Honorable GlenAaron, Jr.

CountyAttorney Tom Green County SanAngelo, Texas Opinion No. M-659
Re: Legal status of county attorney and of that office following submission of letter of resignation, acceptance by Commissioner'sCourt, and Dear Mr. Aaron: withdrawal of resignation.

You have requested the opinion of this office regarding the legal status of the office of CountyAttorney of Tom Green County and the status of your relationshipwith 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 effectiveJune 1.5,1970, that on May 15th the Commissioner'sCourt accepted your resignation, and that on June 1, 1970, you submitted to the Commissioner'sCourt a withdrawal of your resignation. You have further advised us that, "Atall times to date I have acted in the official capacity of CountyAttorney of Tom Green County."
We have been advised that no other person was appointed to and qualified for the office of CountyAttorney of Tom Green Countybetween the time you submittedyour resignationand the time you withdrew such resignation. Under the facts presented, it appears that the officer attempted to withdraw his uncondltional resignationafter its unconditional acceptanceby the CommlssionerfsCourt, and prior to the date itwas to take effect. Although we are not so advised, we assume that there has been no withdrawal by the Commissioner'sCourt of its acceptance, neitherprior to the date such resignationwas to take effect nor at any subsequent time.

Under the facts and circumstances, the resignation of officewas complete and the officer's attempt to withdraw his resignationwas futile. Since the effective date of such resignationand acceptance, such officermust serve, and in fact has been serving, as a "hold-over"under the authority of

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HonorableGlenAaron, Jr., page 2 (M- 659)

Article XVI, Section 17, Constitution of Texas, which status continuesuntil 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 ~O~'(%~~~.'" f *Jones v. City of Jefferson,

')' 66 Tex. 576, 1 S.W. Article 13.12a, Subsection (l),Texas Election Code,provides that: "Wherethe incumbent of an officehas

submitteda resignation to become effective at a future date, the vacancy shallbe 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 officerwho has freely tendered an absolute and unconditional resignation to take effect in the futuremay 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),132A 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), 5Amm: ia;. b87 L.R.A. 1917 F 547; 36Am.St.Rep. 52:. Anno: lb L.R.A. (NS) 1056; 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 resignationafter the acceptanceby 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 2 (N.D.Tex., 1942); Sawyer v. City of San Antonio, 149 Tex. 40 , 234 S.W.2d 398 (1950). At common law, the resignation is completewhen acce ties. See.State v. Stickley, 805 C. 8ted by the proper authori4, 61 S.E. 211~,213 (1908)

. The Commissioner'sCourt thus could validly accept the resignationwithout simultaneouslyappointing a successorand having him qualify. However, until the successor is appointed or elected and qualifies, the officer in question is stillunder 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 GlenAaron, Page 3 (M-659)

122 S.W.2d 322 (Tex.Civ.App.1938, no writ 69 S.W. 983 (Tex.Civ.App.1902, error ref. F&eatherson, 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 resignationhas been acce~pted,to continue In office as a hold-over officer subject only to the successor'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 shallhold over until their successorsare elected and qualified, an officer,whose reslgnation 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 [23L.Ed. 

### 9911.” Consequently,while there has been a legal resignation unqualifiedly accepted, the resignation of the officer is not deemed 'fullyeffective," so far as he is concerned,until the appointment and qualification of a successor. It doesnot follow, however, that the officermay withdraw his resignationbecause 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 filledby the proper authorities.
SUMMARY

Where a CountyAttorney submittedhis 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 successorhas been appointed and qualified, the CountyAttorney has a continuing

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HonorableGlenAaron, page 4 (M-659)

duty to serve in the vacant office as a holdover under the requirement of Article XVI, Section 17; Constitution of

Prepared by R. L..Lattimore Assistant Attorney General
APPROVED: 'OPINIONCOMMITTEE
Kerns Taylor, Chairman W. E. Allen, Co-Chairman John Reeves Gordon Cass RolandAllen Ronnie Carr Meade F. Griffin Staff Legal Assistant Alfred Walker ExecutiveAssistant Nola White FirstAssistant

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