Honorable  Louis Dugas, Jr.                Opinion       No. M-748
County Attorney
Orange County Courthouse                   Re:     Questions   relating    to
Orange, Texas    77630                             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   pro-
vides    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 un-
        til 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 com-
      missioner,    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.            Al-
though it is true that the Constitution              has made specific        pro-
vision   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 re-
quest,   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 appoint-
ment.    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 Consti-
tution,    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 Legis-
lature    to provide      for the filling       of vacancies        in offices      by ap-
pointment     where the Constitution           has not provided          a method for
doing so.       You are therefore         advised    that Article         2341 is consti-
tutional     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.

                                            -3644-
 .,    .




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    Code, has no application
to vacancies    in offices      that are to be filled      by appointment.
It makes no attempt to specify          whether a vacancy shall      be filled
by appointment      or election,     but merely undertakes     to establish
the procedures      for calling     and holding   an election   otherwise
required   by law.     Attorney     General’s   Opinion WW-550 (1959).

                                SUMMARY

              Article  2341, Vernon’s   Civil  Statutes,  pro-
       viding   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 call-
       ing of a special     election     to fill      the office   of
       county commissioner.
                                                   -7
                                             Very,truly    you_rs,




Prepared       by W. 0. Shultz
Assistant       Attorney General


                                       -3645-
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.

MEADEF. GRIFFIN
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOLA WHITE
First Assistant




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