Honorable Louis Dugas, Jr.

County Attorney Orange County Courthouse Orange, Texas 77630 Opinion No. M-748
Re: Questions relating to resignation of County Commissioner and filling Dear Mr. Dugas: the vacancy.

Inyour recent letter to this office you state that one of the county commissioners whose current term of office expires onDecember 31, 1970, was re-elected at the general election onNovember 3, 1970, for the four-year term of that office which begins onJanuary 1, 1971. You further state that subsequent to the general election the county commissioner has submitted his resignation to the county judge to become effective on January 5, 1971, and the county judge is prepared to makean appointment to the office of county commissioner pursuant to Article 2341, Vernon's Civil Statutes, but somequestion has arisen as to whether Article 2341 is in conflict with Section 18 of Article V, Texas Constitution. Ouropinion is requested upon the following questions:

1. Whether Article 2341 is unconstitutional. Andin the event that Article 2341 is unconstitutional:~

2. Towhommust the commissioner address his resignation andwhomust accept it?
3. Whowould call aspecial election as is provided in Article 4.09, Texas Election Code? Section 18of Article Vof the Texas Constitution provides in part as follows:

,I

. . . . Each county shall in like manner be divided into four commissioners precincts in each of which there shall be elected by the qualified voters thereof one County Commissioner, whoshall hold his office for four years anduntil his successor shall be elected andqualified. 1,

. . . -3643-Hon. Louis Dugas, Jr., page 2 (M-748)

Article 2341, Vernon’s Civil Statutes, reads:

“In case of vacancy in the office of commissioner, the county judge shall appoint some suitable person living in the precinct where the vacancy occurs, to serve as commissioner for such precinct until the next general election.” After careful consideration, weare unable to perceive wherein Article 2341 is in conflict with our Constitution. Although it is true that the Constitution has madespecific provision for the filling of vacancies in manyof the offices created bythe Constitution, (e.g., §§20, 21, 23, 28of Article V), it has not been so provided in other instances. Twoexamples of the latter category, in addition to that presented byyour request, are in the case of the offices of district attorney, created by Section 21of Article V, andassessor andcollector of taxes, created by Sections 14and 16of Article VIII. In those two instances, just as in that under consideration, the Legislature has provided for the filling of vacancies byappointment. Art. 328, Art. 2355, Vernon’s Civil Statutes.

Wedonot consider the fact that the Constitution makes noprovision for the filling of vacancies in the offices created by that document to operate as adenial of power to the Legislature to provide for filling thembyappointment. Theonly instances where the power of the Legislature in this area has been denied is where it has attempted to provide that vacancies be filled in amanner contrary to that specified bythe Constitution, as in State v. Valentine, 198 S.W. 1006 (Tex.Civ.App. 1917, error ref.). Just as the court in Anderson v. Parsley, 37S.W.2d 358 (Tex.Civ.App. 1931, error ref.) found that it was well within the power of the Legislature to fix the beginning date of the terms of office andspecify the date upon which newly elected officers could qualify, where the Constitution did not fix such dates wehold that it is within the power of the Legislature to provide for the filling of vacancies in offices by appointment where the Constitution has not provided amethod for doing so. You are therefore advised that Article 2341 is constitutional andestablishes the process for filling vacancies in the office of county commissioner until the next general election. [In this connection see Attorney General’s Opinion b1-742 (1970)].

Although your second andthird questions are predicated upon afinding that Article 2341 is unconstitutional, which we have not done, nonetheless, in the interest of clarity, weare constrained to comment upon the matters raised by those questions.

-3644-., .

Hon. Louis Dugas, Jr., page 3 (M-748)

While noissue regarding the constitutionality of Article 2341 wasraised in the case, it washeld in Tobin v. Valerio, 309S.W.Zd 479 (Tex.Civ.App. 1958, error ref.) fhenty judge wasthe proper officer to receive andaccept the resignation of acounty commissioner, but the resignation did not become effective until accepted by the county judge. This is in accord with Sawyer v. City of SanAntonio, 149Tex. 408, 234 S.W.Zd 398 (1950), holding that the resignation of a public officer is not complete until accepted bythe proper authority. Onceaccepted by the proper authority it is effective immediately even though it is tendered to take effect in the future. Attorney General’s Opinion M-659 (1970) and cases there cited.

Article 4.09, Texas Election to vacancies in offices that are to be It makes noattempt to specify whether by appointment or election, but merely the procedures for calling and holding Code, has noapplication filled by appointment. avacancy shall be filled undertakes to establish anelection otherwise required by law. Attorney General’s Opinion WW-550(1959). SUMMARY Article 2341, Vernon’s Civil Statutes, providing for the filling of vacancies in the office of county commissioner by appointment of the county judge is constitutional. Thecounty judge is the proper authority to accept the resignation of acounty commissioner. Theresignation becomes effective immediately upon acceptance even though it was tendered to take effect at afuture date. Article 4.09, Texas Election Code, does not authorize the calling of aspecial election to fill the office of county commissioner. -7 Very,truly you_rs,

Prepared byW.0. Shultz Assistant Attorney General

-3645-Hon. Louis Dugas, Jr., page 4 (M-748)

Kerns Taylor, Chairman W.E. Allen, Co-Chairman William J. Craig Jim Swearingen Roland Allen Dyer Moore, Jr. MEADEF. GRIFFIN Staff Legal Assistant ALFREDWALKER Executive Assistant NOLAWHITE First Assistant

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