HonorableJohn OR.Shook
Criminal District Attorney
San Antonio, Texas
De& Sir: Opinion No. o-855
,
.Re: Whethe~r,Asaessorand Col-
lector can withdraw his
written re8ignationbefore
the same,ia,actedupon by
the Commisalonera~Court.
"Rowe
&e lnreoeipt offyour letter of..May19, 1939
whereln.y&outllne the following facts:
OnRay 12, 1939,,-Albert.V..Huthdellvered'tothe
Comml.ss~lonera*.Court
his written resignationa8 Tax.,Asses-
sor dnd.ColleatorofE3exar Cotity. 'Oti~Naay
13, 1939, he
delivered to thensame 'body'awrltten,wLthdrawalof such
resignation. In the .meanwhllethe CominlsslonerstCourt
.’
had takenno:aotlon upon his resignat;lon.You request
our opinionfin~responseto the,follow,tigtwo questions:
."What effect did the making of said reslg-
nation by'Mr. ~Huthand the filing same In Com-
miaeloners'Court have !upon.Mr.Huth's rights
to hold office as asseesor and ~collectorof
Rexar,.Countyl
"What effectsdid the attemptedwithdrawal
by,Mr. Ruth of said~retiignatlonhave upon:Mr.
Huth's rights as'assessor and collector of
Dexar County?!
You have also kindly furnishedus with a copy of
your opinion upon tblismatter whereti you expressed the view
that no action on the part of the Commiasloners'~Courtwas
necessary to give effect to Mr. Hu,th'sresignationand that
his attemptedrlthdrawal of the resignationhad no effect.
You base youropinion upon 34 Tex. Jur. p. 58$;:Byersvs.
Crisp, 2 Tex;~App. Civ..Cases., Sec. 707 and Chownlng vs.
Boger, 2 Tex:App. Clv. Cases,.Sec.742.
. -c
Hon. John R. Shook, May 24, 1939, Page 2
In the case of Byers vs. Crisp, supa, which you
mention, the question of a withdrawal of a resignationwas
not concerned. It was held in that case "that when an of-
ficer delivers his uncondltlonalresignationto the.proper
authoritiesto take effect at once, it is effectual with-
out acceptanceand the office is vacant." In the case of
Chowning vs. Boger, supra, the court mentloned its holding
in the Byers vs. Crisp case, but In the Chomlng case,
neither the effective date of a resignationnor the possi-
ble effect of a withdrawalof a resignationwas before the
court.
We take the followingquotation from Tooele-
County vs. Della Mare, 59 Pac. (26) 1155, by the Supreme
Court of Utah:
I .
"Accordingto some authorities the Fight to
relinquish an office la absolute and effective-
even though not ixcepted by the proper offioers.
State v. Fitts, 49 Ala. 402; People v. Porter, 6
Cal. 26; Meeker vi Reed, 70 Oal; bpp. 119, 232 P.
,760;Gates v. Delaware County, stipra;State v.
. Lincoln, 4 Reb. 260~;State v. Clarke',3.Nbv. 566.
The'great weight of authority, however, Is to the
effect that a resignationla not effective until1
Ft is accepted by the proper authorities.
Thompson v. United States, 103-U. s. 480, 26'~.
,Ed.521; Edwards v;'IJnited States, 103 u. S. 471,
26 L.,Ed. 314; Badger v. United Stateti~,93 U. S.
599, 23 L. Ed. 991; People v. Williams, 145 Ill.
573, 33.n'.E. 849, 24 L.R.A..492 36 Am.St.Rep.
514; State v. Buff, 172 Ind. 1,~67 N. E. 141,
139 Am.St.Bep. 355; State v. Council Qrove Board
of Education, 108 Kan. 101,'193 Pi 1074; Pa@&tDicg
v.~Haglna;41 3. W. 31, 19 Ky. Law Rep. 482;
Clark v. Detroit Board of Education, 112 Mlch.
