dissenting.
I respectfully dissent. Under our Constitution, this court has no authority to mandamus the Governor. Although the writ we conditionally grant today is nominally directed to the Secretary of State, the Governor is the only state official whose conduct is altered by our order. I believe our action today clearly exceeds our constitutional authority.
Under our laws, no resignation is complete until accepted by the proper authority. TEX.ELEC.CODE § 201.023 (1986). The proper authority to accept the resignation of a justice of a court of appeals is the Governor. TEX. CONST, art. 5, § 26; TEX.ELEC.CODE § 201.002 (1986). It is not clear, however, how much discretion the Governor retains either to reject or delay acceptance of a resignation. The court today resolves that question, perhaps correctly and perhaps not. The court’s clear error comes in using that resolution as a basis for conditionally granting relator’s requested relief.
By a provision added in the 1985 codification of the Election Code, the Legislature required that a resignation “must be accepted by” the appropriate authority. TEX.ELEC.CODE § 201.001(a) (1986). This provision might mean only that no resignation is complete until accepted. Such a construction is consistent with the chapter of the Code as a whole, which requires that the appropriate authority must act on the resignation, TEX.ELEC. CODE §§ 201.001(a), 201.002 (1986), and that no vacancy occurs until that resignation is accepted. TEX.ELEC.CODE § 201.023 (1986). It is also consistent with prior law, which clearly gave the appropriate authority broad discretion to reject or delay acceptance of a resignation. See Sawyer v. City of San Antonio, 149 Tex. 408, 413-14, 234 S.W.2d 398, 401-02 (1950).
On the other hand, the provision might mean, as the court holds today, that “[ojnce a resignation is written, signed and delivered to the appropriate authority, that authority has no discretion in the matter and is compelled to accept it.” While the current provision contains no express time requirement, the court’s interpretation that the authority may neither reject nor delay acceptance of the resignation is not unreasonable on its face.
The particular facts of this case, however, demonstrate the practical difficulties with the court’s interpretation. Justice Es-quivel, who was re-elected to the Fourth Court of Appeals in 1986, indicated by his letter of resignation an intention to resign effective January 1, 1989. Under TEX. REV.CIV.STAT. art. 17 (1969), that effective date may be impossible, for the law provides:
Persons elected to unexpired terms in the various state ... offices ... shall be entitled to qualify and assume the duties of their respective offices ... immediately following the official canvass of the results of the election at which they were elected, and they shall take office as soon thereafter as possible.
*309The individual selected at the November 8, 1988 general election will, therefore, be under a legal obligation to assume office before Justice Esquivel intended to depart. As relators conceded in oral argument, Justice Esquivel may be compelled to vacate his office before he intended, TEX.ELEC. CODE § 201.023 (1986), possibly at considerable personal hardship. In either event, the court’s ruling today deprives not only the Governor of the discretion to avoid this problem, but the incumbent office holder of the opportunity to withdraw his resignation before acceptance. _„
Nevertheless, it is not necessary to resolve the correct construction of section 201.001(a) in order to conclude that mandamus should not issue against the Secretary of State. Even if the Governor must accept a proper resignation, as the court holds, the law does not give the Secretary of State any authority to act when the Governor does not. Even under the court’s reading of the Election Code, it is still the Governor who must take action; the Secretary of State’s duties only arise thereafter. The act of accepting a resignation is not passive; in my opinion, it still requires “a formal declaration ‘or ... something tantamount to an acceptance, such as the appointment of a successor’”. Sawyer v. City of San Antonio, 108 Tex. at 413, 234 S.W.2d at 401 (quoting 43 Am.Jur. Public Officers § 167 (1942)).
The court today requires the Secretary of State to make an affirmative discovery that a resignation has been submitted, to accept that resignation, and to determine when that acceptance is effective. Those requirements are simply beyond the scope of his constitutional or statutory powers. See generally, TEX. CONST, art. 4, § 21; TEX.ELEC.CODE §§ 161.008, 202.002, 202.006 (1986).
The conclusion is inescapable that the Governor is the only officer of the state who might have conceivably violated a statutory duty. Since mandamus will not lie against the Governor, this court has no authority to act. In ordering mandamus to lie against the Secretary of State, this court exceeds its jurisdiction by ordering the action of the Governor indirectly when it does not have the jurisdiction to do so directly. TEX. CONST, art. 5, § 3; TEX. GOV’T CODE § 22.002(a) (1988); McFall v. State Board of Education, 101 Tex. 572, 573, 110 S.W. 739, 740 (1908).
CULVER, J., joins in this dissent.