I know we have handled this before...but I can't find the archive and am pressed for time.
1) Official wants to present letter of resignation at next Comm Ct meeting effective at the end of next month. I'm thinking that the letter is effective when the Commissioners accept it...nearly positive I read that somewhere. Does anyone know where?
2) The treasurer is the proposed retiree; can't we still go through the Legislature and amendment process to roll that office into the Auditor...if that is the Commissioners' choice?
For your first question, see section 201.001 of the Election Code, which says the resignation must be delivered to the appropriate authority for acting on it (defined in 201.002). If the authority is a body, the resignation may be delivered to the presiding officer or to its clerk or secretary. The vacancy occurs on the date accepted by the authority, or eight days after receipt by the authority, according to 201.023.
Brooks Texas Practice series section 7.17 agrees that a resignation "is not effective until it is accepted by the body with the authority to fill the vacancy and, once accepted, may not be withdrawn." There are several cites, including 412 S.W.2d 949,309 S.W.2d 479, and 240 S.W.2d 791.
Be sure and take a look at State ex rel. Angelini v. Hardberger, 932 S.W.2d 489 (Tex. 1996) on the question of the effective date of an elected official's resignation. That case concerned a court of appeals justice and the governor's constitutional power to appoint a successor. But in the case, the Supreme Court took the position that an elected official essentially has discretionary control over the effective date of their resignation. You should at least read it and satisfy yourself that your situation is distinguishable.
Posts: 1233 | Location: Amarillo, Texas, USA | Registered: March 15, 2001
Regardless of the effective date, doesn't the elected official continue to serve in the position until a successor is appointed or elected, under the holdover provision in Tex. Const. Art. XVI, § 17?