656, 71 N.W. 177. FryeP'v. lioi%on,67 B.J.Law,
537, 538, 52 A. 476; Van Ors'dallv. Hazard, 3
Bill (N.Y.) 243; State v. ClevelandDist. Board
of Education, 23 ,OhioCir. ct. R. (B.S.) 98;
Commonwealthv. Hess, 2 Pa.Dlst. & Co.R. 530;
State v. Stickler, 80 S.C. 64, 61 s.E.~211, 128
Am.St.Rep. 855, 15 Ann. Cas. ,136;Stateiv. Bush,
141 Tenn. 229,,2O8 S.W. 607; Coleman v. Sands,
87 Va. 689, 13 9. E. 148; State v. Kitsap county
Superior Court, 46 Wash. 616, 91 P. 4, 12 L.R;A.
1010; 123 Am.St.Rep. 948, 13 Ann. Cas.
70; State v. JefferLs, 26~Wyo. 115, 178 P. 909.1
.
Ron. John R. Shook, May 24, 1939, Pa&e 3
Our courts have never followed the Byers case.
;E izeihoughtthat the court overlookedthe effect of Art.
. 17 of the Constitutionof Texas, which provides
t&t "all officers within this State shall continue to
perform the duties of their offices until their successors
shall be duly qualified."
We quote from the opinion of the Court of Civil
Appeals in the case of McGhee v. Dickey, 23 3. W. 404,
as follows:
"The contentionof appellant that this un-
oonditionaltender of resignation created a
vacancy in the office of county judge of Wil-
barger county Is supported by a decision of the
court of appeals, reported in 2 Wils. Civil
Cas. 8 3 707, 708, and by other authorities
aited in thatopinion. We have reached the
conclusion,however, that the weight both of
reason and authority Is with the holding that,
so far as the rights of third persons are aon-
oerned, a public office does not become vaaant
by an una'ccepted resignation,especially in
this state, where we have the following oon-
stitutionalprovision: 'All officers within
this state shall oontinue to perform the duties
of their offices until their sucaessors shall
be duly qnallfied.1 Const. Art. 16, % 17. In
this respect the state, It seems, like nature,
abhor3 a vacuum. The public necesaltg for oon-
tinoity of official tenure is not left to the
caprice of the office-holder."
In the cases of Keen vs.'Featherston,693.'~.
983 (error refused), Ei Paso and F.W.R. Co. v. Ankenbauer,
175 S. W. 1090, Ringllng vs. City of Hempstead, 193 Fed.
596, It was held that under the above constitutional:pro-
vision an officer'sresignation does not become effective
until the appointmentand qualificationof his successor.
In Budger vs. U. S., 93 u. 3. 599, 23 L. Ed.
991, under a oon3tltutionalprovision of Illinois almost
Identical with our own, the Supreme Court held that the
qualificationof a successor was neoesaary to the effective-
ness of a resignation.
Hon. JohnR. Shook, May 24, 1939, Page 4
In some states the law seems to be that an offl- ..
cer*s resignation takes effect immediatelyupon delivery. .,
In most lnatanoes we further find In those states that once
delivered,a resignationcannot be withdrawn. In the case
of State vs. Murphy, 97 Pac. 391, by the Supreme Court of
Wevada, it was recognized that an unconditionalreslgnatlon
could not be wlthdrawn due to the fact that the office be-
comes vacant immediatelyupon'tenderof rwlginationby the
incumbent. However, in that case it was held that since
the resignation was not outrlght and unconditional,tit
was to take effect on a designatedfuture day, the same
could be withdrawn before the time that It should take
effect. In the case of State vs. Fowler, 48 So. 985, the
Supreme Court of Alabama recognized the law to be In that
State that an unconditionalresignation of a public officer
to.take effeot Immediatelycould not be wlthdrawn. However,
the,resignationin.that oaae was not an unconditionalone
and we quote from the courtls opinion as follows:
#"Theresignation, In the case at bar, was
not nncondltlonal,as was the one inthe Fitts~.
Case, supra, but was to become'flnalandFu;zEve
only upon the acceptanceby the judge; .~.
ditional acceptance by the judge would have rendered
the resignationconclusiveand.effective;but,
tihilethe-accept,ancewas ~indorsedby the'judge
August 21, 1908, it was conditional,ln'thatlts
operationand )effectwas postponed until September
19, 1908. The'acceptancenotbecoming effective
until said lgth.of September, the respondent had
the rightto withdraw said resignation,which he
did on the 12th of September,,:Ig08..The resignation
was by Its terms to take effect only upon the ac-
ceptance by the judge, and, the judge having made
the acceptance effective upon a-future day, the
. ._ respondent had the right to tiithdraw,f3ald
resignation
before the arriva~lof the datefixed by the judge.,
The resignationdid not,take effect Immediately,
but was subject to the acceptanceof the judge,
and effectjlveonly uponthe time',designated:by him,,
and was withdrawn before the said ac~ceptance, by
its very terms, 'became.effective;" .
