     HonorableJohn OR.Shook
     Criminal District Attorney
     San Antonio, Texas
     De& Sir:                 Opinion No. o-855
       ,
                             .Re: Whethe~r,Asaessorand Col-
                                  lector can withdraw his
                                  written re8ignationbefore
                                  the same,ia,actedupon by
                                  the Commisalonera~Court.
             "Rowe
                 &e lnreoeipt offyour letter of..May19, 1939
     whereln.y&outllne the following facts:
               OnRay 12, 1939,,-Albert.V..Huthdellvered'tothe
     Comml.ss~lonera*.Court
                          his written resignationa8 Tax.,Asses-
     sor dnd.ColleatorofE3exar Cotity. 'Oti~Naay
                                               13, 1939, he
     delivered to thensame 'body'awrltten,wLthdrawalof such
     resignation. In the .meanwhllethe CominlsslonerstCourt
.’
     had takenno:aotlon upon his resignat;lon.You request
     our opinionfin~responseto the,follow,tigtwo questions:
             ."What effect did the making of said reslg-
         nation by'Mr. ~Huthand the filing same In Com-
         miaeloners'Court have !upon.Mr.Huth's rights
         to hold office as asseesor and ~collectorof
         Rexar,.Countyl
              "What effectsdid the attemptedwithdrawal
         by,Mr. Ruth of said~retiignatlonhave upon:Mr.
         Huth's rights as'assessor and collector of
         Dexar County?!
               You have also kindly furnishedus with a copy of
     your opinion upon tblismatter whereti you expressed the view
     that no action on the part of the Commiasloners'~Courtwas
     necessary to give effect to Mr. Hu,th'sresignationand that
     his attemptedrlthdrawal of the resignationhad no effect.
     You base youropinion upon 34 Tex. Jur. p. 58$;:Byersvs.
     Crisp, 2 Tex;~App. Civ..Cases., Sec. 707 and Chownlng vs.
     Boger, 2 Tex:App. Clv. Cases,.Sec.742.
                                                             .   -c




Hon. John R. Shook, May 24, 1939, Page 2


          In the case of Byers vs. Crisp, supa, which you
mention, the question of a withdrawal of a resignationwas
not concerned. It was held in that case "that when an of-
ficer delivers his uncondltlonalresignationto the.proper
authoritiesto take effect at once, it is effectual with-
out acceptanceand the office is vacant." In the case of
Chowning vs. Boger, supra, the court mentloned its holding
in the Byers vs. Crisp case, but In the Chomlng case,
neither the effective date of a resignationnor the possi-
ble effect of a withdrawalof a resignationwas before the
court.
          We take the followingquotation from Tooele-
County vs. Della Mare, 59 Pac. (26) 1155, by the Supreme
Court of Utah:
                        I                 .
          "Accordingto some authorities the Fight to
    relinquish an office la absolute and effective-
    even though not ixcepted by the proper offioers.
    State v. Fitts, 49 Ala. 402; People v. Porter, 6
    Cal. 26; Meeker vi Reed, 70 Oal; bpp. 119, 232 P.
    ,760;Gates v. Delaware County, stipra;State v.
  . Lincoln, 4 Reb. 260~;State v. Clarke',3.Nbv. 566.
    The'great weight of authority, however, Is to the
    effect that a resignationla not effective until1
    Ft is accepted by the proper authorities.
    Thompson v. United States, 103-U. s. 480, 26'~.
    ,Ed.521; Edwards v;'IJnited States, 103 u. S. 471,
    26 L.,Ed. 314; Badger v. United Stateti~,93 U. S.
    599, 23 L. Ed. 991; People v. Williams, 145 Ill.
     573, 33.n'.E. 849, 24 L.R.A..492 36 Am.St.Rep.
    514; State v. Buff, 172 Ind. 1,~67 N. E. 141,
     139 Am.St.Bep. 355; State v. Council Qrove Board
     of Education, 108 Kan. 101,'193 Pi 1074; Pa@&tDicg
     v.~Haglna;41 3. W. 31, 19 Ky. Law Rep. 482;
    Clark v. Detroit Board of Education, 112 Mlch.
     656, 71 N.W. 177. FryeP'v. lioi%on,67 B.J.Law,
     537, 538, 52 A. 476; Van Ors'dallv. Hazard, 3
    Bill (N.Y.) 243; State v. ClevelandDist. Board
     of Education, 23 ,OhioCir. ct. R. (B.S.) 98;
     Commonwealthv. Hess, 2 Pa.Dlst. & Co.R. 530;
    State v. Stickler, 80 S.C. 64, 61 s.E.~211, 128
    Am.St.Rep. 855, 15 Ann. Cas. ,136;Stateiv. Bush,
     141 Tenn. 229,,2O8 S.W. 607; Coleman v. Sands,
     87 Va. 689, 13 9. E. 148; State v. Kitsap county
     Superior Court, 46 Wash. 616, 91 P. 4, 12 L.R;A.
            1010; 123 Am.St.Rep. 948, 13 Ann. Cas.
      70; State v. JefferLs, 26~Wyo. 115, 178 P. 909.1
.

