On behalf of the Bridge City Independent School District, you ask whether a school board member who resigns may withdraw the resignation before his or her successor qurdifks for office. You have submitted a letter from the school district’s counsel that asks about the status of a school board member who “resigns but then returns to the Board before any new member is appointed to tilJ the vacancy.” The letter suggests that rhe act of returning prior to the appointment of a member to till the vacancy results in a situation as ifthe Board member had never resigned.” We diigree.

Under common law, the resignation of a public 05cer is not elfective until it has been accepted by the person or entity having the authority to appoint a successor. Sadler v. Jetier, 46 F. Supp. 737 (N.D. Tar. 1942); Sawyer v. Ci@ of San Antonio, 234 S.W.2d 398 (1950). We believe, however, that this rule has been modifkd with respect to elected officials in this state by sections 201.001(a) and 201.023 of the Election Code, the former of which provides in pertinent part as follows:

To be effective, a public officer’s resignation. . . must be in writing and signed by the officer. . . and delivered to the appropriate authority for acting on the resignation. . . . ?7re unrIrori@ may nor refuse to accept a resQnation.

Elec. Code 8 201.001(a) (emphasis added). Section 201.023 of the Election Code provides that “[i]f an officer submits a resignation, . . . a vacancy occurs on the date the resignation is accepted by the appropriate authority or on the eighth day after the date of its receipt by the authority, whichever is earlier.“t

‘FviorIo1989,tbclau- ofscctim 201.001(a) pmvidd, “A wignatim must be rapted bythmanthorily.” AU ofMay 13, 1985.69thLeS.. RS., ch. 211, 0 1, 1985 Tar Gee h 1005. In Texas Dmowatic Erecuthe Gwnmtttee v. Rains, 1% S.W.2d 306,307 Crcx. 1988), tk Texas Supreme ~concludcdthataadathispmvisionthacwcrro~thrrcdemcnrsfor~dfeEtivcrrrignation- oocearcsigoationiswlinal.slgnedand-tothe %atitbcwri~sipai,8ndQLivaed... rppropriatesuthoaity,thatrndhorityhsrnoditactionintbcmattcrmdL~~u,~L” 1d.m *2 Section 201.002 of the Election Code states that “[ulnless otherwise provided by law, the authority to act on a public officer’s resignation, is the officer or body authorized to make an appointment or order a special election to fill a vacancy in the office.” The Education Code, section 11.060 establishes procedures for filling school board vacancies. In the case of an independent school district, the school board is the body authorized to make an appointment or order a special election to fill a vacancy in the board. Educ. Code 5 11.060(a), (c),2

Based on the foregoing provisions, we conclude that an independent school district board member’s written, signed resignation that has been delivered to the school board is effective upon its acceptance by the school board or on the eighth day after the date of its receipt by the school board, whichever occurs earlier. The school board member may withdraw the resignation before it becomes effective. The letter submitted with your request suggests that a school board member may withdraw his or her resignation after it has been become effective. This is not the case. It is well-established in this state that a public officer may not withdraw a resignation once it has become effective. See, e.g., Sadler v. Jester, 46 F. Supp. at 740; Amarillo v. Mendenhall, 276 S.W.2d 868 (Tex. Civ. App.--1955, error refd n.r.e.); Attorney General Opinions DM-248 (1993) at l-2 (once resignation of police officer has become effective, resignation cannot be withdrawn); M-659 (1970) at 2 (county attorney is not entitled to withdraw resignation once effective); Letter Opinion No. 94-059 (1994). Of course, a public officer holds over until his or her successor qualifies for office under article XVI, section 17 of the Texas Constitution.

We note that a 1940 opinion of this office concluded, on the basis of the constitutional holdover provision, that the resignation of a school board member does not become effective until his or her successor has been appointed and that, as a result, a school board member may tithdraw his or her resignation prior to that time. See Attorney General Opinion O-1432 (1940). This is not the modern view, however. In (footnote continued)

307. Under this statute as interpreted by the court, a written, signed resignation would kcome cffcaive upon delivery to the appropriate authority. The legislature amended the last sentence of section 201.001(a) to its pnwnt form in 1989. See Act of May 22, 1989, 71st Leg., RS., ch. 1187, 5 1, 1989 Tex. Gen. Laws 4833. It also amended section-201.023, adding “or on the eighth day after the date of its xceipt by the authority, whichever is earlier.” Id. 5 2. A legislative bill analysis states that these amendments were made in response to the court’s holding in Texas Democrolic Encufiw Commirfee v. Rains, and suggests that the legislature intended, at leas7 in par& to create a period bctwom dclivcry of a tigaation and its aczeptana during which the resigning official would be able to withdraw the tignation. See House Research Organization, Bill Analysis, S.B. 546. 71s~ Leg., RS. (1989); see also House Comm. on Elections, Bill Analysis, S.B. 546,71st Leg., RS. (1989).

%cancies on boards of trustees of independent school districts are filled by the board until the next trustee election. Educ. code 8 11.060(a). If a board is appointed by the governing body of a munici- pality, that governing body appoints a trustee to serve the remaining unexpired tam. Id. 5 11.060(b). In addition, the appropriate body has the option of ordering a special election. Id. 5 11.060(c). *3 Attorney General Opinion M-659, for example, this offke stated that while the constitutional holdover provision requires an officer who has resigned to continue to serve, it does not follow that the offker may withdraw an effective resignation because of his or her holdover status, “[n]or does it follow that a ‘vacancy’ has not thereby been created subject to being tilled by the proper authorities.” Attorney General Opinion M-659 (1970) at 3.

SUMMARY An independent school district board member’s written, signed resignation that has been delivered to the school board is &ective upon its acceptance by the school board or on the eighth day after the date of its receipt by the school board, whichever occurs earlier. A resignation may not be withdrawn atIer it becomes effective. Although the board member whose resignation has become effective must hold over until his or her successor qualifies for office, the board member’s holdover status does not permit the board member to withdraw the resignation.

Yours very truly, / Attorney General of Texas JORGE VEGA

First Assistant Attorney General

SARAH J. SHJRLEY

Chair, Opinion Committee

Prepared by Mary R. Crouter

Assistant Attorney General