This is an original petition for writ of mandamus by relator Thomas J. Lee to compel John A. Daniels as Chairman of the Bexar County Executive Committee and the Bexar County Executive Committee to omit the name of respondent Sam Jorrie from the official ballot as a candidate for the Democratic nomination for State Representative for the 68th District, Place 3.
Relator is a duly qualified candidate for said office. .Respondent Sam Jorrie was duly elected to the office of County Commissioner, Precinct 3, of Bexar County, Texas, for a term which does not expire *619until December 31, 1964. However, Sam Jorrie resigned from such position, effective February 1, 1964, and said resignation was accepted by the Commissioners Court and the County Judge appointed his successor on said date of February 1, 1964, which successor immediately qualified and entered into the duties of County Commissioner.
Article III, Section 19, Constitution of Texas, Vernon’s Ann.St., provides:
“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.”
Article III, Section 4, Constitution of Texas, provides:
“The members of the House of Representatives shall be chosen by the qualified electors, and their term of office shall be two years from the day of their election.”
Articles 1.05 and 1.06 of the Texas Election Code, V.A.T.S. provide, in effect, that no ineligible person shall have his name placed on the ballot at any primary, general or special election.
This case is very similar to the case of Kirk v. Gordon, Tex., 376 S.W.2d 560 (1964), recently decided by this court. In that case, as here, the term of the prior ■office did not expire until December 31, 1964, whereas the term of State Representative begins on the day of election in November. In that case, the office seeker made a resignation effective on November 1, 1964. However, this court held that because the term of District Attorney expired after the beginning of the term of State Representative, the District Attorney was not eligible and could not have his name placed on the primary ballot. We hold that Kirk v. Gordon controls the instant case and that respondent Jorrie is ineligible to the Leg' islature and should not have his name placed on the primary ballot.
Respondent Jorrie argues that this case is not controlled by Kirk v. Gordon by making the distinction that he, Jorrie, is not presently holding a lucrative office under this State, having resigned effective February 1, 1964. Respondent’s argument is that emphasis should be placed on the fact of tenure of office, or the actual holding of the office under the State; that once the holder of an office resigns from said office, he no longer is “holding a lucrative office under * * * this State” within the prohibition of Article III, Section 19, Constitution of Texas. To be ineligible, one must be (a} holding a lucrative office, (b) during his. elective or appointive term, (c) the duration of which overlaps the term of a legislative office to which he aspires, it is argued-
We reject the above argument of respondent Jorrie and hold that resignation at whatever time will not suffice to make-eligible to the Legislature any person who> has qualified for an elective or appointive term to a lucrative office under the State, the term of which does not expire until after the term of the legislator begins. As we said in Kirk v. Gordon:
“ * * * It is the fact that the term of office of district attorney to which he was elected conflicts with the term of office of members of the House of Representatives which controls.” Tex., 376 S.W.2d 562.
Since it is the term which controls, it makes no material difference whether the holder of the office resigns the day after he actually begins holding that office, the day of filing for the office of legislator, or the day before the election at which time the term of office of members of the Legislature begins.
When any person first qualifies for and begins holding a lucrative office under this State, the provision of the Constitution *620.in. question applies and that person is made .ineligible to the Legislature during the entire term of the office he then holds. When Jorrie was elected County Commissioner of Bexar County and qualified to and began holding such office, Article III, Section 19, Constitution of Texas, be'came applicable to him and said to him, ■“you are not eligible to the Legislature during the term of office of County Commissioner to which you have been elected.” 'Nothing Jorrie did after that time can affect his eligibility. He was already ineligible to the Legislature and the subsequent act of resignation at any point of time cannot thereby make him eligible once more. We construe the constitutional provision as allowing no exceptions as to in- ' eligibility once it has been established.
If the construction sought by respondents ..were adopted by this court, the language “during the term for which he is elected or .appointed” would add nothing to the provision and would be mere surplusage. Without that language, respondents’ contentions would be correct. As a matter of fact, the provision dealing with eligibility to the Legislature in every Constitution ‘¡.from the Republic of Texas to the Constitution of 1869 did not contain the above language. Article III, Section 30, of the Constitution of 1869 read as follows:
“No judge of any court of law or "equity, Secretary of State, Attorney . General, clerk of any court of record, sheriff or collector, or any person hold- ' ing a lucrative office under the United States, or this State, or any foreign government, shall be eligible to the Legislature; * *
We cannot say that the framers of the 1876 Constitution of Texas did not intend the language “during the term for which he is ’ elected or appointed” to add anything to what was otherwise clearly provided in the Constitution of 1869 and prior constitutions.
• • We find the general rule in other juris- • dictions to be that under provisions similar to the above quoted provision from the 1869 Constitution that an officer may resign prior to his election or appointment to another office and be eligible. However, in those jurisdictions having statutes or constitutional provisions similar to the provision now contained in our Constitution the courts invariably hold that the ineligibility created by such provisions exists during the entire period for which the person is elected or appointed, and is not affected by resignation from the first office. Rowe v. Tuck, 149 Ga. 88, 99 S.E. 303, 5 A.L.R. 113. See also State ex rel. Childs v. Sutton, 63 Minn. 147, 65 N.W. 262, 30 L.R.A. 630, and Baskin v. State of Oklahoma, 107 Okl. 272, 232 P. 388, 40 A.L.R. 941.
Writ of mandamus will issue to John A. Daniels as County Chairman of the Bexar County Democratic Executive Committee and the Bexar County Democratic Executive Committee directing each of them to omit the name of Sam Jorrie from the primary ballot' as a candidate for State Representative, 68th District, Place 3.
No motion for rehearing will be entertained.
CULVER and STEAKLEY, JJ., dissenting. NORVELL, J., not sitting.