                       December 28. 1970


Honorable Luther T. Sebren            Opinion No. M-760
County Auditor
Orange County Courthouse              Re:   Questions relating to
Orange, Texas 77630                         resignation of county
                                            commissioner.
Dear Mr. Sebren:
          According to the letter which you have written to this
office, a controversy exists In your county regarding the status
of the office of County Commissioner of Precinct Two, Orange County,
Texas.
          You have Informed us that Allen W. Peveto was first
elected to a four-year term as County Commissioner of Precinct
Two at the general election In 1962 and was re-elected to four-
year terms at the general elections in 1966 and 1970. On November
12, 1970, Commissioner Peveto sent the following letter of reslgna-
tlon to the County Judge of Orange County, Texas:
          "I wish to take this means to notify you
     of my resignation as Commissioner of Precinct
     No. 2, Orange County, Texas. This <eslgnatlon
     Is to be effective January 5, 1971.
On November 17, 1970, Charlie G. Grooms, County Judge of Orange
County, Texas, wrote the following letter to Mr. Peveto:
          "With reference to your letter dated
     November 12, 1970 I am notifying you that I
     accept your reslgnatlon as Commlssloner of
     Precinct number 2, In Orange County, Texas."
On November 24, 1970, Judge Grooms appointed Claude J. Broussard
to the office of County Commissioner of Precinct Two and administered
the oath of office to Mr. Broussard. You ask our opinion upon the
following questions:
          "1. Is the resignation by Commissioner
     Peveto effective January 5, 1971, void, as he
     has attempted to resign an office to which he



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Hon. Luther T. Sebren, page 2   (M-760)


     was duly elected for a four (4) year term on
     November 3, 1970, but as yet has not qualified
     for?' Can he legally resign such a future of-
     fice or must he wait until he has qualified
     for said term of office before he can resign
     same?
          "2. Is Commissioner Peveto the legal
     office holder now?"
          It Is a well settled rule that one elected to an office
cannot qualify for that office prior to the beninnina.of the term
for whlih he was elected. Ex parte Sanders, 147 Tex, 248, 215 S.W.2d
325 (1948). Anderson v. Parsley, 3 S .W.2d 358 (Tex.Clv.App. 1931,
error ref. I. In submitting his resignation from a public office the
officeholder exoresses an lntentlon to rellnaulsh a portion of the
term of office to which he has been elected.- State v. Huff, 172 Ind.
1, 87 N.E. 141 (1909); State v. Ladeen, 104 Minn. 23'1 116 N .w. 486
             Plains Common Consol. School Dlst. No. 1 Af Yoakum County
              120 s.W.2d 322 (Tex.Clv.App. 1938, no writ). While there
Is no Texas'authorlty upon the subject, cases from other jurisdictions
hold that one who has been elected to an office cannot resign from
that office until the time has arrived when he Isentitled to the
office and he has qualified and entered upon the duties of the office.
Jackson v. White, 218 So.Car. 311, 62 S.E.2d 776 (1950); Dolphin v.
Myof                Town of Kearny 116 N.J. 58, 181 Atl. 6-7
Taking these ruies together, lt r;gically follows as a necessary
corollary that an officer who has been elected to a succeeding term
cannot relinquish by means of resignation a portion of the succeeding
term until that term beglns and he has qualified. In answer to
your first question, you are advised that the written reslgnation
of Commissioner Peveto cannot operate as an effective resignation
of any portion of the term of that office which begins on January
1, 1971, since It was beyond his power to do that.
          The answer to your second question depends upon whether
Commissioner Peveto has expressed an intent to relinquish any portion
of the term of office which he Is presently serving. The Intention
of a person must be established as a matter of fact from the state-
ments-and acts of that person. Stelngruber v. City of San Antonio,
220 S.W. 77 (Tex.Comm,App. 1920, opinion adopted)' Jordan Drilling
Co. v. Starr2 232 S.W.2d 149 (Tex.Clv.App. 1950, &ror ref. n.r.e.);
Thomas vntch,    435 S.W.2d 03 (Mo.App. 1968); Mundt v. Mallon, 106
fGn%-.2d           326 (19383   Althou h we have prevlously held in
Attornev ieneral's Oplnlon M-659 (1970e; that when an officeholder
submits-a resignation which is-to‘take.effect In the future It becomes
effective immediately upon acceptance and a vacancy Is created that



