                           Armrrs.   TEXAS     78711
<:1**wP"RD  c. ,MARTIS
  Ax-rORNEY GF.NFz:RAI.
                                January 13, 1971


      Honorable Robert S. Calvert            Opinion No. M-772
      Comptroller of Public Accounts
      State of Texas                         Re:   Construction of Section 33
      Austin, Texas 78711                          of Article XVI, Constitution
                                                   of Texas.

      Dear Mr. Calvert:

                Your request for an opinion on the above subject
      matter reads in part as follows:

                 "The Comptroller of Public Accounts re-
            spectfully requests your official opinion in re-
            gard to the issuance and payment of warrants for
            salaries to State employees who have held other
            offices or positions of trust or profit under the
            State of Texas in circumstances made known to the
            Comptroller as described below.



                 "YOUP opinion is requested whether the Comp-
            troller may issue and pay warrants for the salaries
            of the individuals mentioned above following vaca-
            tion by them of their offices as commissioners,
            councilmen and mayors of Texas cities.  If your
            answer is in the affirmative, please advise as
            to each individual the effective date from which
            payment of salary may commence."

                You state in your request that the State employees in
      question held concurrently with their State employment the office
      of city mayor, city commissioner, or city councilman.  Each has
      now resigned his position as city mayor, city commissioner, or
      city councilman, as the case may be, and such resignation has
      been duly accepted, and their successors in each occasion have
      now been duly appointed and have qualified for the office.

                On November 23, 1970, in Cause No. 181,374, in the
      53rd District Court of Travis County, Texas, it was determined


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Hon. Robert S. Calvert, page 2     (M-772)



by judgment and decree of the Court that Section 33 of Article
XVI of the Constitution of Texas, prohibits the Comptroller of
Public Accounts from drawing a warrant in payment of salary
or compensation of a person who is employed as a professor
at Texas A&M University so long as that person holds the
elective office of Mayor or City Councilman of the City of
College Station, Texas. Since that cause is still pending in
the courts of this State, we will not express an opinion con-
cerning whether Section 33 of Article XVI is applicable to a
State employee who concurrently holds the office of mayor,
city commissioner or city councilman.  However, in view of the
fact that each employee involved in your request no longer
holds the office of mayor, city commissioner or city councilman,
we are permitted to answer your questions without deciding the
question which is involved in the above referred to pending
litigation.

          A public officer cannot arbitrarily divest himself
of his office. McGhee v, Dickey 23 S.W. 405 (Tex.Civ.App.
1893, no writ). The resignation'of a public officer does not
become effective until it has been accepted by the proper au-
thority. Sawyer v. City of San Antonio, 149 Tex. 408, 234 S.W.2d
398 (1950; Tobin v. Valerio, 309 S.W.Zd 479 (Tex.Civ.App. 1958,
error ref.).

           Section 17 of Article XVI requires all public of-
ficers to occupy their office and perform the duties incident
thereto until a successor has qualified. This provision
operates to continue in office an officer who has not ef-
fectively resigned, Jones v, City of Jefferson, 66 Tex. 576,
1 S.W. 903 (1886); as well as one whose resignation has been
duly accepted but no successor qualified,   El Paso and S.W.R.
Co. v. Ankenbauer, 175 S.W. 1090 (Tex.Civ.App. 19 15, error ref.);
Keen v, F eatherston, 69 S.W. 983 (Tex*Civ.App. 1902, error ref.);
Attorney General's Opinion M-659 (1970).
          In each of the instant cases described in your re-
quest, the State employee has resigned the office he held with
the city, his resignation has been accepted, and his successor
has qualified. YOU are accordingly advised the Comptroller may
issue and pay warrants for the salaries of the individuals
mentioned in your request on the date each of their successors
qualified for the office with the city that such State employees
previously held.




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Hon. Robert S. Calvert, page 3     (M-772)



                        SUMMARY

          Since the State employees in question have
     resigned city offices previously held by them and
     their successors to such offices have qualified,
     the Comptroller may issue and pay warrants for
     salaries of such State employees.
                              /'




Prepared by John Reeves
Assistant Attorney Genera

APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Bill Craig
Ben Harrison
Jerry Roberts
Jack Goodman
Roger Tyler

MEADE F. GRIFFIN
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOLA WHITE
First Assistant




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