**OFFICE OF**  **THE ATTORNEY**  **GENERAL OF**  **TEXAS AUSTIN** 

iionorable

ki. L. Washburn county Auditor Barris county Houston, Texas

the queetionw ment by the Cr iiajor in the in the offio which would s departmentupon temporary appointHarris County, as as oauscd a raoancy ney ot that oounty,

riminalDistrlot Attorney Major in the &my of the Doter as that which was in**l.67 9.**  **1. (2)**  **147.** f the State of texa oiril offber ot an otl'ioer

in the

, aeotion 40, has not taoated hii 5inoe the CriminalDistriot **Attorney** officeby acoeptingand qualifyingfor the office of Galor in the Arzg oi the United States,he is, under existing laws, entitled to his salary.

IOU reier to 8enate Bill 145, passed by the 45th Legislature, the applicablepart of which reads as tollovsr

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Honorable Ii.

L. Washburn - **page** 2

. "9eot10n 1. Uhen there shall occur a

physicalvacancy in a public office In tM.s State,by reason of death or otherwise,the duties uud pourers of such office &all immediatelydevolve upon the first assistant**or** chief deputy if there be one, who shall conduct the affairs of the officeuntil the taoancy in the term thereof shallbe filledby the appointmentor electionand qualification of a successor to the principalofficer) should any such vacancy occurwhile the Legislature is in session (where the appointee must be confirmedby the Senate) such first assistantor chief deputy (as such) shall not discharge the duties of the office for a longer period than three (3) **weeks** and in no event after such session of the Legiulature has adjourncd. The provisionshereof shall not apply to vacancies in the membershipof boards or comdssions ,*

This Act has no application whatsoeverto the situationherein Involved. Its purpose Is to provide for the continuingoperution of **a** public office la this State in the Interimbetreen the occurrenceof a physicalvacancy in such offioe~an&“the time when an appointmentcan be made to fill such vacancy, and the appointeeduly qualify. The term *physicalvaczncyw Is used to d.istiz&.@sh between a vacancy in office and c vacancy in the term.

aA distinctionmay be drawn between a vacancy in office and a vacancy in the term. hy a vacancy in an office is usuallymeant that the office is empty and that it Is uithout an incumbent who has a right to exerciseIts functionsmd take its ices and emolume2t.s.*

-- 22 R.C.L. p.438. The term gphysical*or *corporal* vacancy is a term used to describe a Vacancy in office*, 22 A.C.L. p. 438; 42 Am*Jur. p.977.

not cer his It is clear, we think, that SenateBill 145 was Intendedto apply to the situation where a public offlIs simply absent or falls to attend to the duties of office. The term *physicalvacancy*,in our opinion,was

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~E&mdrable

H. L, **Jachburn -**  **page 3** 

used adrlsedly to refer to the situationwhere the ofMce is **without** an incumbent ei+,her de lure or de facto. It la rell establlsbedthat the mere absence of a public ofticer, or his failure to discharge the duties of his office, does not ipso facto create a vacancy, either In the oifice or in the texm.

Under the decisionabove crentime3,your Criminal District Attorney is still such $$g Jure, hence Senate Bill Uo. 146 does not apply.

very truly yours ATTOIUGZY

GEIWUL 03 TEXAS
Hy mR. 3-1 Fairchild Assistant