OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

AUSTIN 

iionorable ki. L. Washburn 

county Auditor 

Barris county 

Houston, Texas 

the queetion w 

ment by the Cr 

iiajor in the 

in the offio 

which would 

s department upon 

temporary appointHarris County, as 

as oauscd a raoancy 

ney ot that oounty, 

riminal Distrlot Attorney 

Major in the &my of the 

Doter as that which was inl.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 Criminal Distriot Attorney 

office by acoepting and qualifying for 

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 applicable part of which reads as tollovsr 
182 

Honorable Ii. L. Washburn - page 2 

. 

"9eot10n 1. Uhen there shall occur a 

physical vacancy in a public office In tM.s 

State, by reason of death or otherwise, the 

duties uud pourers of such office &all immediately devolve upon the first assistant or 

chief deputy if there be one, who shall conduct the affairs of the office until the taoancy in the term thereof shall be filled by 

the appointment or election and qualification of a successor to the principal officer) 

should any such vacancy occur while the Legislature is in session (where the appointee 

must be confirmed by the Senate) such first 

assistant or 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 provisions hereof shall not apply to vacancies in the membership of boards 

or comdssions ,* 

This Act has no application whatsoever to the 

situation herein Involved. Its purpose Is to provide for 

the continuing operution of a public office la this State 

in the Interim betreen the occurrence of a physical vacancy 

in such offioe~an&“the time when an appointment can be made 

to fill such vacancy, and the appointee duly qualify. The 

term *physical vaczncyw Is used to d.istiz&.@sh between a 

vacancy in office and c vacancy in the term. 

aA distinction may be drawn between a 

vacancy in office and a vacancy in the term. 

hy a vacancy in an office is usually meant 

that the office is empty and that it Is 

uithout an incumbent who has a right to exercise Its functions md 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 Senate Bill 145 was 

Intended to apply to the situation where a public offlIs simply absent or falls to attend to the duties of 

office. The term *physical vacancy*, in our opinion, was 
183 

~E&mdrable H. L, Jachburn - page 3 

used adrlsedly to refer to the situation where the ofMce 

is without an incumbent ei+,her de lure or de facto. 

It la rell establlsbed that 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 decision above 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