Honorable Glen Aaron, Jr. 

County Attorney 

Tom Green County 

San Angelo, Texas 

Opinion No. M-659 

Re: Legal status of county 

attorney and of that 

office following submission of letter of resignation, acceptance by 

Commissioner's Court, and 

Dear Mr. Aaron: withdrawal of resignation. 

You have requested the opinion of this office regarding 

the legal status of the office of County Attorney of Tom Green 

County and the status of your relationship with 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 effective June 1.5, 1970, that on May 15th the 

Commissioner's Court accepted your resignation, and that on 

June 1, 1970, you submitted to the Commissioner's Court a withdrawal of your resignation. You have further advised us that, 

"At all times to date I have acted in the official capacity of 

County Attorney of Tom Green County." 

We have been advised that no other person was appointed 

to and qualified for the office of County Attorney of Tom Green 

County between the time you submitted your resignation and the 

time you withdrew such resignation. Under the facts presented, 

it appears that the officer attempted to withdraw his uncondltional resignation after its unconditional acceptance by the 

Commlssionerfs Court, and prior to the date it was to take effect. 

Although we are not so advised, we assume that there has been 

no withdrawal by the Commissioner's Court of its acceptance, 

neither prior to the date such resignation was to take effect 

nor at any subsequent time. 

Under the facts and circumstances, the resignation of 

office was complete and the officer's attempt to withdraw his 

resignation was futile. Since the effective date of such 

resignation and acceptance, such officer must serve, and in 

fact has been serving, as a "hold-over" under the authority of 

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Honorable Glen Aaron, Jr., page 2 (M- 659) 

Article XVI, Section 17, Constitution of Texas, which status continues until 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: 

"Where the incumbent of an office has 

submitted a resignation to become effective 

at a future date, the vacancy shall be 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 

officer who has freely tendered an absolute 

and unconditional resignation to take effect 

in the future may 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), 132 A 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), 5 Amm: ia;. b87 

L.R.A. 1917 F 547; 36 Am.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 resignation after the acceptance by 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). A t common law, 

the resignation is complete when acce 

ties. See.State v. Stickley, 805 C. 8 

ted by the proper authori4, 61 S.E. 211~, 213 (1908) . 

The Commissioner's Court thus could validly accept the 

resignation without simultaneously appointing a successor and 

having him qualify. However, until the successor is appointed 

or elected and qualifies, the officer in question is still under 

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 Glen Aaron, 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 resignation has 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 

shall hold over until their successors are 

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 [23 L.Ed. 

9911.” 

Consequently, while there has been a legal resignation 

unqualifiedly accepted, the resignation of the officer is not 

deemed 'fully effective," so far as he is concerned, until the 

appointment and qualification of a successor. It does not follow, 

however, that the officer may withdraw his resignation because 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 filled by the proper 

authorities. 

SUMMARY 

Where a County Attorney submitted his 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 successor has been appointed 

and qualified, the County Attorney has a continuing 

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, , 

Honorable Glen Aaron, 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: 

'OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

John Reeves 

Gordon Cass 

Roland Allen 

Ronnie Carr 

Meade F. Griffin 

Staff Legal Assistant 

Alfred Walker 

Executive Assistant 

Nola White 

First Assistant 

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