Resignations and Vacancies – An Endless Source of Confusion

The Odessa-American reported on July 14th that Ector County Judge Susan Redford is leaving office in mid-October to take a position with the Texas Association of Counties. In the course of reporting this, the paper noted that the judge didn’t want to refer to this as a resignation and couldn’t “do so formally because of how the law is written.” BZZZT. Wrong!

Sigh.

Once again, a misleadingly worded statute has left someone confused. In this case, the culprit is Section 201.023 of the Texas Election Code, which says that a vacancy occurs immediately when a governing body accepts an officer’s resignation, even if the resignation itself is for a future date. The Ector County commissioners were afraid that if their county judge tendered a prospective resignation, the county would be instantly without a judge, and Judge Redford would instantly be without a paycheck.

That’s not how it works, and that’s not the correct reading of the statute. If Judge Redford had resigned with an effective date of October 15th, say, the acceptance of the resignation would only be treated as a vacancy on July 14th (or whenever it might have been accepted) FOR THE PURPOSE OF FIGURING OUT WHEN TO SCHEDULE AN ELECTION, not for the purpose of actually leaving the position vacant.

This is a common error, and it’s unfortunate that in this case, the misunderstanding actually affected how a county judge worded her notice to her county commissioners’ court.

Section 201.021 of the Texas Election Code notes that the subsequent statutes relating to vacancies and vacancy-filling are just meant to provide a certain arbitrary date “for this title (i.e., for Title 12 of the Texas Election Code, relating to elections to fill vacancies)” to fix when a vacancy in office has occurred for the sole purpose of identifying filing deadlines and other ministerial administrative tasks.

So, no. County Judge Susan Redford would not have lost her elective office if she had tendered a resignation effective for mid-October. She would not have lost her job until such time as she actually left office.

If she had tendered a written resignation, the county commissioners could have asked, “Okay, given that county offices are filled by election only in November of even-numbered years, when can we appoint someone to temporarily fill the position of County Judge?”

That question isn’t answered by the Election Code – it’s answered by the common-law determination of actual physical vacancy from office. In other words, the commissioners would not have been authorized to act to fill the vacancy until mid-October.

And how exactly would they fill the vacancy? That question isn’t answered by the Election Code either. It’s answered by Section 87.041 of the Texas Local Government Code. If there’s a vacancy in the position of county judge, the remaining commissioners may appoint someone to serve until the next general election. The person they appoint will serve from mid-October of 2015 (or whenever) until the canvass of the November 2016 election, more than a year-and-half from now.