Untitled Texas Attorney General Opinion ( 1939 )

OFFICE OFTHE ATTORNEY GENERALOF TEXAS
AUSTIN
LRY 16, 1639
t:onorabia'2.&. 'I'rinble
PlrfitAssistant ltate Su:erintecCent
hlatln* hxns
Cesr Sir:
%I tirein reoslpt or y
you request the.opinion OS tb
mlttui by L. 8. Qriffln, C
hl8 letter rhioh 309 bare
The taet8 u
olosed by hts letter
al% e.ubttantially&II
was 00oapo6d or E
the0 bad it
.tbe notion t a serentb mea&m.
h%m~ thla first uioatfng; broke U&I,&OWOV8r, it wan o@~nsQ
that there would bs another msetlngthe mst alght TOT the purpoas
of Pilling the vaoanoy and in dw aotiraaof tine all 8%~ of the
aembere:who bEl¬ at that tlraatea4omd rselgnutlomwers notffibd
Of the asetin& aEd its PUrgOW!, Eniors tbe tm&l.ng aoavensd, however,
..
.
. .:,.
2on. T. x. TrImble, Xay 18,.1939, Page 2 .
three of the roEalnlhS six embers presented writton roslgnatlona
to the 4x offlclo seoretary of the school board. At the regularly
appoIntod tixe and plaae cnly the three ?-Lzbersof tha board who
bad not tendarad reslguatlon were present. The three additional
resignationset this tIn4 were browbt up nnd upon notion duly
seconded, the resignations wore aaacptod by the three mubcrs pre-
zont. Ircmadlately aftsr th& acceptanceof them three resignations, .
the remaining three members who were present appointed I'ournew
cezcbersto fill the vacanoles occasionedby those resigning. Pihen
potIfled.of their appolntnent, three of the newly appointed members-
refused to agceptthelr.appoIntaents and r&used to qualify and take
the oath of offIce,, One of the agpolnteea,however, dld~quallfy
and take the oath or office.'
At the mati regular ~eetlng of the board the three m~mbbers
who bad cot tendered resignatIona,and the on4 newly appofnted mm-
ber who had qualIfIed aud takan the oath of office, attended the
ueetlng and appointed throw other persons to fill the pLaces whldh'
,badbeen refusad by the fornor appointees. These last three
appointees then aoaopted the appolntmont,qualified and took the
oath-of ottlB'4:.Nme oi'the trustees-whotendered resignations
ever atte&pted to withdraw such resIgnatIons.
.Tbe followlng'questlonare asked:
*Please advlss us as to: Flrat.the leeal status of the
Soard at the tine the prestdent refused to take a vote on a seventh
Ewmber for the board after a zotlorihad been made for an appointmnt
and duly seconded, when there were only rive rneuberspresent.
wScaond:
Did tha thres members who regained on the board
have authority for aaceptlng resignationsor the otbez thrce.mm-
hers?
"Third: Did ths tL-ee mmbbers heve tho authority to appoint
the four F;emberato the board? .
"Fourth: Rbat is the legs1 status or tba present board?"
A~tlale 2777, P.cvlsedCivil Statutes, aontalns the follow-
log provision:
*The members of the board rsn!aInInSafter a~vacency
shall fill the sesm for the un4xpIred term."
I atlcle 16, Section 17 of tha Constitution of ilexas,1s
03 r0ilo;rs:
!!on.T. St.Trlmble, Yay l2, 1939, Pege 3
"kll offl~ers within this State shall continue to
portorn~the duties of thair'bffleesuntil their auaoessors
shall be duly quallried,"
Although It bea been held that under *his soctlon of the
Constltutlon an.oSflcsrwho holddeover until hls suocessor is duly
quallffed, ia a de Jure oifioer, (Cowan V. Capps, 278 9. w. 283;
T. C. A. 1930, 28 S. ?1.(26) 921) lt has been held .
State f. 3ordiu.1,
tbat the failure to eleot a suooesPor oonrti.tutesa avs~ancy* .In
aaid offiae within the zeaning of a statute providing ror filling
0r a .vaoanoy. Clark Y. Kornd-l, (T, C. A. 1930) 63 S,.W. (2d) 350.
