<:1**wP"RD c.,MARTIS Armrrs. TEXAS 78711

Ax-rORNEY GF.NFz:RAI. January13,1971

Honorable Robert S. Calvert Opinion No. M-772 Comptroller of Public Accounts State of Texas Re: Construction of Section 33 Austin, Texas 78711 ofArticle XVI, Constitution of Texas.
Dear Mr. Calvert:

Your request for an opinion on the above subject matter reads inpart as follows:

"The Comptroller of Public Accounts respectfully requests your official opinion in regard to the issuance andpayment ofwarrants for salaries to State employees who have held other offices orpositions of trust orprofit under the State of Texas in circumstances made known to the Comptroller asdescribed 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 andmayors of Texas cities. Ifyour answer is in the affirmative, please advise as to each individual the effective date fromwhich payment of salary may commence." You state inyour request that the State employees in question held concurrently with their State employment the office of citymayor, city commissioner, or city councilman. Each has now resigned his position as citymayor, city commissioner, or city councilman, as the casemay be, and such resignation has been duly accepted, and their successors ineach occasion have now been duly appointed and have qualified for the office.

OnNovember 23, 1970, inCause No. 181,374, in the 53rdDistrict Court of Travis County, Texas, itwas determined

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

by judgment and decree of the Court that Section 33 ofArticle XVI of the Constitution of Texas, prohibits the Comptroller of Public Accounts from drawing awarrant inpayment of salary or compensation of aperson who is employed as aprofessor at Texas A&M University so long as that person holds the elective office ofMayor or City Councilman of the City of College Station, Texas. the courts of this State,Since that cause is still pending in wewill not express an opinion concerning whether Section 33 ofArticle XVI isapplicable to a State employee who concurrently holds the office ofmayor, city commissioner or city councilman. However, inview of the fact that each employee involved inyour request no longer holds the office ofmayor, city commissioner or city councilman, we are permitted to answer your questions without deciding the question which is involved in the above referred topending litigation.

A public officer cannot arbitrarily divest himself ofhis office. 1893, nowrit). McGhee v, Dickey 23 S.W. 405 (Tex.Civ.App. The resignation'of apublic officer does not become effective until ithas been accepted by theproper authority. Sawyer v. City of SanAntonio, 149Tex. 408, 234 S.W.2d 398 (1950;Tobin v.Valerio, error ref.). 309 S.W.Zd 479 (Tex.Civ.App. 1958,

Section 17 ofArticle XVI requires allpublic 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 hasnot effectively resigned, Jones v, City of Jefferson, 66 Tex. 576, 1 S.W. 903 (1886); aswell as onewhose resignation has been duly accepted but no successor qualified, El Paso and S.W.R. Co.v.Ankenbauer, Keenv, 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).

Ineach of the instant cases described inyour request, the State employee has resigned the office heheld with the city, his resignation has been accepted, and his successor has qualified. YOU are accordingly advised the Comptroller may issue andpay warrants for the salaries of the individuals mentioned inyour 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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SUMMARY Since the State employees inquestion have resigned city offices previously held by them and their successors to such offices have qualified, the Comptroller may issue andpay 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 BenHarrison Jerry Roberts Jack Goodman Roger Tyler
MEADE F. GRIFFIN Staff Legal Assistant
ALFRED WALKER Executive Assistant
NOLA WHITE FirstAssistant

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