(dissenting).
Section 19 of Article III and Section 12 of Article XVI of the Constitution of Texas read, respectively, as follows:
“Sec. 19. 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.”
“Sec. 12. No member of Congress, nor person holding or exercising any *621-office of profit or trust, under the United States, or either of them, or under any foreign power, shall be eligible as a member of the Legislature, or hold or exercise any office of profit or trust under this State.”
The question in the case is whether a ■presently effective and accomplished resignation from a disqualifying office will remove ineligibility to the Legislature which would otherwise exist under, the above ■provisions. It quite clearly does so under Section 12 of Article XVI. I would resolve the question under Section 19 of Article III in favor of eligibility and in a •manner which would harmonize the two sections. The provisions of Section 12 of Article XVI would thus not be rendered inoperative in part and we would not be .attributing to the framers of the Constitution an intent to propose contemporaneous irreconcilable provisions.
Both sections contain provisions pertaining to eligibility to the Legislature. Section 19 limits its declaration of ineligibility to the term for which a person is elected or appointed and does not literally apply, for example, to one holding over beyond his term. Section 12 is broader and pronounces an office holder ineligible to the Legislature at all time he is holding a disqualifying office. The respondent Jorrie is clearly eligible to the Legislature under Section 12 since he is not holding a disqualifying office; the majority opinion, however, holds him ineligible under Section 19 on the proposition that the ineligibility declared by this section exists for the whole time of a term, notwithstanding a complete vacation and nonholding of the disqualifying office.
The literalness of interpretation given the phrase “during the term for which he is •elected or appointed” in Section 19, as the mainstay of the primary holding of the -majority opinion, renders doubtful the ■corollary holding that the provisions of Section 19 apply only if and after a person • qualifies for an office to which he is elected or appointed. If the section is read literally, ineligibility rests on the fact alone of election or appointment to a disqualifying office and for the time of the term. Nevertheless, recognition of the concept and necessity of “holding” an office is implicit in the majority view that the provisions of Section 19 apply only after qualification for — and hence the holding of — the disqualifying office and not merely, as Section 19 says, “during the term” of election or appointment.
It is my view that Section 19 merely carries the presupposition that a person will assume and occupy an office for the term to which he has been elected or appointed, and that the phrase “during the term for which he is elected or appointed” negates any basis for the contention that a person once a judge, or a Secretary of State, or an Attorney General, or a clerk of any court of record, or the holder of a lucrative office under the United States, or this State, or any foreign government, remains ineligible to the Legislature after the completion of the term for which he is elected or appointed.
Moreover, I am unable to see how ineligibility pertaining to offices in the general class to which Section 19 applies, i. e., holders of lucrative offices, can exist in the absence of an actual holding of the office. The sine qua non of ineligibility pertaining to this class is the holding of the office. If a person is not holding a lucrative office at the time in question, how can Section 19 apply? This is quite apart from the question of whether this is also true of the offices specifically named in Section 19, i. e., judge of any court, Secretary of State, Attorney General, and clerk of any court of record. The majority opinion necessarily equates the offices specifically named and those in the general class, and by so doing regards the phrase “holding a lucrative office” as merely descriptive of the general class. But I am unable to see how the general class can exist at all except and unless there is a holding of a lucrative office.
*622I must also note that the annotations and decisions of'courts from outside our State cited in the majority opinion do not involve state constitutions containing related provisions comparable to Section 19 of Article III and Section 12 of Article XVI of our Constitution.
Eligibility to hold an office which a person seeks by election should be, and is, a prerequisite to the right of a person to have his name placed upon the ballot at any election. Article 1.05, Vernon’s Annotated Texas Election Code; Purcell v. Lindsey, 158 Tex. 541, 314 S.W.2d 283. It is in the public interest that there be no doubt at the time of an election that a candidate on the ballot will be eligible to assume the office. The voting public should know that he will be so if he is their choice at the polls and the other candidates for the same office are entitled to protection against votes being drawn from them by a candidate who could be ineligible to assume the office. Prospective resignations, therefore should not suffice to remove the ineligibility declared by the constitutional provisions under review. A candidate tendering a future resignation can change his mind and withdraw the resignation if it has not been irrevocably accepted; the body to whom a resignation is submitted may change its mind about accepting it. Accordingly, I do not believe that the future resignation considered in the recent case of Kirk v. Gordon, Texas Supreme Court Journal, Vol. 7, p. 303, was sufficient to remove ineligibility. But in the case at bar the respondent resigned from his office as County Commissioner prior to his application for a place on the official ballot as a candidate for the Legislature; his resignation was forthwith accepted by the Commissioners Court and his successor immediately qualified and assumed the duties of the office. I would hold that respondent thereby became eligible to the Legislature and would deny the petition for writ of mandamus.
CULVER, J., joins in this dissent.