Untitled Texas Attorney General Opinion ( 1970 )

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
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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 Cow. 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,
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. .
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
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, ,
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
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