          THEATRTORNEY            GENERAL
                       OFTEXAS




     _.            .
HdncPable W. LetiO'Danlel
GdErnor of-'Texas
Austin,
  -.    Texas
Dear Sir:                   Opinlofi~Noio-1561               .
                            Re: Vacancy in House of Representa-
                                 tives.
           By your Ietter.of October 10, 1939, you ask the
6ppiniofi
        izif
           this departmentupon the putistlon  whether;.underthe
f%icts-st&t@B,beIow,there is now a vacancy in Flotorial Dis-
trict, Tarrant and Denton
                       -. countles,~DFstrlctNo. 102-F.
           It seems that GbnJuly 5, 1939, W."~N.Carry; member
of .theHouse of Representativesfrom Flotorltil  Dlstrict'No'i
102LF, tendizired-'to
                   you In wrlt~nghis~:reslgnatlon,  which was
uiicondltloiial,
               and pMvld-&d that 'Itwas to be effectiiie immea-
lately; that you did ridtaccept same*,but Mr. Carry was not
aavls,eaby you that yoiiobjected to his resignation,his retilg-
tiatidhbHng retainba and filed In ybur ofTice   without objec-
tlon; that shortly-.'afterfiling hlslres‘ignat%onwith you, Mr.
Coi~g'acceptedan appointmentas Assistant Dire&or of the Old
Age AsaIstance Commlsfilon of this State from that body, and
workea as such Assistant"DlrectoPuntil September 1, 1939, the
time at which, by legislativeenactment,the a&nlnistPative-   set-
up of the Old Age Assistance Commissionwas bhanged; and U-i&it on
October 11; 1939, Mr. Corry tendered'to ybu a letter withdrawing
hLs resignation. An independentinvestigationconducted by"us
in thi Comptroller'soffice and the office of the State Treasurer
Indicates that for Mr’. Carry's services as AssistantDirectoF
of the Old Age Assistance Comtnisslon for the ,monthsof,July and
Au st 1939 the Comptrollerdrew a warrant for the sum of
$2%;06 to &. Carry for his services durlng"the-'month   of July,
1939, which was, being Warrant No. 107719, paid according to
the records in the Treasur'tir'sofflce on August 2, 1939* The
Comptrollerlikewise arew'~awarrant to Mr. Carry for the sum of
$3OO'.OCfor his services as AssistantDirector of the Old Ag-e
Assistaiice-.Commissfonfor the month of August, 1939, which was,
being'Warrant No. 115041; paid tinSeptember 5, 1939, according
to the records of the State Treasurer'soffice.
           It seems~"yourinquiry arises from your desire to kilow
whether you should act lnplrsuance to the provisions of Article
III, Section 13, of our ConstitutFon,whFch provides:
Honorable W, Lee O'Danie;,page 1           ~-1561



           Viierivacancies occur In either House,
    the Governor, or th6 peruor?exercisingthe power
    of the Goverrior,shell iYi3b.e
                                 writs of election
    ti,fill such vacaccles;and should the Governor
    fail tb Issue a writ of election~tofill ar_y
    such vacancy withir2twenty days after It occurs,
    the rettiming bfflcer of the district in tihich
    such vacancy m&g have happer.ed,shall be author-
    1ze3 to order an slectior.for that purpose.*
           It is unnecessary; fi)rthe purposes of-this opiiilon,
to determine whether In this State an unconditionalresignatloh
to take effect lmmedlately,delivered to the prbper officer, Is
effectual to create a vacancy  without an ovetitacceptance there-
of by such office?, It.Is llkewise'unnecessaryto determine
whether the place of AssistantD,irectorof the Old Age Assis-
tan& Commlssion Is an "office?of emolumentwithFn th'6meaning
of Article XVI, Section 4.0,of our Constltutionbso t&t the
acceptance and qtialfficatiofitherefor automaticallyvacated the
offlctiof Legislator. .We have reached the conclusion that there
exists a vacancy in Flotorlal District No. 102-F upon other
grounds.
           It is well settled that a public bffice may be abandoned
(34 Tex. Jur. 365; Stelngrubervs.~City of SafiAntonio, (Commis-
sion of Appeals) 220 SUW. 77). Abandonment may, according to the
huthorltles,be Inferred from the acts ana conduct of the bfficer,
and, of course* an abandor,mentof a legislatlv,e
                                               office creates a
vacancy therein requiring compliancewith Article III, Section
13, of our Constltutlon.

