Can a Texas school board member take back a resignation before a successor is chosen?

Plain-English summary

A trustee on the Bridge City Independent School District board resigned and then tried to return to the board before anyone was appointed to replace the seat. The district's lawyer argued that coming back before the vacancy was filled put things back to where they started, as if the trustee had never resigned. On behalf of the district, Representative Ron Lewis asked the Attorney General whether a school board member can withdraw a resignation before a successor qualifies for office.

The Attorney General said no, the resignation cannot simply be undone once it is effective. At common law a public officer's resignation was not effective until it was accepted by whoever appoints the successor. But Texas changed that for state officers through the Election Code. Section 201.001(a) says a resignation must be in writing and signed and delivered to the proper authority, and that the authority "may not refuse to accept" it. Section 201.023 says a vacancy occurs when the resignation is accepted or on the eighth day after the authority receives it, whichever is earlier. For an independent school district, the proper authority is the school board itself, which fills vacancies under Education Code section 11.060.

Putting these together, the office concluded that a board member's written, signed resignation delivered to the board becomes effective when the board accepts it or on the eighth day after the board receives it, whichever comes first. Before that effective date, the member can withdraw the resignation. After it, the member cannot; Texas law is well settled that a public officer may not take back a resignation once it has become effective.

The district's argument leaned on the constitutional "holdover" rule, which says an officer keeps serving until a successor qualifies (article XVI, section 17). The office explained that holding over does not reopen the resignation. The holdover rule keeps the office staffed in the meantime, but the vacancy still exists and can be filled by the proper authority. The office acknowledged that a 1940 opinion (O-1432) had read the holdover provision the other way, allowing withdrawal until a successor was appointed, but said that is "not the modern view" and pointed to its later Opinion M-659, which holds that holdover status does not let an officer withdraw an effective resignation.

Currency note

This opinion was issued in 1996. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

This opinion construed Election Code sections 201.001, 201.002, and 201.023, Education Code section 11.060, and the constitutional holdover provision (article XVI, section 17), as they stood in 1996 after the Legislature's 1989 amendments. These statutes can change, and the section numbers or the eight-day rule may differ today. Read this page for the office's 1996 reasoning, and verify the current Election Code and Education Code before relying on any specific deadline.

What the opinion meant at the time

For school board members: The opinion meant a member who resigned had only a short window to change course. A withdrawal worked only before the resignation became effective (on board acceptance or the eighth day after receipt); after that, the resignation stood and could not be taken back.

For school boards: The opinion meant the board, as the authority that fills its own vacancies, could not be forced to treat a returning member as if no resignation had happened once the resignation was effective. A vacancy existed and could be filled.

For other public officers: The opinion restated the general Texas rule that a public officer cannot withdraw a resignation once it is effective, and that the holdover requirement (serving until a successor qualifies) does not change that.

For lawyers: The office applied Election Code sections 201.001(a) and 201.023 (as amended in 1989 in response to Texas Democratic Executive Committee v. Rains) to set the effective date, confirmed the no-withdrawal-after-effective rule (Sadler v. Jester; Amarillo v. Mendenhall; Opinions DM-248 and M-659), and treated the 1940 Opinion O-1432's holdover reasoning as superseded.

Common questions

Can a school board member who resigned change their mind?
Only within a limited window. Under this opinion, the member can withdraw the resignation before it becomes effective, but not afterward. The resignation becomes effective when the board accepts it or on the eighth day after the board receives it, whichever is earlier.

When exactly does the resignation take effect?
On the date the school board accepts the written, signed resignation, or on the eighth day after the board receives it, whichever comes first (Election Code section 201.023).

Does coming back before a replacement is named cancel the resignation?
No. The office rejected the argument that returning before the vacancy is filled erases the resignation. Once effective, the resignation stands and a vacancy exists.

If the member must keep serving until a successor qualifies, isn't the seat still theirs?
The member does hold over and keep serving under article XVI, section 17 of the Texas Constitution, but the office said holding over does not let the member withdraw an effective resignation. The seat is treated as vacant and is filled by the proper authority.

Who fills a school board vacancy?
For an independent school district, the board fills the vacancy (by appointment until the next trustee election) or may order a special election (Education Code section 11.060).

Background and statutory framework

At common law, a public officer's resignation took effect only when the appointing authority accepted it (Sadler v. Jester; Sawyer v. City of San Antonio). Texas modified that rule for its officers through the Election Code. Section 201.001(a) requires a resignation to be in writing, signed, and delivered to the appropriate authority, and bars that authority from refusing to accept it. Section 201.023 fixes when the vacancy occurs: on acceptance, or on the eighth day after receipt, whichever is earlier. Section 201.002 identifies the "appropriate authority" as the officer or body that appoints a successor or orders a special election, which for an independent school district is the board itself (Education Code section 11.060).

These provisions reached their current shape in 1989. As the office explained, before 1989 the statute simply said a resignation "must be accepted by the authority," and in Texas Democratic Executive Committee v. Rains the Texas Supreme Court held that a written, signed, and delivered resignation left the authority no discretion, so it became effective on delivery. The Legislature responded in 1989 by amending section 201.001(a) and adding the "eighth day after receipt" language to section 201.023, which a bill analysis described as creating a window between delivery and acceptance during which the official could still withdraw.