./,
We quote from,the .opimion.of~theSupreme Court of
South~Carolina in the case of State vs..Stickley,.61S. E.
211,~as follows:'
Hon. John R. Shook, May 24, 1939, Page 5
"The remaining questions presented by the
petition and return all depend upon lvhethera pub-
lic officer, who has tendered his resignation
unconditionally,can withdraw the same before ac-
ceptance; or what is the effect of an unconditional
resignation. On this question the authositiesare
not in accord. There is a line of cases main-
taining the propositionthat an unconditional
resignationtendered to the authority entitled to
receive it cannot be withdrawn. State v; Fitts,
49 Ala. 402; State v. Hauss, 43 Ind. 105, 13 Am.
Rep. 384; State ex rel. Kirtley v. Augustine, 113
MO. 21, 20 S. W. 651, 35 Am. St. Rep. 696; State
v. Clarke, 3 Nev. 566. On the other hand at com-
mond law and in a~great number of,the states the
doctrine prevails that the resignationof a public
officer is not complete until.it is either ex-
pressly or by implibationaccepted'bythe proper
authorities. State'v. Clayton, 27 ICan.442, 41
Am. Rep. 418; Coleman v. Snade; 87 va. 689;~13
S..E. 148; State v. FerguBon,'31 N. J. Law, 107;
Van Orsdall v. Hazard, 3 Hii1 (N,Y.) 243; Edward3
v. United States,,l.O3~U. S.'471, 26,L. Ed. 314;
Hake v. Henderson, 15 N. C. 1, 25 Am. Dec. 677;'
1 Dillon, Munic. Corp. (3d Ed.)-249. fn the case
of State v. Ancker,,2 Rich. Law, 245, this rule
was applied to.'theresignation.oEcertain'offi-
cers and members of a'ohurch, the court saying:
'The question is whether such a re&igri&tion~haa
been made and accepted according to law, and in a
way obligatoryon all the parties to this contro-
.versy. To make it so there must have been both a
resignationcum animo and an acceptanceof it on
the part of the acting and responsiblegovernment
,at the time.' In the absence 'ofstatute this rule
is supported by the better reasoning and the
greater weight of authorities,and has beetiadopted
by the Supreme Court of the Unit&I States. Edwards
v. United States, 103 U. S. 471, 26 L. Ed,.314.
Until the tender or offer to resign is accepted by
the proper authority, it can be withdr~awn."
We regard the law as being settled in this State
that an officer's resignation cannot take effect'untilhis
successor has been appointed and has qualified according.to
lay. We are not here concerned with certain exceptions to
-
Hon. John R. Shook, May 24, 1939, Page 6
that rule, such as were Involved in the cases of State vs.
Valentine, 198 S..W. 1007, and Lowe vs. State, 201 S.W. $36.
Under Article 16, Section 17, of our Constitution,the law
reads Into every resignationthe condition that It shall not
take effect until the resigning officer's successor has been
appointed and has duly qualified. Mr. Huth,was Tax Assessor
and Collec!toron May 13, .1939,at the time he delivered to
the Commissioners' Court his withdrawal of:the resignation
tendered on'the day before, the Commissioners' Court Chad
taken noiaction upon such tendered resignation., and we can
perceive no'reason why Its withdrawalshould not be given
effect. Our answer to your questions,,therefore, is that the
'withdrawalof the kesignation placed the situation in the
same attitude as If 'no.$es:,gnat$on had e.verbeen tendered to
the Commissioners1Court.
Yours very truly
ATPORIiEYGJ3Idl?RALOF.TgXAS
BY /a/ alenn R..Lewis
'QlennOR; Lewis
Aaalstant
GRL:N;~ay,
,APPRQVED'
/a/ Gerald C. Warm '
ATTORNEY GENERAL OF TE@s
,BY h?/ REK
Chairman