WILL WILSON 

ATTOIRNEY GENER*L 

L%.USTXN 11. %-E?LAS 

December 19, 1961 

Honorable P. Frank Lake 

Secretary of State 

Austin, Texas 

Opinion No. w-1228 

Re: Date on which a State Representative ceases to be a 

member of the House of 

Representatives,under the 

Dear Mr. Lake: stated facts. 

Your request for an opinion of this office 

follows: 

reads as 

'The Honorable 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 Representative from 

the Sixty-Eighth Representative District, Place No. 

2, comprising Bexar County, Texas. The circumstances 

are that Representative Spears resigned effective 

December 15, 1961 and such resignation was accepted 

by the Governor. The unofficial returns indicate 

that Mr. Spears was elected to the Texas Senate at 

the Special Election held 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 certificates of election issued as 

provided by law. 

"It would appear under the provisions of Section 17 of Article XVI of the Texas Constitution 

that a member of the Legislature 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 

Opinion No. v-760 seems to substantiate this 

position. 

'The urgency of an answer to this question is 

that Representative Spears is the Chairman of a 

Special House Committee which meets on Thursday, 

December 21, and the Speaker of the House desires 
Honorable P. Frank Lake, page 2 (~~-1228) 

to know if Representative Spears will be duly 

authorized to continue acting in his capacity 

as chairman of such Committee until his successor has qualified for the office or until 

Mr. Spears has qualified as a member of the 

Senate. 

"I extend my respects and appreciation for 

your early consideration of this matter." 

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 committees of 

the Legislature is governed by Article 5&29e of Vernon's Texas 

Civil Statutes, as amended by Section 9 of the Legislative 

Reorganization Act of 1961 (Chapter 303, Acts of the 57th 

Legislature, Regular Session, 1961, codified as Article 5429f 

of Vernon's Texas Civil Statutes). Article 5429e now reads: 

"Section 1. That the membership of any duly 

appointed Senator or Representative on the Legislative Budget Board or on the Legislative Council, 

or on any other Interim Committee,shall, on the 

following contingencies, terminate, and the vacancy 

created thereby shall be immediately filled by 

appointment for the unexpired term in the same 

manner as other appointments to the Legislative 

Budget Board, the Legislative Council, or the 

other Interim Committee, as the case may be, are 

made: 

"(a) Resignation of such membership; 

"(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 submitted a resignation of his membership on the 

interim committee. This subdivision, therefore, does not apply 

to the fact situation before us. It remains to determine when 

his membership on the committee terminates by virtue of his 
Honorable P. Frank Lake, page 3 (~~-1228) 

cessation of membership in the Legislature--in other 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 "all officers of this State shall continue to 

perform the duties of thzir offices until their successors 

shall be duly qualified. 

(19491, 

Attorney General's Opinion v-760 

referred to in your opinion request, held that this 

constitutional provision 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 office with all the powers incident thereto until 

his successor has duly qualified. 

Opinion V-760 dealt with continuation in office 

after the expiration of the term for which the officer was 

elected. The hold-over provision, which has been construed 

by the courts as mandatory, also continues an officer in the 

office, following his resignation, until his successor has 

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 officer may divest himself of an office before 

his successor has qualified, by himself qualifying for and 

entering upon the duties of another office which he cannot 

lawfully hold at the same time. State ex rel. Peden v. 

Valentine, 198 S.W. 1006 (Civ.App. 1917, error ref.); Pruitt 

V. Glen Rose Independent School Dist. No. 1, 126 Tex. 45, 

84 S.W.2d 1004 (1935). 

lUnder the present facts, Representative Spears' 

membership in the Senate will commence simultaneously with 

cessation of his membership in the House, if he qualifies 

for the Senate before his successor qualifies for the House, 

and in those circumstances there would have been no cessation 

of his membership in the Legislature. However, this subdivision obviously must be construed to mean cessation of 

membership In the branch of the Legislature from which the 

member was appointed to the interim committee. 
Honorable P. Frank Lake, page 4 (~~-1228) 

A person elected to an office qualifies by taking the 

oath of office and giving bond, if one is required by 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 entering upon 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 qualified by taking the oath, whichever event occurs first. 

SUMMARY 

Where a State Representative resigns to run 

for an unexpired term in the State Senate and is 

elected to that office, his membership in the House 

of Representatives continues until 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 

MKW:ljb 

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