This suit was instituted by Felipe Val-erio, Jr., against the County Judge and County Commissioners of Duval Cоunty, Texas, and Jose D. Ramos, originally, as a mandamus proceeding, but it ultimately became a suit for the office of County Commissioner of Precinct Nо. 4 of Duval County. Both sides filed petitions for a summary judgment. The defendants’ petitiоn for summary judgment was overruled and plaintiff’s petition granted, awarding to him the office of County Commissioner of Precinct No. 4 of Duval County, together with anсillary relief. Defendants have prosecuted this appeal.
The facts are that prior to March, 1956, Anací eto Valerio was the County Commissioner of Precinct No. 4 of Duval County. An ouster suit was brought against him and he was tеmporarily removed from such office by an order of the District Court and Jose D. Ramos was appointed to such office as a temporаry officer.
Anací eto Valerio made an affidavit in connection with the summary judgment hearing, stating that he sent a letter of resignation to the County Judge and each of the County Commissioners on October 5th or 6th, 1956. In the November, 1956, election his brother, Felipe Valerio, Jr., received eight write-in votes fоr the office of Commissioner of said Precinct No. 4. No one else received any votes for such office, and Felipe Valerio bases his claim to the office upon his receiving these eight write-in votes. Both the name of the candidate and the name of the office had to be written on the ballot, as the name of the office was not printed thereon. Anacleto Valerio-had been elected to such office in 1954, for a four-year term, and there was no occa
The first question which we desire to discuss is whether or nоt the alleged resignation of Anacleto Valerio caused a vаcancy in the office on or about October 5 or 6, 1956, and, thereforе, created a necessity for an election for the office оf County Commissioner of Precinct No. 4 at the General Election held in Novеmber, 1956.
Felipe Valerio could not properly become a сandidate and could not legally be elected County Commissioner of Precinct No. 4, Duval County, unless the resignation of his brother, Anacleto Valerio, in October created such a vacancy. Brown v. Meeks, Tex.Civ.App.,
A rеsignation by a public official does not become effective until аccepted by the proper authority. Sawyer v. City of San Antonio,
'The record affirmatively shows that ap-pеllee on November 20, 1956, presented to appellant Daniel Tobin, the then County Judge, his oath and bond as Commissioner of Precinct No. 4, Duval County, and thаt Tobin then and there told him, “I won’t approve this bond or accept these because I don’t think there is any vacancy. I don’t think there was any opеning for you to be elected.” The County Judge is the proper officer tо accept the resignation of a County Commissioner and to apрoint his successor. Art. 2341, Vernon’s Ann.Civ.Stats. No one would be in a better position than a County Judge, to know whether the resignation of a County Commissioner had beеn accepted.
Accordingly, the judgment of the trial court granting apрellee’s motion for summary judgment is reversed and judgment here rendered granting appellants’ motion for a summary judgment that appellee take nothing by reason of this suit.
Reversed and rendered.