OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN iionorableki.L. Washburn county Auditor Barris county Houston, Texas s department upon the queetion w temporary appoint- ment by the Cr Harris County, as iiajorin the as oauscd a raoancy in the offio ney ot that oounty, which would riminal Distrlot Attorney Major in the &my of the Doter as that which was in- l.67 9. 1. (2) 147. f the State of tex- a oiril offber ot an otl'ioerin the , aeotion 40, 5inoe the Criminal Distriot Attorney has 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 2 "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 pourersof such office &all imme- diately devolve upon the first assistantor 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 Legiulaturehas ad- journcd. The provisions hereof shall not ap- ply to vacancies in the membership of boards or comdssions ,* This Act has no applicationwhatsoever to the situation herein Involved. Its purpose Is to provide for the continuingoperution of a public office la this State in the Interim betreen the occurrenceof a physical vacancy in such offioe~an&“thetime when an appointmentcan be made to fill such vacancy, and the appointeeduly qualify. The term *physicalvaczncyw Is used to d.istiz&.@shbetween 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 has 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 not Intended to apply to the situationwhere a public offl- cer Is simply absent or falls to attend to the duties of his office. The term *physical vacancy*,in our opinion, was 183 ~E&mdrableH. L, Jachburn - page 3 used adrlsedly to refer to the situation where the ofMce is without an incumbent ei+,herde lure or de facto. It la rell establlsbedthat 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 $$gJure, hence Senate Bill Uo. 146 does not apply. very truly yours ATTOIUGZYGEIWUL 03 TEXAS Hy m- R. 3-1Fairchild Assistant