Uud&btsdly the ssae ruZe would apply to real~na~lons,and we thinks
the ~lacss were subjeot to be rllled after the resi@mtloxm were...
preeented. .
A olaforityor the board of trwtses i(laeueasary to aoa-
at&ate a quontm, for the purposo.0~ transaotlngbuBlnesn, whiola
la this-lnstanoe would be rour. Articles 14 end 2779, Retiaed
Clvll Statutes. 'The number:constituting a quorum for the purpose
of traasaotlng business uould et al3 time8 resin a Eajorfty OS.
the agihorlzed mmbershlp notwithstaading the ,faot that the actual
m?abershlp of the board ml&t be rebuaed below aeven because of
~omss V. Abernaw Coun%y Use IndependentSchool
-~t%i%:-(Caa..of Asp. 1920) 290 S. r;.'~WZ.
Although the metiers teadtrlng their resignationswould
continueas da jure offioera oapable of tran'aactlng business, and
the nacabetrequlrod to constitute a quorws would require the
presanos of rour muhera of the board, it does not tieoessarlly
toUou that the mexbtrs who were holding over as de jure trustees,
pending the time their successors would be appointed aud quallfleq,
rould be re&ers of the boaid or ureazilalngaercbers,*for the
purpose or &ppolntlnfjtheir suaceasors or that a quorumwould beg
neoeasary to mkt such appolatmeate, We call partloular attention
to the language quoted above from Artlole 2771. It doesnot pro-
ride that themboard of trustees" shall fill the rscsnoy but that
"the membera of the board reaafaing" shell f1J.lthe raaanoy.. .
I
The only oa8e 1n Zetas which'has come to our attsntloa in
which the polat was attempted to tieraised 1s Barrett P. Tats,
(T.C.A. 1333) 66 S. L. (26) 444. Thb court refused to pess.upon
the issue and disposed of the case upon the ground that-the only
Way to t%6t the legs~ty Or SU& appointmeat was by quo Warrant0
brought la the.nam of the Stata and that the appointed trustees
~t'ore
at least dd tacto trustcea and the rtgularlty of thtlr eleotlon
could not be questioned in a oollateral prooeeding..
::on.T, E'.2rlnble, Kay 1~3,1939; 2qe 4
There la some coufllotbetween the exprcaslonsot the courts
in other jurIadIctlon8,but the oaoe law in Ktntuaky 1s grobcbly
more olearly defined ou this lame than la auy other jurlsdlotlon.
v"ertalndfstluatlons cede bp the oourte of that Stat0 appear to u8
to be well founded and we think thcysinuld be applied to the faots
herein presented.
Zn Gla88 v. City of Eopklnerlllc (Ct. of App. Xy. 1928)
9 S. k. (26) 117, the oourt bald that where vaoanolec were to be fllisd
by a majority of the board, the nczaberswhose term were expiring
u0re not qa.irwa toYiZTst in xialclag appointments to 1111 such
vaoanole8. It was also held that as a aondltfon to valid aotlon the
prcsaaoc of a quorux wsa aeoemary. The oourt, however, dlctln&ch-
ed t&t okso from a 8ltuntlon-inWhich the stat&a would Droride
that the appolatment shonld be Eade br the reucainln~ mcmb&s or
other menbers of the bocrd.
1,
_In Douglas ‘18d?ltUan (Ct. oZ'App8. IQ. 1931) 39 S. 8. (2d)
979, the statute under oonsldcmtlon was a8 iollomt
"kny raoanoy.in said .boc?ii,
from whatever cause ooourrlng,
sh8l.lbe fllltd by the othcrsmabar8 or the board as soon as
..-
'motlcable after such vacanoy oaaura. Tbc mtmborc 80
c&35011shall hold atHoe ror the rcmlnlng part 0r the teru
of.bIa predecessor, and uutl.l.hlsaucce58or 1s cleotcd and
quallilcd subjcot to the provlaiona of hatuoky Constitution,
stct:oa lx.- .
The oourt $n applylag the dI8tltiotlonmentioned in the Class
case, supw, stated:
-'It
:ls argued that there 18 dot now a quorum of.
cllglble members of aaid board. .ThcreSore, the rcua.Iulug
mmbers have no power to fill the vaoauoy. It la said
that the board bad adopted 50 rule requIrlng say number
of parsonsto be preseat to oonctitute a quanta, end that,
in the absenoe ot some statute or rule defining the IWE-
ber acoescary to oonst1tute.aquotttm,the comma law rule
of a uajorltywaa otoessary to oonstltute a legal board.
