5inoe the Criminal Distriot Attorney not taoated hii office by acoepting and qualifying for the office of Galor in the Arzg oi the United States, he is, under existing laws, entitled to his salary.

IOU reier to 8enate Bill 145, passed by the 45th Legislature, the applicable part of which reads as tollovsr

182 Honorable Ii. L. Washburn - page "9eot10n 1. Uhen there shall occur a

. physical vacancy in a public office In tM.s State, by reason of death or otherwise, the duties uud pourers of such office &all imme- diately devolve upon the first assistant or chief deputy if there be one, who shall con- duct the affairs of the office until the ta- oancy in the term thereof shall be filled by the appointment or election and qualifica-

tion of a successor to the principal officer) should any such vacancy occur while the Legis- lature is in session (where the appointee must be confirmed by the Senate) such first assistant or chief deputy (as such) shall not discharge the duties of the office for a long- er period than three (3) weeks and in no event after such session of the Legiulature has ad- journcd. The provisions hereof shall not ap- ply to vacancies in the membership of boards or comdssions ,*

This Act has no application whatsoever to the situation herein Involved. Its purpose Is to provide for the continuing operution of a public office la this State in the Interim betreen the occurrence of a physical vacancy in such offioe~an&“the time when an appointment can be made to fill such vacancy, and the appointee duly qualify. The term *physical vaczncyw Is used to d.istiz&.@sh between a vacancy in office and c vacancy in the term.

aA distinction may be drawn between a vacancy in office and a vacancy in the term.

hy a vacancy in an office is usually meant that the office is empty and that it Is uithout an incumbent who a right to ex- ercise Its functions md take its ices and emolume2t.s.* -- 22 R.C.L. p.438.

The term gphysical* or *corporal* vacancy is a term used to describe a Vacancy in office*, 22 A.C.L. p. 438; 42 Am*Jur. p.977.

It is clear, we think, that Senate Bill 145 was Intended to apply to the situation where a public offl- not Is simply absent or falls to attend to the duties of cer office. The term *physical vacancy*, in our opinion, was his *3 ~E&mdrable H. L, Jachburn - page 3

used adrlsedly to refer to the situation where the ofMce is without an incumbent ei+,her de lure or de facto.

It la rell establlsbed that the mere absence of a public ofticer, or his failure to discharge the duties of his office, does not ipso facto create a vacancy, either In the oifice or in the texm.

Under the decision above crentime3, your Criminal District Attorney is still such $$g Jure, hence Senate Bill Uo. 146 does not apply.

very truly yours ATTOIUGZY GEIWUL 03 TEXAS Hy m-

R. 3-1 Fairchild Assistant