Case Information
*1 THEATRTORNEY GENERAL OFTEXAS
_. .
HdncPable W. Leti O'Danlel
GdErnor of-'Texas
Austin, Texas -. . Opinlofi~Noi Dear Sir: Re: Vacancy in House of Representa- tives.
By your Ietter.of October 10, 1939, you ask the 6ppiniofi izif this department upon the putistlon whether;.under the f%icts-st&t@B,beIow, there is now a vacancy in Flotorial Dis- trict, Tarrant and Denton countles,~DFstrlct No. 102-F. -.
It seems that Gbn July 5, 1939, W."~N. Carry; member of .the House of Representatives from Flotorltil Dlstrict'No'i 102LF, tendizired-'to you In wrlt~nghis~:reslgnatlon, which was uiicondltloiial, and pMvld-&d that 'It was to be effectiiie immea- lately; that you did ridt accept same*, but Mr. Carry was not aavls,ea by you that yoii objected to his resignation, his retilg- tiatidh bHng retainba and filed In ybur ofTice without objec- tlon; that shortly-.'after filing hlslres‘ignat%on with you, Mr. Coi~g'accepted an appointment as Assistant Dire&or of the Old Age AsaIstance Commlsfilon of this State from that body, and workea as such Assistant"DlrectoP until September 1, 1939, the time at which, by legislative enactment, the a&nlnistPative- set- up of the Old Age Assistance Commission was bhanged; and U-i&it on October 11; 1939, Mr. Corry tendered' to ybu a letter withdrawing hLs resignation. An independent investigation conducted by"us in thi Comptroller's office and the office of the State Treasurer Indicates that for Mr’. Carry's services as Assistant DirectoF of the Old Age Assistance Comtnisslon for the ,months of, July and Au st 1939 the Comptroller drew a warrant for the sum of $2%;06 to &. Carry for his services durlng"the-'month of July, 1939, which was, being Warrant No. 107719, paid according to the records in the Treasur'tir's offlce on August 2, 1939* The Comptroller likewise arew'~a warrant to Mr. Carry for the sum of $3OO'.OC for his services as Assistant Director of the Old Ag-e Assistaiice-.Commissfon for the month of August, 1939, which was, being' Warrant No. 115041; paid tin September 5, 1939, according to the records of the State Treasurer's office.
It seems~"your inquiry arises from your desire to kilow whether you should act lnplrsuance to the provisions of Article III, Section 13, our ConstitutFon, whFch provides: *2 Honorable W, Lee O'Danie;, page 1 ~-1561
Viieri vacancies occur In either House, the Governor, or th6 peruor? exercising the power of the Goverrior, shell iYi3b.e writs of election ti, fill such vacaccles; and should the Governor fail tb Issue a writ of election~to fill ar_y
such vacancy withir2 twenty days after It occurs, the rettiming bfflcer of the district in tihich such vacancy m&g have happer.ed, shall be author- 1ze3 to order an slectior. for that purpose.*
It is unnecessary; fi)r the purposes of-this opiiilon, to determine whether In this State an unconditional resignatloh to take effect lmmedlately, delivered to the prbper officer, Is effectual to create a vacancy without an ovetit acceptance there- of by such office?, It. Is llkewise'unnecessary to determine whether the place of Assistant D,irector of the Old Age Assis- tan& Commlssion Is an "office? of emolument withFn th'6 meaning of Article XVI, Section 4.0, of our Constltutionb so t&t the acceptance and qtialfficatiofi therefor automatically vacated the offlcti of Legislator. .We have reached the conclusion that there exists a vacancy in Flotorlal District No. 102-F upon other grounds.
It is well settled that a public bffice may be abandoned Tex. Jur. 365; Stelngruber vs.~ City of Safi Antonio, (Commis- sion of Appeals) 220 SUW. 77). Abandonment may, according to the huthorltles, be Inferred from the acts ana conduct of the bfficer, and, of course* an abandor,ment of a legislatlv,e office creates a vacancy therein requiring compliance with Article III, Section of our Constltutlon.
