<:1**wP"RD c. ,MARTIS 

Armrrs. TEXAS 78711 

Ax-rORNEY GF.NFz:RAI. 

January 13, 1971 

Honorable Robert S. Calvert Opinion No. M-772 

Comptroller of Public Accounts 

State of Texas Re: Construction of Section 33 

Austin, Texas 78711 of Article XVI, Constitution 

of Texas. 

Dear Mr. Calvert: 

Your request for an opinion on the above subject 

matter reads in part as follows: 

"The Comptroller of Public Accounts respectfully requests your official opinion in regard to the issuance and payment of warrants for 

salaries to State employees who have held other 

offices or positions of trust or profit under the 

State of Texas in circumstances made known to the 

Comptroller as described below. 

"YOUP opinion is requested whether the Comptroller may issue and pay warrants for the salaries 

of the individuals mentioned above following vacation by them of their offices as commissioners, 

councilmen and mayors of Texas cities. If your 

answer is in the affirmative, please advise as 

to each individual the effective date from which 

payment of salary may commence." 

You state in your request that the State employees in 

question held concurrently with their State employment the office 

of city mayor, city commissioner, or city councilman. Each has 

now resigned his position as city mayor, city commissioner, or 

city councilman, as the case may be, and such resignation has 

been duly accepted, and their successors in each occasion have 

now been duly appointed and have qualified for the office. 

On November 23, 1970, in Cause No. 181,374, in the 

53rd District Court of Travis County, Texas, it was determined 

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. 1 

Hon. Robert S. Calvert, page 2 (M-772) 

by judgment and decree of the Court that Section 33 of Article 

XVI of the Constitution of Texas, prohibits the Comptroller of 

Public Accounts from drawing a warrant in payment of salary 

or compensation of a person who is employed as a professor 

at Texas A&M University so long as that person holds the 

elective office of Mayor or City Councilman of the City of 

College Station, Texas. 

the courts of this State, 

Since that cause is still pending in 

we will not express an opinion concerning whether Section 33 of Article XVI is applicable to a 

State employee who concurrently holds the office of mayor, 

city commissioner or city councilman. However, in view of the 

fact that each employee involved in your request no longer 

holds the office of mayor, city commissioner or city councilman, 

we are permitted to answer your questions without deciding the 

question which is involved in the above referred to pending 

litigation. 

A public officer cannot arbitrarily divest himself 

of his office. 

1893, no writ). 

McGhee v, Dickey 23 S.W. 405 (Tex.Civ.App. 

The resignation'of a public officer does not 

become effective until it has been accepted by the proper authority. Sawyer v. City of San Antonio, 149 Tex. 408, 234 S.W.2d 

398 (1950; Tobin v. Valerio, 

error ref.). 

309 S.W.Zd 479 (Tex.Civ.App. 1958, 

Section 17 of Article XVI requires all public officers to occupy their office and perform the duties incident 

thereto until a successor has qualified. This provision 

operates to continue in office an officer who has not effectively resigned, Jones v, City of Jefferson, 66 Tex. 576, 

1 S.W. 903 (1886); as well as one whose resignation has been 

duly accepted but no successor qualified, El Paso and S.W.R. 

Co. v. Ankenbauer, 

Keen v, F 

175 S.W. 1090 (Tex.Civ.App. 19 

eatherston, 

15, error ref.); 

69 S.W. 983 (Tex*Civ.App. 1902, error ref.); 

Attorney General's Opinion M-659 (1970). 

In each of the instant cases described in your request, the State employee has resigned the office he held with 

the city, his resignation has been accepted, and his successor 

has qualified. YOU are accordingly advised the Comptroller may 

issue and pay warrants for the salaries of the individuals 

mentioned in your request on the date each of their successors 

qualified for the office with the city that such State employees 

previously held. 

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Hon. Robert S. Calvert, page 3 (M-772) 

SUMMARY 

Since the State employees in question have 

resigned city offices previously held by them and 

their successors to such offices have qualified, 

the Comptroller may issue and pay warrants for 

salaries of such State employees. 

/' 

Prepared by John Reeves 

Assistant Attorney Genera 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

Bill Craig 

Ben Harrison 

Jerry Roberts 

Jack Goodman 

Roger Tyler 

MEADE F. GRIFFIN 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLA WHITE 

First Assistant 

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