Texas Attorney General Opinion: O-1561 Page: 2 of 4
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Honorable W. Lee O'Daniel, page 2
"Whrer vacancies occur in either House,
the Governor, or the person exercising the power
of the Governor, shall issue writs of election
to fill such vacancies; and should the Governor
fail to issue a writ of election to fill any
such vacancy within twenty days after it occurs,
the returning officer of the district in which
such vacancy may have happened, shall be author-
ized to order an election for that purpose,"
It is unnecessary, for the purposes of this opinion,
to determine whether in this State an unconditional resignation
to take effect immediately, delivered to the proper officer, is
effectual to create a vacancy without an overt acceptance there-
of by such officer 0 It is likewise unnecessary to determine
whether the place of Assistant Director of the Old Age Assis-
tance Commission is an "office". of emolument within the meaning
of Article XVI, Section 40, of our Constitution, so that the
acceptance and qualification therefor automatically vacated the
office of Legislator. We have reached the conclusion that there
exists a vacancy in Flotorial District No. 102-F upon other
It is well settled that a public Office may be abandoned
(34 Tex. Jur, 385; Steirru.ber vs. City of San Antonio, (Commis-
sion of Appeals) 220 SW. 77). Abandonment may, according to the
authorities, be inferred from the acts and conduct of the officer,
and, of course, an abandonment of a legislative office creates a
vacancy therein requiring compliance with Article III, Section
13, of our Constitution.
Article II, Section 1, of our Constitution, provides:
"The powers of the Government of the
State of Texas shall be divided into three dis-
tinct departments, each of which shall be con-
fided to a separate body of magistracy, to-wit:
Those which are Legislative to one; those which
are Executive to another, and those which are
Judicial to another; and no person, or collec-
tion of persons, being of one of these depart-
ments, shall exercise any power properly attached
to either of the others, except in the instances
herein expressly permitted0."
Article XVI, Section 33, of our Constitution provides:
"The accounting officers of this State
shall neither draw or pay a warrant upon the
Treasury in favor of any person for salary or
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Texas. Attorney-General's Office. Texas Attorney General Opinion: O-1561, text, 1939; (texashistory.unt.edu/ark:/67531/metapth258749/m1/2/: accessed December 15, 2018), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; crediting UNT Libraries Government Documents Department.