                            QPfficeof tip 1ZlttornepQBeneral
                                         Mate of IEexae
DAN MORALES
 ATT”RSEI’GENERAL                            July 29.1996

      The Honorable Ron Lewis                        Opiion No. DM-406
      Chair, County AiTairs Committee
      Texas House of Representatives                 Re: Whether an independent school district
      P.O. Box 2910                                  board member who resigns may withdraw
      Austin, Texas 78768-2910                       the resignation before his or her successor
                                                     qualifies for office (RQ-885)

      Dear Representative Lewis:

               On behalf of the Bridge City Independent School District, you ask whether a
      school board member who resigns may withdraw the resignation before his or her
      successor qurdifks for office. You have submitted a letter from the school district’s
      counsel that asks about the status of a school board member who “resigns but then returns
      to the Board before any new member is appointed to tilJ the vacancy.” The letter suggests
      that rhe act of returning prior to the appointment of a member to till the vacancy results
      in a situation as ifthe Board member had never resigned.” We diigree.

               Under common law, the resignation of a public 05cer is not elfective until it has
      been accepted by the person or entity having the authority to appoint a successor. Sadler
      v. Jetier, 46 F. Supp. 737 (N.D. Tar. 1942); Sawyer v. Ci@ of San Antonio, 234 S.W.2d
      398 (1950). We believe, however, that this rule has been modifkd with respect to elected
      officials in this state by sections 201.001(a) and 201.023 of the Election Code, the former
      of which provides in pertinent part as follows:

                      To be effective, a public officer’s resignation. . . must be in
                 writing and signed by the officer. . . and delivered to the appropriate
                 authority for acting on the resignation. . . . ?7re unrIrori@ may nor
                 refuse to accept a resQnation.

      Elec. Code 8 201.001(a) (emphasis added). Section 201.023 of the Election Code
      provides that “[i]f an officer submits a resignation, . . . a vacancy occurs on the date the
      resignation is accepted by the appropriate authority or on the eighth day after the date of
      its receipt by the authority, whichever is earlier.“t


             ‘FviorIo1989,tbclau-       ofscctim 201.001(a)pmvidd, “A wignatim mustbe rapted
      bythmanthorily.” AU ofMay 13, 1985.69thLeS.. RS., ch. 211, 0 1, 1985Tar Gee h    1005. In
      TexasDmowatic Erecuthe Gwnmttteev. Rains, 1% S.W.2d 306,307 Crcx. 1988), tk Texas Supreme
      ~concludcdthataadathispmvisionthacwcrro~thrrcdemcnrsfor~dfeEtivcrrrignation-
      %atitbcwri~sipai,8ndQLivaed...         oocearcsigoationiswlinal.slgnedand-tothe
       rppropriatesuthoaity,thatrndhorityhsrnoditactionintbcmattcrmdL~~u,~L”                 1d.m
The Honorable Ron Lewis - Page 2                    (DM-406)




        Section 201.002 of the Election Code states that “[ulnless otherwise provided by
law, the authority to act on a public officer’s resignation,      is the officer or body
authorized to make an appointment or order a special election to fill a vacancy in the
office.” The Education Code, section 11.060 establishes procedures for filling school
board vacancies. In the case of an independent school district, the school board is the
body authorized to make an appointment or order a special election to fill a vacancy in the
board. Educ. Code 5 11.060(a), (c),2

        Based on the foregoing provisions, we conclude that an independent school district
board member’s written, signed resignation that has been delivered to the school board is
effective upon its acceptance by the school board or on the eighth day after the date of its
receipt by the school board, whichever occurs earlier. The school board member may
withdraw the resignation before it becomes effective. The letter submitted with your
request suggests that a school board member may withdraw his or her resignation after it
has been become effective. This is not the case. It is well-established in this state that a
public officer may not withdraw a resignation once it has become effective. See, e.g.,
Sadler v. Jester, 46 F. Supp. at 740; Amarillo v. Mendenhall, 276 S.W.2d 868 (Tex. Civ.
App.--1955, error refd n.r.e.); Attorney General Opinions DM-248 (1993) at l-2 (once
resignation of police officer has become effective, resignation cannot be withdrawn);
M-659 (1970) at 2 (county attorney is not entitled to withdraw resignation once effective);
Letter Opinion No. 94-059 (1994). Of course, a public officer holds over until his or her
successor qualifies for office under article XVI, section 17 of the Texas Constitution.

        We note that a 1940 opinion of this office concluded, on the basis of the
constitutional holdover provision, that the resignation of a school board member does not
become effective until his or her successor has been appointed and that, as a result, a
school board member may tithdraw his or her resignation prior to that time. See
Attorney General Opinion O-1432 (1940). This is not the modern view, however. In


(footnotecontinued)
307. Underthis statute as interpretedby the court, a written, signed resignationwouldkcome cffcaive
upon delivery to the appropriate authority. The legislature amended the last sentence of section
201.001(a) to its pnwnt form in 1989. See Act of May 22, 1989, 71st Leg., RS., ch. 1187, 5 1, 1989
Tex. Gen. Laws 4833. It also amendedsection-201.023,adding “oron the eighth day afterthe date of its
xceipt by the authority,whichever is earlier.” Id. 5 2. A legislative bill analysis states that these
amendmentswere made in responseto the court’sholding in TexasDemocrolicEncufiw Commirfeev.
Rains, and suggeststhat the legislatureintended,at leas7in par&to createa periodbctwom dclivcryof a
tigaation and its aczeptana during which the resigning official would be able to withdraw the
tignation. See HouseResearchOrganization,Bill Analysis,S.B. 546. 71s~Leg., RS. (1989);see also
HouseComm.on Elections,Bill Analysis,S.B.546,71st Leg.,RS. (1989).

         %cancies on boardsof trusteesof independentschool districtsare filled by the boarduntil the
next trusteeelection. Educ.code 8 11.060(a).If a boardis appointedby the governingbodyof a munici-
pality, that governingbodyappointsa trusteeto servethe remainingunexpiredtam. Id. 5 11.060(b).In
addition,the appropriatebody has the option of orderinga specialelection. Id. 5 11.060(c).
The Honorable Ron Lewis - Page 3              (DM-406)




Attorney General Opinion M-659, for example, this offke stated that while the
constitutional holdover provision requires an officer who has resigned to continue to
serve, it does not follow that the offker may withdraw an effective resignation because of
his or her holdover status, “[n]or does it follow that a ‘vacancy’ has not thereby been
created subject to being tilled by the proper authorities.” Attorney General Opinion
M-659 (1970) at 3.

                                   SUMMARY

               An independent school district board member’s written, signed
          resignation that has been delivered to the school board is &ective
          upon its acceptance by the school board or on the eighth day after
          the date of its receipt by the school board, whichever occurs earlier.
          A resignation may not be withdrawn atIer it becomes effective.
          Although the board member whose resignation has become effective
          must hold over until his or her successor qualifies for office, the
          board member’s holdover status does not permit the board member
          to withdraw the resignation.

                                                    Yours very truly,              /



                                                    DAN MORALES
                                                    Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHJRLEY
Chair, Opinion Committee

Prepared by Mary R. Crouter
Assistant Attorney General