Article II, Section 1, of CUP Constitution, provides: "The powers of the Government of the State of Texas shall be divided into three dfs- tlnct departmer,i;s? each of which shall be con- fided to a separate body of magistracy, to-wit: Those which are Legislative to or,e; those which are Executive to another, arAd those wtllch are
Judicial to ar,oti;er; and r-o peyso?, or collec- tlon of p&rsons, being of one of r;hese depart- ments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted."
Article XVI, Seetlon of our Constitution provldess "The accounting officers of this State shall nslther draw or pay a warrant upon the in favor of any person! for salary or
Tpeasury
Honorable W. Lee O'Daniel, page 3
compensation as agent, officer or appointee, who holds at the same tlme any other office or posl- tlon of honor, trust or profit, under this State or the United States, except as prescribed in this Constltutlon. Frovlded, that this restriction as to the drawing and paying of warrants upon the Treasury shall not apply-to officers of the Natlon- al Guardof Texas, the National Guard Reserve, the Officers Reserve Corps of the United States, nor to enlisted men of the National Guard, the Natlonal Guard Reserve, and the Organlsed Reserves of the United States, or to retired officers of the United States Army, Navy, and Marine Corps, and retired Warrant Officers and retired enlisted men of the United States Army, Navy,and Marine 33 Article XVI, adopted election ~~F~~er(~~Ciy332~)"
The acts and conduct of Mr. Corry evidence conclusive- ly an abandonment of his legislative office. He tendered to Your Excellency in writing an unconditional resignation to take, effect lmmealately. Thereafter', although Article 1I;'Sectlon '1, of our Constltutlon, prohibits a person of the leglslatlve branch of the government from exercising powers properly belonging to the executive branch, Mr. Carry accepted and exercised the power and authority of an Assistant Director of the Old Age Assistance Commission, in the executive branoh'of our'government. By so doing he necessarily represented that he was no longer a member of the leglslatlve branch of our government. His acceptance of the appointment as Assistant Director in the Old Age Assistance Commlsslon necessarily involved a representation that he no lo er held his office (Terre11 vs. King, Tex. 237, 14 3.W. (23 786) as Legislator.
Llkewlse, Mr. Carry's acceptance of salary or compen- sation as an appointee of the Old Age Assistance Commission in the aapac'lty of Assistant Director necessarily Involved the representation that he was not disqualified, under Article XVI, Section from accepting such salary or compensation, for Article XVI, Section of our Constitution, would prevent pey- merit of salary or coinpensatlon for his services as either Leg- islator or as Asslstant Director of the Old Age Assistance Com- mlsslon so long as he held both places. (See opinion by the Honorable C. M. Cureton, Reports and Opinions of the Attorney General, 1912-1914, page 873.) Upon the faith of'the represen- tatlone necessarily involved In Mr. Carry's acts and conduct, the State was induced to compensate him for his services as Assls- tant Director the Old Age Assistance Commission. Upon the plainest principles of equity and public policy, Mr. Cor~~y'ls now estopped to a.ssert that he had not vacated hls office as *4 Honorable W. Lee O'Danlel, page 4
Leglsltitori It follows, of course, that Mr. Carry's attempted withdrawal; on October 1939, of his resignation, IS lneffec- t:ive to-resttjre'td-'him the title to the legislative office, for &ii office once vacated may not be resumed tit the will or.plea- @tie of the officer-lo C.J.,~p. 980; State vs. krph 30 NW. 409, 426, 97 Pac. 391, 720, L.R.A. (N.S.) 1210. 7'
You arti, therefore, advised that, in our opinion, there .noQ exlsts~a vacancg'in-'Flotorlal District No. 102-F, Ta‘rraiit and Denton Countles, and that you should'thetiefore pro- ceed as required by the Constitution, Article III, Section 13.
Yours very truly ATTORNEY GENERAL OF TEXAS By s/R. W. Falrchlld R1 W. Fairchild AssIstant RWF:FG:wc
APPROfW) OCT 24, 1939
s/gerald C. Mann
ATTORNBY GBURAL OF TILQIS
Approved Opinion Commlttee BY s/BwB Chairman