dissenting.
The dissenting opinion of June 26, 1992, is withdrawn and the following is substituted.
While finding no fault with the traditional legal analysis employed by the majority, *159there are rare instances where common sense and fundamental philosophical principles of constitutional self-government require the judiciary to steer a corrective course around mistakes in the law. This, I submit, is one of those cases. Were we absolute slaves to stare decisis, for example, Plessy v. Ferguson, 168 U.S. 587, 16 S.Ct. 1138, 41 L.Ed. 256 (1896) would still be the law and our society would still suffer the hypocrisy of racial segregation notwithstanding lofty words such as “equal protection” and “certain inalienable rights_” To those inalienable rights articulated by Mr. Jefferson, I would humbly add the right of the majority of the people to elect the representative of their choice. The evolution of western democracies, from the Magna Carta to the present, has embraced the concept of including more people, not fewer, in the process of participatory democracy. The result reached in this case today, based on the erroneous and overly technical reasoning and application of Lee v. Daniels and Dawkins v. Meyer,1 runs counter to the tide of western political history,2 effectively emasculates the right of the people of district 26 to elect the senator of their choice and excludes hundreds of citizens from being eligible to serve as elected representatives. I would follow the language of the Texas Supreme Court in Spears v. Davis; for these reasons and those stated below, I respectfully dissent.
It is appropriate to observe what this case is not: a partisan political dispute. In an interesting “strange bedfellows” twist, the Republican Party is allied with the Democratic nominee in seeking to keep Republican Wentworth off the ballot. On the other hand, the State Democratic Party, as an intervenor, has agreed with at least some of Mr. Wentworth’s arguments. To the extent that Dawkins v. Meyer is even applicable and therefore problematical for Republican Wentworth, the Dawkins majority consisted of four Republicans and one Democrat; four other Democratic justices dissented with opinions which would keep Mr. Wentworth on the ballot. Democratic legislative leaders Gib Lewis and Kent Caperton have filed affidavits in support of Republican Wentworth’s legal argument. Finally, this case affects not only these parties but also hundreds of appointees of the present Democratic governor.
In addition to the factual background set out in the majority, I would emphasize the term of the legislative office Wentworth seeks will commence on January 12, 1993. Thus, an overlap of 19 days out of the 2192 days of the regent’s term of office is alleged to create ineligibility. Wentworth resigned his position as regent on May 10, 1988 to take office as a state representative.3 The resignation from the regent position was almost five years before the senate term which Wentworth now seeks.
Wentworth raises three arguments: he is not constitutionally ineligible to stand as a candidate for state senator, the public record on which Meyer bases his discretionary decision does not conclusively show that Wentworth is ineligible as required by law, and Meyer has no power to declare him ineligible because the legislature has already ruled that he is qualified. I find merit in the first two contentions, and will address only those arguments in this opinion.
Spears v. Davis, 398 S.W.2d 921 (Tex.1966), is cited to us for the principle that both the purpose of the constitutional provision and the intention of the legislature in passing any laws that might affect eligibility for office should be looked to in order to determine a candidate’s eligibility to seek and hold office. In other words, there should be deference to the spirit of the law and not only blind obedience to its letter. Spears has never been overruled and the affidavits of Speaker Lewis and Senator *160Caperton give guidance as to legislative intent.
The principle that the constitution should be interpreted to effectuate its purpose is central to the Spears court’s interpretation of section 18 and should guide any reasoned interpretation of section 19. The Spears court quoted the Utah supreme court:
[W]henever there is even a remote possibility that the evil [the constitutional provision] was designed to prevent might exist, it should be applied in such manner as to accomplish its objective. However, when adequate safeguards in that respect are observed, there appears to be no good reason to carry this provision beyond that purpose and make an unreasoning application of it where no such evil, nor any possibility of it exists. This would work injustice by depriving citizens of their basic rights and would also tend to disrupt the orderly processes of democratic government.
398 S.W.2d at 929, quoting, Shields v. Toronto, 16 Utah 2d 61, 395 P.2d 829 (1964) (emphasis added).
Section 19 is one of the several constitutional provisions prohibiting dual office-holding. Tex.Const. art. XVI, §§ 12, 33, 40. See 1 George D. Braden, The Constitution op the State op Texas: An Annotated and Comparative Analysis 135 (1977) and 2 Braden 731-32. Section 19’s historical antecedents date to a 1701 act of Parliament prohibiting persons having an office, place of profit, or pension from the king from serving as members of the House of Commons. Tex.Const. art. Ill, § 19, interpretive commentary. See also Dawkins, 825 S.W.2d at 448. The federal constitution contains a similar prohibition, which prevents any person holding office under the United States from being a member of either house of congress, but only “during his continuance in office.” U.S. Const, art. I, § 6, cl. 2.
