concurring.
For the reasons stated in my dissenting opinion in Dawkins v. Meyer, 825 S.W.2d 444, 451 (Tex.1992) (Gonzalez, J., dissenting), I concur in the judgment of the Court and in the decision to overrule Kirk v. Gordon, 376 S.W.2d 560 (Tex.1964) and Lee v. Daniels, 377 S.W.2d 618 (Tex.1964).1 As a matter of constitutional construction, equal protection and First Amendment rights, a person who resigned an appointed office over five years ago should be permitted to run for the legislature.
A restriction on the possible field of candidates infringes not only on the rights of the person seeking office, but also on the right of the people to select the candidate of their choice. For this reason the analysis must begin with the presumption “that constitutional provisions which restrict the right to hold public office should be strictly construed against ineligibility.” Brown v. Meyer, 787 S.W.2d 42, 45 (Tex.1990); see also Sears v. Bayoud, 786 S.W.2d 248, 251 (Tex.1990). Therefore, it follows that if a constitutional provision uncertain of meaning is susceptible of two reasonable interpretations, the least exclusionary must be utilized.
Article III, section 19 of the Texas Constitution provides that:
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.
Tex. Const. Art. III, § 16 (emphasis added). The Court ignored the presumption of eligibility in Lee, instead, holding that a resignation did not affect eligibility if there was any overlap between the term of the previous office and the seat in the legislature sought by the officeholder. Justice Steak-ley, joined by Justice Culver, disagreed:
*770It 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 the phrase “during the term for which he is elected or appoint- . ed” 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 office 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 office. If a person is not holding a lucrative office at the time in question, how can Section 19 apply?
377 S.W.2d at 621. How indeed can section 19 apply to one who not only has not held that office for four years, but has served in the legislature during the interim?
The constitutional history cited by Chief Justice Phillips in his dissent does little to illuminate original intent. The fact that the phrase “during the term for which he is elected or appointed” was not always there, but was added at some point, does not make ineligibility a more probable interpretation than the eligibility interpretation of Justice Steakley.2
As I expressed in Dawkins, I have concerns that the restriction on running for office represented by Lee is fraught with constitutional problems. 825 S.W.2d at 452. The United States Supreme Court analyzed article III, section 19 in Clements v. Fashing, 457 U.S. 957, 102 S.Ct. 2836, 73 L.Ed.2d 508 (1982). In Clements, several justices of the peace who wished to run for the legislature challenged article III, section 19 on First Amendment and equal protection grounds. A plurality of the court held that section 19 survived the minimal scrutiny of the “rational relationship” test, and therefore did not violate the United States Constitution. 457 U.S. at 971, 102 S.Ct. at 2848. The Court carefully limited its opinion to the facts before it, to judges holding office while seeking a seat in the legislature, and expressly stated that its analysis would not necessarily vindicate article III, section 19 as applied to other offices. The Court concluded that a provision which precludes a judge from holding office and deciding cases while at the same time seeking votes for the legislature was rationally related to the legitimate state interest in the integrity of the judiciary.
The Court identified the following as possible purposes of article III, section 19: 1) Texas’ interest in maintaining the integrity of the judiciary; 2) the likelihood that the demands of a political campaign would tempt a judge to devote less than was required by his or her current office; and 3) the need to discourage a judge from leaving office before the end of the term. 457 U.S. at 968, 102 S.Ct. at 2846. As applied to a member of a board of regents, I do not believe that section 19 bears a rational relationship to these purposes. The prohibition only applies to those running for the legislature. A current officeholder is free to resign and run for any other office in the state. Only an officeholder whose term happens to overlap with that of the legislature is prohibited from running. An officeholder whose term expires even one day before the legislature’s term begins may hold and exercise office while campaigning. See Chapa v. Whittle, 536 S.W.2d 681 (Tex.Civ.App.—Corpus Christi 1976, no writ).
Wentworth is a case in point. It is not his current position that would, under the dissent’s view, disqualify him, but the office he held prior to that. None of the legitimate state interests found by the United States Supreme Court are advanced one whit by disqualifying Wentworth.
*771I agree with Justice Brennan, as he stated in his dissent in Clements, that article III, section 19, as interpreted in Lee, advances only the interests of incumbent legislators, not any legitimate state interest. “The only conceivable state interest in barring these candidacies would be the purely impermissible one of protecting Texas legislative seats against outside competition.” Clements, 457 U.S. at 979, 102 S.Ct. at 2852. (Brennan, J., dissenting).
This constitutional analysis of the possible purposes of article III, section 19 brings us back to the original intent of the delegates to the convention for the Texas Constitution of 1876. We cannot ascribe to them such an impermissible intent. Moreover, in light of the populist mood of the convention, it is highly unlikely the delegates intended to make incumbent protection a constitutional guarantee. See Watts & Rockwell, The Original Intent of the Education Article of the Texas Constitution, 21 St. MaRy’s L.J. 771, 785-91 (1990) (discussing the role the Grange movement played in the convention, and its distrust of the governmental establishment, in particular, the legislature).
Today’s opinion should not, however, be viewed as license to hang onto one office while prospecting for another. A chairman may not certify an ineligible candidate for the primary ballot. Tex.Elec.Code §§ 172.-029, 172.057. A chairman may refuse to receive and reject the application to be placed on the primary ballot of one who is ineligible. See Hall v. Baum, 452 S.W.2d 699 (Tex.1970). One who has filed for an office without resigning a current office with an overlapping term risks disqualification which later resignation after the filing deadline would not cure.
Finally, I take issue with the majority on one facet of its opinion. It states that the Court “assume[s] ... John Hannah, as the Secretary of State, will act in accord with this opinion.” 839 S.W.2d at 769. Although not a party, Secretary Hannah has filed a response indicating that he has no interest in the merits of this dispute and that he is ready to cooperate with the Court in the performance of his duties. The Court’s statement is unnecessary and can be viewed by some as a criticism of Mr. Hannah’s performance of his duties. I would delete this statement from the opinion.
. I lament that this change of interpretation comes too late for Ms. Dawkins. At the oral argument of her case, counsel for Ms. Dawkins informed the court that she would have resigned her office on the board of MHMR before running for the legislature except for the precedent of Lee.
. Justice Steakley distinguished the case of Kirk v. Gordon, 376 S.W.2d 560 (Tex.1964), on the grounds that he did not believe a prospective resignation was sufficient to avoid the prohibition of article III, section 19. Lee, 377 S.W.2d at 622 (Steakley, J., dissenting).