           Article II, Section 1, of CUP Constitution,provides:
           "The powers of the Government of the
    State of Texas shall be divided into three dfs-
                       each of which shall be con-
    tlnct departmer,i;s?
    fided to a separate body of magistracy, to-wit:
    Those which are Legislativeto or,e;those which
    are Executive to another, arAdthose wtllchare
    Judicial to ar,oti;er;
                         and r-opeyso?, or collec-
    tlon of p&rsons, being of one of r;hesedepart-
    ments, shall exercise any power properly attached
    to either of the others, except in the instances
    herein expressly permitted."
           Article XVI, Seetlon 33, of our Constitutionprovldess
             "The accounting officers of this State
    shall nslther draw or pay a warrant upon the
    Tpeasury   in favor of any person! for salary or
Honorable W. Lee O'Daniel, page 3        o-1561



    compensationas agent, officer or appointee,who
    holds at the same tlme any other office or posl-
    tlon of honor, trust or profit, under this State
    or the United States, except as prescribed in this
    Constltutlon. Frovlded, that this restrictionas
    to the drawing and paying of warrants upon the
    Treasury shall not apply-to officers of the Natlon-
    al Guardof Texas, the National Guard Reserve,
    the Officers Reserve Corps of the United States,
    nor to enlisted men of the National Guard, the
    Natlonal Guard Reserve, and the OrganlsedReserves
    of the United States, or to retired officers of
    the United States Army, Navy, and Marine Corps,
    and retired Warrant Officers and retired enlisted
    men of the United States Army, Navy,and Marine
                  33 Article XVI, adopted election
    ~~F~~er(~~Ciy332~)"

           The acts and conduct of Mr. Corry evidence conclusive-
ly an abandonment of his legislative office. He tendered to
Your Excellency in writing an unconditionalresignationto take,
effect lmmealately. Thereafter', although Article 1I;'Sectlon'1,
of our Constltutlon,prohibits a person of the leglslatlvebranch
of the government from exercising powers properly belonging to
the executive branch, Mr. Carry accepted and exercised the power
and authority of an AssistantDirector of the Old Age Assistance
Commission,in the executive branoh'of our'government. By so
doing he necessarilyrepresented that he was no longer a member
of the leglslatlvebranch of our government. His acceptance of
the appointmentas Assistant Director in the Old Age Assistance
Commlsslonnecessarily involved a representationthat he no
lo er held his office (Terre11 vs. King, 118 Tex. 237, 14 3.W.
(23  786) as Legislator.
           Llkewlse, Mr. Carry's acceptance of salary or compen-
sation as an appointee of the Old Age Assistance Commission in
the aapac'ltyof AssistantDirector necessarily Involved the
representationthat he was not disqualified,under Article   XVI,
Section 33, from accepting such salary or compensation,for
Article XVI, Section 33, of our Constitution,would prevent pey-
meritof salary or coinpensatlonfor his services as either Leg-
islator or as AsslstantDirector of the Old Age Assistance Com-
mlsslon so long as he held both places. (See opinion by the
Honorable C. M. Cureton, Reports and Opinions of the Attorney
General, 1912-1914,page 873.)   Upon the faith of'the represen-
tatlone necessarily involved In Mr. Carry's acts and conduct,
the State was induced to compensate him for his services as Assls-
tant Director of the Old Age Assistance Commission. Upon the
plainest principles of equity and public policy, Mr. Cor~~y'ls
now estopped to a.ssertthat he had not vacated hls office as
Honorable W. Lee O'Danlel, page 4         o-1561



LeglsltitoriIt follows, of course, that Mr. Carry's attempted
withdrawal; on October 5, 1939, of his resignation,IS lneffec-
t:iveto-resttjre'td-'him
                       the title to the legislative office, for
&iioffice once vacated may not be resumed titthe will or.plea-
@tie of the officer-lo(46 C.J.,~p. 980; State vs. krph    30
NW. 409, 426, 97 Pac. 391, 720, 18 L.R.A. (N.S.) 1210.7'
           You arti,therefore,advised that, in our opinion,
there .noQexlsts~a vacancg'in-'FlotorlalDistrict No. 102-F,
        and Denton Countles, and that you should'thetiefore
Ta‘rraiit                                                   pro-
ceed as required by the Constitution,Article III, Section 13.
                             Yours very truly
                          ATTORNEY GENERAL OF TEXAS

                             By s/R. W. Falrchlld
                                  R1 W. Fairchild
                                  AssIstant
RWF:FG:wc

APPROfW) OCT 24, 1939
s/gerald C. Mann
ATTORNBY GBURAL OF TILQIS

Approved Opinion CommltteeBY s/BwB Chairman
