Article XVI, Section 17 of the Texas Constitution

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As amended November 7, 2017:

(a) Except as provided by Subsection (b) of this section, all officers of this State shall continue to perform the duties of their offices until their successors shall be duly qualified.

(b) Following the expiration of a term of an appointive office that is filled by appointment of the Governor with the advice and consent of the Senate and that is not an office for which the officer receives a salary, the period for which the officer shall continue to perform the duties of office under Subsection (a) of this section ends on the last day of the first regular session of the Legislature that begins after the expiration of the term.

Editor Comments

This section, which is self-executing, has been amended once.

The Texas Attorney General, in Tex. Att'y Gen. Op. CM-627 (1970) (citations omitted), opined that: "This provision, which has been construed by the courts as mandatory, continues an officer in office following his resignation until his successor has qualified. However, an officer may divest himself of an office before his successor has qualified by himself qualifying for and entering upon the duties of another office which he cannot lawfully hold at the same time."

In addition, the Texas Attorney General, in Tex. Att'y Gen. Op. KP-7 (2015), later opined that: "Article III, section 52(a) of the Texas Constitution prohibits the gratuitous payment of public funds for a private purpose. The determination of whether a public expenditure to a justice of the peace who refuses to perform his duties as a holdover officer upon his resignation is gratuitous belongs to the commissioners court in the first instance, subject to judicial review."

—Attorney Steve Smith

Recent Decisions

None.

Historic Decisions

  • Ex parte Sanders, 215 S.W.2d 325, 326 (Tex. 1948) ("Relator insists that Judge Davis' appointive tenure of the office expired on and with Nov. 2, general election day, because . . . . Under Art. V, Sec. 28, supra, Judge Davis became an 'officer within this state' by appointment of the Governor upon the death of Judge Terrell, therefore under Art. XVI, Sec. 17, he continues in office until his successor 'shall be duly qualified'; and relator cannot qualify before January 1, 1949, because he has no mandate by election or otherwise to do so. Only by thus construing these two sections of our Constitution together can the orderly process of government be preserved. So that is the construction we give them.")
  • State ex rel. Bickford v. Cocke, 54 Tex. 482, 485 (1881) ("Under what circumstances an incumbent, who is entitled to hold office until his successor is elected or appointed and qualified, can lawfully hold over, has frequently been the subject of judicial investigation, and has given occasion . . . . The primary object of this provision, that the incumbent is entitled to hold the office until his successor is elected or qualified, is simply to prevent, on grounds of public necessity, a vacancy in fact in office until the newly elected or appointed officer can have a reasonable time within which to qualify. The right of the officer who thus holds over is by sufferance, rather than from any intrinsic title to the office.")

Library Resources

Online Resources

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