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Hon. Luther T. Sebren, page 3   (M-760)


Is subject to being filled by appointment, the situation before
us there was different from the present one because the effective
date specified In that resignation was within the term of office
which the officer was then serving. The rule stated In M-659 can-
not apply to the situation before us now where the effective date
of the resignation Is not within the current term of the officer.
To so hold would be to depart from the above stated definition
of resignation and the decisions which we have cited above. Our
statement In Attorney General's Opinion M-748 (1970) that the rule
announced In M-659 would apply to Commissioner Peveto's written
resignation was In error and that opinion is overruled to that ex-
tent. We now hold that since the written resignation of Commissioner
Peveto, standing alone, does not show an intent to relinquish any
portion of his current term of office, Its acceptance by the county
judge did not create a vacancy In the office. Had matters rested
at this point, we would answer your second question in the afflrma-
tlve. However, your letter reveals that after the county judge
notified Commissioner Peveto that he had accepted Peveto's reslgna-
tlon he appointed Mr. Broussard to the office of Commissioner of
Precinct Two and administered the oath of office to him. Consequently
for the reasons which follow we cannot determine who holds that office
at this time.
          While resignation, either written or oral, is the method
usually followed In relinquishing a public office, It may also be
accomplished by abandonment. The rule to be followed in determining
when an abandonment has occurred is well stated in Stelngruber v.
City of San Antonio, 220 S.W. 77 (Tex.Comm.App. 1920, oplnlon.adopted)
at page 78:
          "A public office may be abandoned. Aban-
     donment Is a species of resignation. Reslgna-
     tion and abandonment are voluntary acts. The
     former Is a formal relinquishment; the latter
     a relinquishment through nonuser. Abandonment
     Implies nonuser, but nonuser does not, of itself,
     constitute abandonment. The failure to perform
     the duties pertaining to the office must be with
     actual or Imputed Intention on the part of the
     officer to abandon and relinquish the office.
     The intention may be inferred from the acts and
     conduct of the party, and Is a question of fact.
     Abandonment may result from an acquiescence by
     the officer in his wrongful removal or discharge,
     but, as in other cases of abandonment, th!
     question of Intention Is involved. . . .



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Hon. Luther T. Sebren, page 4    (M-760)


The rule Is also announced and followed In Sealy v. Scott, 11
S.W.2d 605 (Tex.Clv.A p. 1928 no writ) and Hogg v. Miller, 298
Ky. 128, 182 S.W.2d 212 (19441.
          You do not state In your letter whether, after taking
the oath of office, Mr. Broussard entered into and performed the
duties of the office In question, or whether Mr. Peveto continued
to function in the office. If Mr. Broussard did assume the duties
of the office then Its current status would depend upon the actions
and statements of Mr. Peveto subsequent to that time. That is,
whether, from the acts and statements of Mr. Peveto, we may In
fact infer an Intention on his part to abandon or relinquish his
office to Mr. Broussard.
                     SUMMARY
          A resignation submitted by an Incumbent
     county commissioner who has been elected to a
     new term beginning on January 1, 1971, and which
     states that It is to become effective on January
     5, 1971, is, even though accepted, Ineffective to
     relinquish any part of the new term.
          Such resignation, standing alone, does not
     show an intention to relinquish any part of the
     current term, but where the resignation Is ac-
     cepted and a successor appointed who takes the
     oath of office, the status of the office during
     the current term depends upon whether the ap-
     pointee enters upon the duties of the office
     and, if so, whether the actions and statements
     of the Incumbent thereafter show an Intention
     to relinquish the office.
                                /I




Prepared by W. 0. Shultz
Assistant Attorney General




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Hon. Luther T. Sebren, page 5   (M-760)


APPROVEDa
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Max Hamilton
Steve Hollahan
Michael Stork
Scott Garrison
MEADE F. GRIFFIN
Staff Legal Assistant
NOLA WHITE
First Assistant
ALFRED WALKER
Executive Assistant




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