    Ron. John R. Shook, May 24, 1939, Pa&e 3


              Our courts have never followed the Byers case.
    ;E izeihoughtthat the court overlookedthe effect of Art.
           . 17 of the Constitutionof Texas, which provides
    t&t "all officers within this State shall continue to
    perform the duties of their offices until their successors
    shall be duly qualified."
              We quote from the opinion of the Court of Civil
    Appeals in the case of McGhee v. Dickey, 23 3. W. 404,
    as follows:
              "The contentionof appellant that this un-
         oonditionaltender of resignation created a
         vacancy in the office of county judge of Wil-
         barger county Is supported by a decision of the
         court of appeals, reported in 2 Wils. Civil
         Cas. 8 3 707, 708, and by other authorities
         aited in thatopinion. We have reached the
         conclusion,however, that the weight both of
         reason and authority Is with the holding that,
         so far as the rights of third persons are aon-
         oerned, a public office does not become vaaant
         by an una'ccepted resignation,especially in
         this state, where we have the following oon-
         stitutionalprovision:    'All officers within
         this state shall oontinue to perform the duties
         of their offices until their sucaessors shall
         be duly qnallfied.1 Const. Art. 16, % 17. In
         this respect the state, It seems, like nature,
         abhor3 a vacuum. The public necesaltg for oon-
         tinoity of official tenure is not left to the
         caprice of the office-holder."
              In the cases of Keen vs.'Featherston,693.'~.
    983 (error refused), Ei Paso and F.W.R. Co. v. Ankenbauer,
    175 S. W. 1090, Ringllng vs. City of Hempstead, 193 Fed.
    596, It was held that under the above constitutional:pro-
    vision an officer'sresignation does not become effective
    until the appointmentand qualificationof his successor.
              In Budger vs. U. S., 93 u. 3. 599, 23 L. Ed.
    991, under a oon3tltutionalprovision of Illinois almost
    Identical with our own, the Supreme Court held that the
    qualificationof a successor was neoesaary to the effective-
    ness of a resignation.
       Hon. JohnR. Shook, May 24, 1939, Page 4


                 In some states the law seems to be that an offl- ..
       cer*s resignation takes effect immediatelyupon delivery. .,
       In most lnatanoes we further find In those states that once
       delivered,a resignationcannot be withdrawn. In the case
       of State vs. Murphy, 97 Pac. 391, by the Supreme Court of
       Wevada, it was recognized that an unconditionalreslgnatlon
       could not be wlthdrawn due to the fact that the office be-
       comes vacant immediatelyupon'tenderof rwlginationby the
       incumbent. However, in that case it was held that since
       the resignation was not outrlght and unconditional,tit
       was to take effect on a designatedfuture day, the same
       could be withdrawn before the time that It should take
       effect. In the case of State vs. Fowler, 48 So. 985, the
       Supreme Court of Alabama recognized the law to be In that
       State that an unconditionalresignation of a public officer
       to.take effeot Immediatelycould not be wlthdrawn. However,
       the,resignationin.that oaae was not an unconditionalone
       and we quote from the courtls opinion as follows:

                 #"Theresignation, In the case at bar, was
            not nncondltlonal,as was the one inthe Fitts~.
            Case, supra, but was to become'flnalandFu;zEve
            only upon the acceptanceby the judge;              .~.
            ditional acceptance by the judge would have rendered
            the resignationconclusiveand.effective;but,
            tihilethe-accept,ancewas ~indorsedby the'judge
           August 21, 1908, it was conditional,ln'thatlts
           operationand )effectwas postponed until September
            19, 1908. The'acceptancenotbecoming effective
            until said lgth.of September, the respondent had
            the rightto withdraw said resignation,which he
            did on the 12th of September,,:Ig08..The resignation
            was by Its terms to take effect only upon the ac-
            ceptance by the judge, and, the judge having made
            the acceptance effective upon a-future day, the
. ._        respondent had the right to tiithdraw,f3ald
                                                     resignation
            before the arriva~lof the datefixed by the judge.,
            The resignationdid not,take effect Immediately,
            but was subject to the acceptanceof the judge,
            and effectjlveonly uponthe time',designated:by him,,
            and was withdrawn before the said ac~ceptance, by
            its very terms, 'became.effective;"      .
                                            ./,
                 We quote from,the .opimion.of~theSupreme Court of
       South~Carolina in the case of State vs..Stickley,.61S. E.
       211,~as follows:'
Hon. John R. Shook, May 24, 1939, Page 5