Applying all of this, the office concluded a board member may withdraw before the effective date but not after, because Texas law firmly bars withdrawing an effective resignation (Sadler v. Jester; Amarillo v. Mendenhall; Opinions DM-248 and M-659; Letter Opinion 94-059). It then addressed the holdover argument. Article XVI, section 17 keeps an officer in place until a successor qualifies, but the office, following Opinion M-659, held that holdover status neither lets the officer withdraw an effective resignation nor prevents a vacancy from arising for the proper authority to fill. The office expressly noted that its 1940 Opinion O-1432, which had used the holdover provision to allow withdrawal until a successor was appointed, is "not the modern view."

Citations

Constitutional and statutory provisions discussed:

• Tex. Const. art. XVI, § 17 (officer holds over until a successor qualifies)
• Election Code § 201.001(a) (form of resignation; authority may not refuse to accept), § 201.002 (the appropriate authority), and § 201.023 (when the vacancy occurs)
• Education Code § 11.060 (filling school board vacancies; subsections (a), (b), (c))

Cases cited:

• Sadler v. Jester, 46 F. Supp. 737 (N.D. Tex. 1942) (common-law acceptance rule; no withdrawal once effective)
• Sawyer v. City of San Antonio, 234 S.W.2d 398 (1950)
• Amarillo v. Mendenhall, 276 S.W.2d 868 (Tex. Civ. App. 1955, error ref'd n.r.e.)
• Texas Democratic Executive Committee v. Rains, 756 S.W.2d 306 (Tex. 1988) (pre-1989 statute; resignation effective on delivery)

Attorney General opinions cited:

• DM-248 (1993), M-659 (1970), O-1432 (1940) (treated as superseded), and Letter Opinion No. 94-059 (1994)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0406
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1996/dm0406.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

July 29, 1996

The Honorable Ron Lewis
Chair, County Affairs Committee
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78768-2910

Opinion No. DM-406

Re: Whether an independent school district board member who resigns may withdraw the resignation before his or her successor qualifies for office (RQ-885)

Dear Representative Lewis:

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 qualifies 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 fill the vacancy." The letter suggests that "the act of returning prior to the appointment of a member to fill the vacancy results in a situation as if the Board member had never resigned." We disagree.

Under common law, the resignation of a public officer is not effective until it has been accepted by the person or entity having the authority to appoint a successor. Sadler v. Jester, 46 F. Supp. 737 (N.D. Tex. 1942); Sawyer v. City of San Antonio, 234 S.W.2d 398 (1950). We believe, however, that this rule has been modified 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. . . . The authority may not refuse to accept a resignation.

Elec. Code § 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."[1]

Section 201.002 of the Election Code states that "[u]nless 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 § 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 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 ref'd n.r.e.); Attorney General Opinions DM-248 (1993) at 1-2 (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 withdraw his or her resignation prior to that time. See Attorney General Opinion O-1432 (1940). This is not the modern view, however. In Attorney General Opinion M-659, for example, this office stated that while the constitutional holdover provision requires an officer who has resigned to continue to serve, it does not follow that the officer 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 filled 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 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. A resignation may not be withdrawn after 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,

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Mary R. Crouter
Assistant Attorney General

Footnotes:

[1] Prior to 1989, the language of section 201.001(a) provided, "A resignation must be accepted by the authority." Act of May 13, 1985, 69th Leg., R.S., ch. 211, § 1, 1985 Tex. Gen. Laws 1005. In Texas Democratic Executive Committee v. Rains, 756 S.W.2d 306, 307 (Tex. 1988), the Texas Supreme Court concluded that under this provision there were three elements for an effective resignation: that it be written, signed, and delivered. Once a resignation is written, signed, and delivered to the appropriate authority, that authority has no discretion in the matter and must accept it. Id. at 307. Under this statute as interpreted by the court, a written, signed resignation would become effective upon delivery to the appropriate authority. The legislature amended the last sentence of section 201.001(a) to its present form in 1989. See Act of May 22, 1989, 71st Leg., R.S., ch. 1187, § 1, 1989 Tex. Gen. Laws 4833. It also amended section 201.023, adding "or on the eighth day after the date of its receipt by the authority, whichever is earlier." Id. § 2. A legislative bill analysis states that these amendments were made in response to the court's holding in Texas Democratic Executive Committee v. Rains, and suggests that the legislature intended, at least in part, to create a period between delivery of a resignation and its acceptance during which the resigning official would be able to withdraw the resignation. See House Research Organization, Bill Analysis, S.B. 546, 71st Leg., R.S. (1989); see also House Comm. on Elections, Bill Analysis, S.B. 546, 71st Leg., R.S. (1989).

[2] Vacancies on boards of trustees of independent school districts are filled by the board until the next trustee election. Educ. Code § 11.060(a). If a board is appointed by the governing body of a municipality, that governing body appoints a trustee to serve the remaining unexpired term. Id. § 11.060(b). In addition, the appropriate body has the option of ordering a special election. Id. § 11.060(c).