October 18. 1948



### Hon.Beauford H. Jester Governor of Texas Capitol Building Austin, Texas Opinion No. V-703 Inre: Eligibility of Legislator to

be appointed to district judgeship after expiration of legislative term. Dear Governor Jester:

Your request for an opinion reads: YAcitizen was duly elected to and served in the 50th Legislature, 1947. During that term the emoluments of the 1OlstDistrict Court (and other **courts)** were increased. (Acts, 50th Legislature, Chapter 42, Page 54).

“It appears thatthere will be avacancy in the office of Judge, 1OlstDistrict Court, on and after January 1, 1949.

“Assuming thathe is not elected to the 5lst Legislature, would such citizen be eligible to be appointed to fill such vacancy in the office of Judge of the 1OlstDistrict Court?’

The Governor, with confirmation by the Senate, has the power to fill avacancy in the office of district judge. Art. V, Sec. 28; Art. IV, Sec. 12, of the Texas Constitution; Opinion No. o-1092. Section 18of Article IIIprovides that:

“No senator or representative shall, during the term for which he may be elected,Hon. Beauford H. Jester, Page 2 (V-703)

be eligible to any civil office of profit under this State
. . . the emolument ofwhich may have been increased during such term . . .” (Emphasis added.)

The 50th Legislature (1947)l increased the pay of district judges to $6000. That office theretofore had carried an emolument of $5000.2 In counties of certain sizes, district judges receive supplemental compensation for additional judicial andadministrative duties. That additional compensation is not here involved. Insuch **counties** tbe base pay was $5000 per year. That base paywas’ raised to $6000 by the Legislature in 1947.

Sothe members ofthe 50th Legislature (1947). wouldbe ineligible to hold a district judgeship, during the term for which they **were** elected to the Legislature, because the emoluments of suchjudicial office were increased by that Legislature. Art. III, Sec. 18.But Section 18ofArticle IIIacts as aprohibition only during the legislative term for which such person was elected. Itsays that: ’

“No Senator or Representative shall during the term for which hewas elected, be eligible
. . .”

After that two-year term has expired, andanew representative from that district has been duly elected andhas qualified, the former legislator is **no** longer prohibited by Section 18of Article IIIfrom accepting anappointment as district judge. The acceptance of the new~bffice would not take place -dury ing theterm for’whkh he was elected” to the Legislature.

Assuming thatthe citizen in question is in all other respects qualified, he may be appointed to such office. Your question is answered in tbe affirmative. ’ Ch. 42. p; 54, S.B. 11. 2 Acts 45th Leg. (1937). Ch. 10, p. 11.Hon. Beauford H. Jester, Page 3 (V-703)

SUh4h4ARY After the two-year legislative term of a citiien has fully expired anda successor has been elected andqualified, such legislator is eligible to be appointed to the office of district judge even thoughthe emoluments of thatjudicial office were increased during the term of the former legislator. Section 18ofArticle III makes legislators ineligible for such appointments only “during the term for which they were elected.” Yours very truly, ATTORNEYGENEIULOF TEXAS

BY

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Joe R. Greenhill Executive Assistant JRG:erc APPROVED:

T ASSISTANT ORNEY GENERAL