     OFFICE   OF   THE   ATTORNEY    GENERAL    OF   TEXAS

                            AUSTIN




iionorableki.L. Washburn
county Auditor
Barris county
Houston, Texas




                                               s department upon
the queetion w                                  temporary appoint-
ment by the Cr                                   Harris County, as
iiajorin the                                    as oauscd a raoancy
in the offio                                   ney ot that oounty,
which would
                                       riminal Distrlot Attorney
                                       Major in the &my of the
                                      Doter as that which was in-
                                                 l.67 9.   1.   (2)   147.
                                             f the State of tex-
                                           a oiril offber ot
                                            an otl'ioerin the

                     , aeotion 40,
                     5inoe the Criminal Distriot Attorney
has not taoated hii office by acoepting and qualifying for
the office of Galor in the Arzg oi the United States, he is,
under existing laws, entitled to his salary.
          IOU reier to 8enate Bill 145, passed by the 45th
Legislature, the applicable part of which reads as tollovsr
                                                                  182

    Honorable Ii.L. Washburn -   page   2




              "9eot10n 1. Uhen there shall occur a
.        physical vacancy in a public office In tM.s
         State, by reason of death or otherwise,the
         duties uud pourersof such office &all imme-
         diately devolve upon the first assistantor
         chief deputy if there be one, who shall con-
         duct the affairs of the office until the ta-
         oancy in the term thereof shall be filled by
         the appointment or election and qualifica-
         tion of a successor to the principal officer)
         should any such vacancy occur while the Legis-
         lature is in session (where the appointee
         must be confirmed by the Senate) such first
         assistant or chief deputy (as such) shall not
         discharge the duties of the office for a long-
         er period than three (3) weeks and in no event
         after such session of the Legiulaturehas ad-
         journcd. The provisions hereof shall not ap-
         ply to vacancies in the membership of boards
         or comdssions ,*

              This Act has no applicationwhatsoever to the
    situation herein Involved. Its purpose Is to provide for
    the continuingoperution of a public office la this State
    in the Interim betreen the occurrenceof a physical vacancy
    in such offioe~an&“thetime when an appointmentcan be made
    to fill such vacancy, and the appointeeduly qualify. The
    term *physicalvaczncyw Is used to d.istiz&.@shbetween a
    vacancy in office and c vacancy in the term.
               aA distinction may be drawn between a
         vacancy in office and a vacancy in the term.
         hy a vacancy in an office is usually meant
         that the office is empty and that it Is
         uithout an incumbent who has a right to ex-
         ercise Its functions md take its ices and
         emolume2t.s.*-- 22 R.C.L. p.438.
              The term gphysical* or *corporal*vacancy is a
    term used to describe a Vacancy in office*, 22 A.C.L. p.
    438; 42 Am*Jur. p.977.
              It is clear, we think, that Senate Bill 145 was
    not Intended to apply to the situationwhere a public offl-
    cer Is simply absent or falls to attend to the duties of
    his office. The term *physical vacancy*,in our opinion, was
                                                              183

~E&mdrableH. L, Jachburn - page 3



used adrlsedly to refer to the situation where the ofMce
is without an incumbent ei+,herde lure or de facto.
          It la rell establlsbedthat the mere absence of
a public ofticer, or his failure to discharge the duties
of his office, does not ipso facto create a vacancy,
either In the oifice or in the texm.
          Under the decision above crentime3, your Criminal
District Attorney is still such $$gJure, hence Senate Bill
Uo. 146 does not apply.


                               very   truly   yours
                          ATTOIUGZYGEIWUL 03 TEXAS

                          Hy          m-
                                        R. 3-1Fairchild
                                              Assistant
