Untitled Texas Attorney General Opinion

AUUTIN. - rl9711 April 12, 1974 The Honorable Bill Neal Opinion No. H- 278 District Attorney Wilbarger County Courthouse Re: Whether a co.unty judge may P. 0. Box 1484 be a candidate for election to Vernon, Texas 76384 the State Senate. Dear Mr. Neal: You have requested our opinion on the question: “Is Texas County Judge whose present term as County Judge expires December 31, 1974 and who is otherwise qualified, eligible to become a candidate for the Texas Senate in the upcoming regular election to be held on November 5, 1974?” Section 19 of Article 3 of the Constitution of Texas is: “No judge of any court, Secretary of State, Attorney General, clerk of any court of record, or any person holding a lucrative office under the United States, or this State, or any foreign government shall during the term for which he is elected or appointed, be eligible to the Legislature. ” Here, the word “eligible” refers to the time when the duties of the office are to be assumed rather than to the time when the election for the office is held. Kothman v. Daniels, 397 S. W. 2d 940 (Tex. Civ. App. 1965, no writ). Prior to 1966, Sections 3 and 4 of Article 3 of the Constitution provided that Senators and Representatives,. respectively, took office immediately following their election and, on this basis, it was held that a district attorney, a county commissioner, and a city councilman, whose terms extended past p. 1297 . - The Honorable Bill Neal page 2 (H-278) the general election were ineligible to be elected to the Legislature. Kirk v. Gordon, 376 S. W. 2d 560 (Tex. 1964); Lee v. Daniels, 377 S. W. 2d 618 (Tex. 1964); Willis v. Potts, 377 S. W. td 622 (Tex. 1964). In November 1966, Sections 3 and 4 of Article 3 were amended so that each contains the provision that the senator or representative “shall take office following their election, on the day set by law for the convening of the Regular Session of the Legislature. . .” The day set by law for the convening of the Legislature in Regular Session is the second Tuesday in January. (Article 3, Sec. 5, Texae. Constitution; Article 5422, V. T. C. S. ). We are of the opinion, therefore, that a county judge, whose term of office will expire December 31, 1974, is not made ineligible by Article 3, Sec. 19, Texas Constitution, to run for election as state senator for a term to commence the secondTuesday in January, 1975. Because the unexpired term of the Judge is less than one year, Article 16, Sec. 65 of, the Constitution does not apply. SUMMARY A county judge whose unexpired term is less than one year and will expire prior to the convening ~of the regular session of the Legislature is not made ineligible to become a candidate for the State Senate by Article 3, Sec. 18, or Article 16, Sec. 65 of the Texas Constitution. Very truly yours, JOHN L. HILL Attorney General of Texas p. 1298 L _ - The Honorable Bill Neal page 3 (H-278) David M. Kendall, Chairman Opinion Committee p. 1299