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. 

In your recent letter to this office you state that one 

of the county commissioners whose current term of office expires 

on December 31, 1970, was re-elected at the general election 

on November 3, 1970, for the four-year term of that office which 

begins on January 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 make an 

appointment to the office of county commissioner pursuant to 

Article 2341, Vernon's Civil Statutes, but some question has 

arisen as to whether Article 2341 is in conflict with Section 18 

of Article V, Texas Constitution. Our opinion is requested upon 

the following questions: 

1. Whether Article 2341 is unconstitutional. 

And in the event that Article 2341 is unconstitutional:~ 

2. To whom must the commissioner address his 

resignation and who must accept it? 

3. Who would call a special election as is 

provided in Article 4.09, Texas Election Code? 

Section 18 of Article V of 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, 

who shall hold his office for four years and until his successor shall be elected and qualified. 1, 

. . . 

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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, we are unable to perceive 

wherein Article 2341 is in conflict with our Constitution. Although it is true that the Constitution has made specific provision for the filling of vacancies in many of the offices created 

by the Constitution, (e.g., §§20, 21, 23, 28 of Article V), it 

has not been so provided in other instances. Two examples of 

the latter category, in addition to that presented by your request, are in the case of the offices of district attorney, 

created by Section 21 of Article V, and assessor and collector 

of taxes, created by Sections 14 and 16 of Article VIII. In 

those two instances, just as in that under consideration, the 

Legislature has provided for the filling of vacancies by appointment. Art. 328, Art. 2355, Vernon’s Civil Statutes. 

We do not consider the fact that the Constitution 

makes no provision for the filling of vacancies in the offices 

created by that document to operate as a denial of power to the 

Legislature to provide for filling them by appointment. The only 

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 a manner contrary to that specified by the Constitution, as in State v. Valentine, 198 S.W. 1006 (Tex.Civ.App. 

1917, error ref.). Just as the court in Anderson v. Parsley, 

37 S.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 and specify the date upon which newly 

elected officers could qualify, where the Constitution did not 

fix such dates we hold 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 a method for 

doing so. You are therefore advised that Article 2341 is constitutional and establishes 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 and third questions are predicated 

upon a finding that Article 2341 is unconstitutional, which we 

have not done, nonetheless, in the interest of clarity, we are 

constrained to comment upon the matters raised by those questions. 

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., . 

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

While no issue regarding the constitutionality of 

Article 2341 was raised in the case, it was held in Tobin v. 

Valerio, 309 S.W.Zd 479 (Tex.Civ.App. 1958, error ref.) 

fhenty judge was the proper officer to receive and accept 

the resignation of a county commissioner, but the resignation 

did not become effective until accepted by the county judge. 

This is in accord with Sawyer v. City of San Antonio, 149 Tex. 

408, 234 S.W.Zd 398 (1950), holding that the resignation of a 

public officer is not complete until accepted by the proper 

authority. Once accepted 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 no attempt to specify whether 

by appointment or election, but merely 

the procedures for calling and holding 

Code, has no application 

filled by appointment. 

a vacancy shall be filled 

undertakes to establish 

an election 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. 

The county judge is the proper authority to 

accept the resignation of a county commissioner. 

The resignation becomes effective immediately 

upon acceptance even though it was tendered to 

take effect at a future date. Article 4.09, 

Texas Election Code, does not authorize the calling of a special election to fill the office of 

county commissioner. 

-7 

Very,truly you_rs, 

Prepared by W. 0. Shultz 

Assistant Attorney General 

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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. 

MEADE F. GRIFFIN 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLA WHITE 

First Assistant 

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