your early considerationof thismatter." While your question is framed to ask when Representative Spears'membership in the House of Representatives ceases, it is apparent from your letter that the real concern is as to when his membership on the Special House Committee terminates. In this instance, these dates coincide.

Termination of membership on interim committeesof the Legislature is governed by Article 5&29e of Vernon's Texas Civil Statutes, as amended by Section 9 of the Legislative ReorganizationAct of 1961 (Chapter303, Acts of the 57th Legislature,Regular Session, 1961, codified as Article 5429f of Vernon's Texas Civil Statutes). Article 5429e now reads:

"Section1. That the membership of any duly appointed Senator or Representativeon the Legislative Budget Board or on the LegislativeCouncil, or on any other Interim Committee,shall,on the following contingencies,terminate,and the vacancy created thereby shallbe immediatelyfilled by appointment for the unexpired term in the same manner as other appointments to the Legislative Budget Board, the LegislativeCouncil, or the other Interim Committee, as the case may be, are made:"(a) Resignation of suchmembership; "(b) Cessation of membership in the Legislature for death or any other reason.= Subdivision (a)of this statute refers to resignation of membership on the interim committee. Representative Spears has resigned as a member of the House of Representatives,but he has not submitteda resignationof his membership on the interim committee. This subdivision, therefore, does not apply to the fact situationbefore us. It remains to determinewhen his membership on the committee terminatesby virtue of hisHonorable P. Frank Lake, page 3 (~~-1228)

cessation of membership in the Legislature--inother words, on what date doe he cease to be a member of the House of Representatives.

Y.
Article XVI, Section 17, of the T,exas Constitution provides that "allofficers of this State shall continue to perform the duties of thzir offices until their successors shall be duly qualified. (19491, Attorney General's Opinionv-760

referred to in your opinion request,held that this constitutionalprovision applies to the office of State Representative,and that after expiration of a Representative's elected term of office this "hold-over"provision continues him in the officewith all the powers incident thereto until his successorhas duly qualified.

OpinionV-760 dealt with continuation in office after the expirationof the term for which the officerwas elected. The hold-over provision,which has been construed by the courts as mandatory, also continuesan officer in the office, followinghis resignation,until his successorhas qualified. Jones v. City of Jefferson, 66 Tex. 576, 1 S.W. 903 (1886);Keen v. Featherston, 69 S.W. 983 (Civ.App.1902, error ref.); Plains Common Consol. School Dist. No. 1 **V.** Hayhurst, 122 S.W.2d 322 (Civ.App.1938).

Although the hold-over provision is said to be mandatory, an officermay divesthimself of an office before his successorhas qualified,by himself qualifying for and enteringupon the duties of another officewhich he cannot lawfullyhold at the same time. State ex rel. Peden v. Valentine, 198 S.W. 1006 (Civ.App.1917, error ref.); Pruitt
**V.** Glen Rose IndependentSchool Dist. No. 1, 126 Tex. 45, 84 S.W.2d 1004 (1935).

lUnder the present facts, Representative Spears' membership in the Senate will commence simultaneouslywith cessation of his membership in the House, if he qualifies for the Senate before his successor qualifies for the House, and in those circumstances therewould have been no cessation of his membership in the Legislature. However, this subdivision obviouslymust be construed to mean cessation of membership In the branch of the Legislaturefrom which the member was appointed to the interim committee.Honorable P. Frank Lake, page 4 (~~-1228)

A person elected to an office qualifiesby taking the oath of office and giving bond, if one is requiredby law. 34 Tex.Jur., Public Officers, Sec. 24, and cases cited. No bond is required of a member of the Legislature,but he must take the oath prescribed by Article XVI, Section 1, of the Texas Constitution before enteringupon the duties of his office. Representative Spears'membership in the House will cease when he takes the oath as Senator or when his successor in the House has qualifiedby taking the oath,whichever event occurs first.
SUMMARY Where a State Representativeresigns to run for an unexpired term in the State Senate and is elected to that office,his membership in the House of Representativescontinuesuntil he takes the oath as Senator or until his successor in the House of Representatives takes the oath for that office, whichever event occurs first. Tex. Const.,Art. XVI, Sec. 17.
Yours very truly,
WILL WILSON Attorney General of Texas

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APPROVED:
OPINION COMMITTEE W. V. Geppert, Chairman
J. C. Davis, Jr. Howard Mays Marietta Payne Marvin Thomas BP?fj$??jfgr-a=

.Wall Assistant

REVIEWED FOR THE ATTORNEY GENERAL By: Houghton Brownlee