The Republican voters of district 26 have chosen Wentworth as their nominee for the state senate. He resigned his office as regent four years ago. His successor in that office has been confirmed and is now serving. There is absolutely no possibility that the dual officeholding evil section 19 was designed to prevent will be realized in this case. Section 19’s prohibition of dual officeholding is not in any way jeopardized by a candidate who resigns his office several years before running for the legislature. In such a situation there is no possibility of deceiving the voters; there is no question of which office the candidate intends to hold. There also could be no misuse or neglect of the appointive office during the campaign or the possibility of undue influence by the executive on the legislative branch where the appointee has resigned several years before and a replacement has been appointed, confirmed, and is serving.
It might be argued that the purpose of section 19 is to encourage all appointive officeholders to serve their full terms. The realization of that goal will provide continuity in governmental boards and agencies, but that goal is not advanced by the holding in Lee. Appointive office is not involuntary servitude. There is no law that prohibits an officeholder from resigning his or her post. One’s intention to serve a full term is best explored by the governor and the senate in the nomination and confirmation processes, and not an inducement that should be creatively read into the constitution where there is no evidence the people intended such an interpretation.
Further, there are many reasons one might resign a political office. Setting aside personal reasons, one might resign to accept another appointive post. Or to run for county office, or municipal office, or for governor, or attorney general, or any other statewide office. Or to run for Congress, or President of the United States. Indeed, one can resign to run for any office except the Texas Legislature. Thus, if the justification for the Lee gloss on section 19 is that an appointive officeholder may devote more time to a legislative campaign than the duties of his current office, there is no explanation why section 19 does not prohibit an officeholder from seeking all other political offices. And of course, even this justification evaporates when an appointive *161officeholder resigns several years prior to beginning a campaign. At that point his “term” is at an end.4
I am at a loss to see how the prohibition against seeking only one political office would ensure that appointees would serve out their terms, or keep them devoted to their duties, or would further any other possible purpose behind the enactment of section 19. Is it in the State’s interest to ensure that officeholders who no longer are motivated to hold their office serve out their terms? I think not.
To illustrate the absurdity of this proposition, let us assume that Jones is appointed and confirmed as regent for a six-year term beginning on February 1, 1993. Jones, after serving one day as regent, feels compelled due to a wholly personal reason to resign his office. His successor shortly thereafter is confirmed and begins to serve. Jones is still barred, however, under the strict interpretation of Lee, from serving in the legislature until 2001. And not only that, his successor is likewise barred, even if he resigned the day after his own confirmation. On the other hand, Jones, even without resigning, is not prohibited by section 19 from launching a campaign the day he takes office for city council or President of the United States.
Thus it can plainly be seen that the desire that appointed officeholders serve out their terms is not furthered by the interpretation that resignation will not revive one’s eligibility for legislative office. The Lee gloss on section 19 is nothing more than an impermissible means of protecting legislative seats from outside competition. See Clements v. Fashing, 457 U.S. 957, 979, 102 S.Ct. 2836, 2852, 73 L.Ed.2d 508 (1982) (Brennan, J., dissenting). It reduces the pool of possible legislators by eliminating, at least temporarily, hundreds of qualified, public-spirited, citizens. I do not believe the people or their elected representatives intended such an illogical result or application of section 19, nor intended for incumbent legislators to be protected by a different set of rules.
Nor would the doctrine of separation of powers be in jeopardy. This is cited in Dawkins as a further purpose of section 19. 825 S.W.2d at 448. Any appointive officeholder is admittedly free to run for the legislature in the election immediately following the expiration of his term of office. It would strain credulity to argue that the 19-day overlap created by the enactment of Senate Bill 194 (the “midnight appointment” law) guarantees the elimination of any undue influence by the executive upon the legislative branch. The result is especially ludicrous when no overlap at all would have existed, and had not existed, but for the enactment of Senate Bill 194, which admittedly had a different purpose altogether. Interestingly, the State Democratic Executive Committee, which we permitted to intervene in this proceeding, joins Wentworth in this argument.
The law is clear that any constitutional or statutory provision restricting the right to hold public office must be strictly construed in favor of eligibility. Dawkins, 825 S.W.2d at 448. Spears, which has never been overruled, teaches us that any legislative enactment affecting eligibility for office must be examined for legislative intent. The affidavits of Speaker Lewis and Senator Caperton make it clear that the legislature had no intention, and did not even consider, denying eligibility to the legislature to a whole class of appointive officeholders. Because the overlap created by Senate Bill 194 in no way subverts any possible purpose of section 19, and because it was not intended by the legislature to deprive Wentworth and other appointive officeholders of an opportunity to seek legislative office, it should be inapplicable in cases, such as this one, where the candidate has resigned his office several years *162prior to applying for a place on the ballot. To hold that the people cannot vote for Wentworth to serve them as their state senator because the term of the office to which he was appointed overlaps his senate term by 19 days, notwithstanding his resignation from the appointive office four years ago, is an absurd and ridiculous result with no foundation in logic, in legislative intent, or constitutional purpose.
