Untitled Texas Attorney General Opinion

Honorable Glen Aaron, Jr. Opinion No. M-659 County Attorney Tom Green County Re: Legal status of county San Angelo, Texas attorney and of that office following submis- sion of letter of resigna- tion, acceptance by Commissioner's Court, and Dear Mr. Aaron: withdrawal of resignation. You have requested the opinion of this office regarding the legal status of the office of County Attorney of Tom Green County and the status of your relationship with that office. You have advised us that on May 15, 1970, you submitted to the Commissioner's Court your resignation from the office of County Attorney, to be effective June 1.5,1970, that on May 15th the Commissioner's Court accepted your resignation, and that on June 1, 1970, you submitted to the Commissioner's Court a with- drawal of your resignation. You have further advised us that, "At all times to date I have acted in the official capacity of County Attorney of Tom Green County." We have been advised that no other person was appointed to and qualified for the office of County Attorney of Tom Green County between the time you submitted your resignation and the time you withdrew such resignation. Under the facts presented, it appears that the officer attempted to withdraw his uncon- dltional resignation after its unconditional acceptance by the Commlssionerfs Court, and prior to the date it was to take effect. Although we are not so advised, we assume that there has been no withdrawal by the Commissioner's Court of its acceptance, neither prior to the date such resignation was to take effect nor at any subsequent time. Under the facts and circumstances, the resignation of office was complete and the officer's attempt to withdraw his resignation was futile. Since the effective date of such resignation and acceptance, such officer must serve, and in fact has been serving, as a "hold-over" under the authority of -3152- . Honorable Glen Aaron, Jr., page 2 (M- 659) Article XVI, Section 17, Constitution of Texas, which status con- tinues until a successor is duly qualified to fill the vacancy created. El Paso and S.W.R. Co. v. Ankenbauer, 175 S.W. 1090, 1092 (Tex.Civ.App. 1 15 f * Jones v. City of Jefferson, 66 Tex. 576, 1 S.W. ~O~'(%~~~.'" ')' Article 13.12a, Subsection (l), Texas Election Code, pro- vides that: "Where the incumbent of an office has submitted a resignation to become effective at a future date, the vacancy shall be deemed to occur upon acceptance of the resignation." In addition, the general rule is stated in 43 American Jurisprudence 25, Public Officers, Section 170: II . . . And it has been held that a public officer who has freely tendered an absolute and unconditional resignation to take effect in the future may not withdraw the resignation after it has been duly accepted by the proper authority, even though the time at which it is to take effect has not arrived." In accord, Board of Education v. Rose, 285 Ky. 217, 147 S.W.2d 83 (lgbl), 132 A L R 969 Rogers v. Carleton, 188 Okla. 470, 110 P.2d go8 (19&i); &ti.$ R C L* Murray v. State, 115 Tenn. 303 89 S.W. 101 (1908), 5 Amm: ia;. b87 Anno: lb L.R.A. (NS) 1056; L.R.A. 1917 F 547; 36 Am.St.Rep. 52:. We find no Texas case authorities to the contrary, but on the other hand the Texas cases hold that a public officer is not entitled to withdraw his resignation after the acceptance by the proper authority. 47 Tex.J&.2d 75, Public Officers, Set; 50; Amarillo v. Medknhal 276 S.W.2d 868 (Tex.Civ.App. 1955, error ref., n.r.e.); Sadler v Jester, 46 F.Supp. 7 7 (N.D. Tex., 1942); Sawyer v. City of San Antonio, 149 Tex. 40 2 , 234 S.W.2d 398 (1950). A t common law, the resignation is complete when acce ted by the proper authori- ties. See.State v. Stickley, 805 C. 84, 61 S.E. 211~,213 (1908). The Commissioner's Court thus could validly accept the resignation without simultaneously appointing a successor and having him qualify. However, until the successor is appointed or elected and qualifies, the officer in question is still under a mandatory duty to continue to serve in the vacant office as a "hold-over" by reason of Article XVI, Section 17, Constitution of Texas. Plains Common Consol. School Dist. No. 1 v. Hayhurst, -3153- . . Honorable Glen Aaron, Page 3 (M- 659) 122 S.W.2d 322 (Tex.Civ.App. 1938, no writ F&eatherson, 69 S.W. 983 (Tex.Civ.App. 1902, error ref. SWR C? v. Ankenbauer, supra; Attorney General Opinion No. V-76O*(i&)~ In the case of Jones v. City of Jefferson, 66 Tex. 576, 1 S.W. 903 (1886), supra, the Supreme Court of Texas interpreted Article XVI, Section 17, Constitution of Texas, as requiring the resigning officer whose resignation has been acce~pted,to con- tinue In office as a hold-over officer subject only to the suc- cessor's qualificat,ion,at which time his status as such officer ceased. In the course of the opinion, the Court said: "It is held by the Supreme Court of the United States, following the decision of the Supreme Court of Illinois in the same case, that under the statute of that state, which, like that of Texas, declares that all officers shall hold over until their successors are elected and qualified, an officer, whose reslg- nation has been tendered to the proper authority and accepted, continues in office and is not released from Its duties and responsibilities until his successor is appointed or chosen, and qualified. Badger v. U.S., 93 U.S. 599 [23 L.Ed. 9911.” Consequently, while there has been a legal resignation unqualifiedly accepted, the resignation of the officer is not deemed 'fully effective," so far as he is concerned, until the appointment and qualification of a successor. It does not follow, however, that the officer may withdraw his resignation because of his "hold-over" status after it has been acted upon and accepted by the proper authorities. Nor does it follow that a "vacancy" has not thereby been created subject to being filled by the proper authorities. SUMMARY Where a County Attorney submitted his absolute and unconditional resignation to take effect in the future, he may not withdraw it after it has been duly accepted by the Commissioner's Court, even though the time at which it was to take effect has not arrived. Until a successor has been appointed and qualified, the County Attorney has a continuing -.3154-- _ . , , Honorable Glen Aaron, page 4 (M-659) duty to serve in the vacant office as a hold- over under the requirement of Article XVI, Section 17; Constitution of Prepared by R. L..Lattimore Assistant Attorney General APPROVED: 'OPINION COMMITTEE Kerns Taylor, Chairman W. E. Allen, Co-Chairman John Reeves Gordon Cass Roland Allen Ronnie Carr Meade F. Griffin Staff Legal Assistant Alfred Walker Executive Assistant Nola White First Assistant -3155-