Clasc v. City of lXopklnsvlllc, 9 S. W. (2d) 117. hit 1s
true t&at po order, lasoisr a8 wo are lnfomed by this
record, had been cede by the board designating a quorum.
It 1s 1lkewIse true that the statute provides no oertnln
number, but eaya that the 'other member5 or the board*
shull fill racauoles. The Glacs oa8e, aupre, olearly
dltierentiatesbetween the statute here and the one under
oonsldemtlon in that case.
i:.on. Ti x. Trimbie, Uay 18, 1939, Page 6
"It is clear that the legisleture Intended by thl8
Aot to have at all tlmea a working board unhamperedby
vacancies and with the continual every prseent ability re-
poslq~ in them to flllvacanoles end perfom duties ¶.zI-
pooed upon them as such oifloiele..'The meaning is 80
apparent on its face aa.to need no conetruotlon. Booth
v. Owcnsboro Board of Education, 229 S. a. 84. be are of
the o?inlon that the Circuit Court oonectly ruled that the
three remalnlng uembera, in the absence'or any atetutory
grovlslon to the contrary, were entitled to act in iill&
these vacancles.~
Aooordi -Ward of Truetees of h&t Llok Graded Common
z"ohooiDistrict v. Grqheral (Ct. of App. Ky. 1931) 45 S. a. -(2i)
S46; %'tor v. $radtord (Ct. App. Xy. 1936) 96 S. W. (2d) 6, where
oiklyone amcber remefned,
'ihe& is.some hqUag4 %I YiaI.ker
v. Ealkor, (T. C. A. 1922)
.24l S. %:525, which ml&t bo oonstrued as lntlmatlngthat the oourt
wuld have agreed with the line or aa oited abova. Inthat .
cam the trial court enjoined the trustees from maw appofntments
to-Zill an~vaozu&ies that t;ight:occur.pending an aqtlon.ror their
removd and the dOUI% Of civil Appe&i hehd:
Vie have all ?onoluded that the trial court erred
in enJoining the detendants from electing a trustee or
trustees, in casi 0r a va'cancy, In 0884 vacanoies..ahoald*,
pccur, by de+th or resi@atlon, so that the board or
~tr&t'eeswciuib.be~rdduced-to loss than a majority or the
number provided by law, the romalnlng trustees could not'
conduct.the arrairs of the school Ulstrlct. Art. 2891
V.-S. Tex. Cir. Stats. Ii this should occur the school
interests mQht'be jeopardized.* -
Te, therefore, answer your questions es iollcns:
Ieat ainoe no vota wae ever taken at the first meeting
and no ono was ever appointed or cleated to oucoeed the first member
who had resigned, the board at that tine we8 composed of seven de
Jure meubcrs capable of transactingbusiness of the ~ohool~dlstrlct
wlth one trustee subject to be replaoed by appointmen% and quallfi-
cation 0r his suocesaor.
Second: Nono or the trustees who hod resigned heving
attempted to withdraw their reelgnatlons, the second question be-
comes lrzaterlal.
-
lion. T. 1. Trlmble, &bay18, 1939, Pace 6
._Third:
__- The three mrebere remaining
. _ after the _rour
resignationshed been tendered wer4 authorizedto appoint WC-
o.eaaormto those rcslg.alngand.when three of theee eppolntees
i‘erwed to accept their appolntmsnteand quality, the four then
remben ot the board acre euthorlzod to procsad to appoint three
aembers to the vacancies whlah had not been tlllad.
?ou.rthr The present board ot trustees at the New Boston
Independent Sohool.Dlstrlot 1s now co=poaed of seven de jure rezbera
oonslsting ot the three mcrrberswho did not resign, the rtrst member
who aocegted his appolntnient,qualified and took tho oath of ottioe
and'the lest three =xmbers who qualllled and took the oath or
ofHoe by virtue of their appointEent.bythe throe original mmbers
and their appointee after his qualifl~ation.
Yours very truly
AT%'OiZBEYDEX?XALOFTZUG