Wentworth also contends that Meyer has abused his discretion because Wentworth’s ineligibility is not conclusively established in the public record. The Election Code provides that a candidate may be declared ineligible if the ineligibility is established by the information on his or her application for a place on the ballot, or if “facts indicating that the candidate is ineligible are conclusively established by another public record.” Tex.Elec.Code Ann. § 145.003 (Vernon 1986) (emphasis added).
Wentworth has brought forward several exhibits chronicling his appointment and confirmation as regent, his resignation, the nomination of George William Worth as his successor, the senate’s rejection of Worth’s nomination a year later, and the nomination and confirmation of Clyde Waddell, Jr. to the board of regents.5
Wentworth places particular emphasis on the report of the senate committee on nominations confirming Waddell as “filling [the] unexpired term of Mr. George Worth.” From this he argues that because the senate record shows that it was Worth’s rather than Wentworth’s unexpired term that was being filled, Wentworth’s ineligibility was not “conclusively established” by the public record. I agree.
As Justice Steakley pointed out in Lee, 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?
Lee, 377 S.W.2d at 621 (Steakley, J., dissenting). (emphasis added). Justice Steak-ley distinguished the type of prospective resignation involved in Kirk, where the district attorney submitted a resignation to become effective before the general election, and the irrevocable resignation by the respondent in Lee.
[I]n 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.
Id., at 622 (Steakley, J., dissenting). Thus, a reasonable argument can be made that section 19 has no application in this case and, therefore, the public record on which Meyer based his decision is not conclusive. Further, if the public record were conclusive, the Republican Party should have declared Wentworth ineligible in 1988 and 1990 when he ran for state representative, or at least when he sought to file for the senate, rather then lay behind the log and ambush Wentworth and the voters after the campaign, the primary, and the run-off. This was not done, I suggest, because the public record is not conclusive and Meyer should be estopped from keeping the people from voting for Wentworth at this late date.
I respectfully urge the supreme court to reconsider Lee v. Daniels, 377 S.W.2d 618 (Tex.1964), which held that the office seeker is ineligible during the original term, even if he has resigned. In Dawkins v. Meyer, 825 S.W.2d 444, 446 n. 3 (Tex.1992), the court said in footnote three that the effect of Dawkins’ resignation was not argued and was therefore not before the court; the court could easily have cited Lee instead of sidestepping the resignation issue. Incredibly, under Lee, a former federal judge would be forever ineligible for the *163legislature because his lifetime appointment, long since abandoned, was the term for which he was appointed.
Lee does not serve any valid interests in this case. Clearly, a former regent who resigned his term four years before filing for the present office does not threaten executive influence over the legislature, which seems to be a principal purpose of the constitutional provision. See Dawkins v. Meyer, 825 S.W.2d at 449. Perhaps one might defend article III, § 19 by arguing that a holder of a lucrative office has greater power than ordinary office seekers and should not be allowed to run for the legislature during his term. In addition, one might defend § 19 on the ground that those presently holding lucrative office would be distracted from their duties if they could seek legislative office during their terms. But those policy justifications for § 19 do not apply when, as here, the office seeker resigned the lucrative, of fice long before filing for the legislature.
When Wentworth resigned four years ago and his successor was nominated and confirmed, Wentworth’s “term” was at an end. At the very least it must be said that the public record is unclear on this point, and not conclusive as required by the Election Code. Meyer abused his discretion under section 145.003(f) of the Election Code by removing Wentworth’s name from the ballot. For this reason also, mandamus should issue.
Accordingly, I would grant the writ.
. An analysis can be made that the arguments and issues raised in Lee and Dawkins differ from those presently before us and, therefore, Lee and Dawkins are not necessarily binding.
. Were they to know of the result in this case, philosophers such as Locke, Montesquieu, Rousseau and Mill would wonder why we have taken this step backward.
.Interestingly, the Republican Party did not challenge Wentworth’s eligibility to run for state representative in 1988 or in 1990, although the same issue could have been raised.
. It is also clear that the people have abandoned any interest in short term overlaps which would result in ineligibility by amending art. Ill, § 18 to provide that such short term overlaps is de minimis.
While it is true that § 19 was not similarly amended, I fail to see how there can be one set of favorable rules for incumbent legislators under § 18 and other less favorable rules for everyone else under § 19 without violating basic concepts of fairness and equal protection.
. As a further illustration of the absurdity of position taken by Meyer, in the present case it is not only Wentworth who is barred from the legislature, but also Waddell and presumably Worth, who was not confirmed, but who served as an interim appointee for a year.