           "The remaining questions presented by the
     petition and return all depend upon lvhethera pub-
     lic officer, who has tendered his resignation
     unconditionally,can withdraw the same before ac-
     ceptance; or what is the effect of an unconditional
     resignation. On this question the authositiesare
     not in accord. There is a line of cases main-
     taining the propositionthat an unconditional
     resignationtendered to the authority entitled to
     receive it cannot be withdrawn. State v; Fitts,
     49 Ala. 402; State v. Hauss, 43 Ind. 105, 13 Am.
     Rep. 384; State ex rel. Kirtley v. Augustine, 113
     MO. 21, 20 S. W. 651, 35 Am. St. Rep. 696; State
     v. Clarke, 3 Nev. 566. On the other hand at com-
     mond law and in a~great number of,the states the
     doctrine prevails that the resignationof a public
     officer is not complete until.it is either ex-
     pressly or by implibationaccepted'bythe proper
     authorities. State'v. Clayton, 27 ICan.442, 41
     Am. Rep. 418; Coleman v. Snade; 87 va. 689;~13
     S..E. 148; State v. FerguBon,'31 N. J. Law, 107;
     Van Orsdall v. Hazard, 3 Hii1 (N,Y.)  243; Edward3
     v. United States,,l.O3~U. S.'471, 26,L. Ed. 314;
     Hake v. Henderson, 15 N. C. 1, 25 Am. Dec. 677;'
     1 Dillon, Munic. Corp. (3d Ed.)-249. fn the case
     of State v. Ancker,,2 Rich. Law, 245, this rule
     was applied to.'theresignation.oEcertain'offi-
     cers and members of a'ohurch, the court saying:
      'The question is whether such a re&igri&tion~haa
     been made and accepted according to law, and in a
     way obligatoryon all the parties to this contro-
     .versy. To make it so there must have been both a
     resignationcum animo and an acceptanceof it on
     the part of the acting and responsiblegovernment
    ,at the time.' In the absence 'ofstatute this rule
     is supported by the better reasoning and the
     greater weight of authorities,and has beetiadopted
     by the Supreme Court of the Unit&I States. Edwards
     v. United States, 103 U. S. 471, 26 L. Ed,.314.
     Until the tender or offer to resign is accepted by
     the proper authority, it can be withdr~awn."
          We regard the law as being settled in this State
that an officer's resignation cannot take effect'untilhis
successor has been appointed and has qualified according.to
lay. We are not here concerned with certain  exceptions to




                                                              -
Hon. John R. Shook, May 24, 1939, Page 6


that rule, such as were Involved in the cases of State vs.
Valentine, 198 S..W. 1007, and Lowe vs. State, 201 S.W. $36.
Under Article 16, Section 17, of our Constitution,the law
reads Into every resignationthe condition that It shall not
take effect until the resigning officer's successor has been
appointed and has duly qualified. Mr. Huth,was Tax Assessor
and Collec!toron May 13, .1939,at the time he delivered to
the Commissioners'    Court his withdrawal of:the resignation
tendered on'the    day before, the Commissioners'  Court Chad
taken noiaction upon such tendered resignation.,    and we can
perceive no'reason why Its withdrawalshould not be given
effect. Our answer to your questions,,therefore,      is that the
'withdrawalof the kesignation     placed the situation in the
same attitude as If 'no.$es:,gnat$on   had e.verbeen tendered to
the Commissioners1Court.
                                        Yours very truly
                                   ATPORIiEYGJ3Idl?RALOF.TgXAS

                                   BY /a/ alenn R..Lewis
                                     'QlennOR; Lewis
                                           Aaalstant
GRL:N;~ay,
,APPRQVED'
/a/ Gerald C. Warm           '
ATTORNEY GENERAL OF TE@s
                                        ,BY h?/ REK
                                          Chairman
