Untitled Texas Attorney General Opinion ( 1944 )

Honorable T. M. Trimble
first Assistant
State Superintendent of Public Instruction
Austin, Texas
Dear Sir: gpeinion No. O-6259
: Whether holdover school
trustee is authorized to
vote in selecting his
successor and related
matter.
Your request for opinion upon matters related to you by the
Superintendent of Public Schools of Pairfield, Texas, has
been received and carefully considered. ive quote from the
Superintendent's letter to'you as follows:.
"I would like for you to get the Attorney General's ruling on
the following two questions: If a trustee is duly elected
by popular vote and refuses to-qualify the outgoing trustee
holds over until his successor is duly qualified, does this
holdover trustee have the power to vote in selecting his
successor or does he hold over until the next annual election
in April? What difference will a half-uncle make, if a
person Is half-niece by marriage or affinity? In this case,
the trustee is a half-uncle-by marriage. He sis.the president
of the School Board and has to sign the pay checks. This
person would be disqualified if they were a full niece by
affinity but I do not know what difference this would make
In the case of this teacher."
We assume that your question relates to an independent school
district and will consider it on that basis.
Article 2777, Vernon's Annotated Texas Civil Statutes,
applicable to independent school districts, reads as follows:
"The seven candidates receiving the largest number of votes
at the first election, and the three or four candidates re-
ceiving the largest number of votes at all subsequent elections,
shall be entitled to serve as trustees hereunder. Those elected
at the first election shall determine by lot the term for woich
they are to serve. The four members drawing the numbers one,
-_. .
Hon. T. M. Trimble - Page 2, o-6259
two, three and four shall serve for one year, and the three
members drawing the numbers five, six and seven shall serve
two years, or until the second of April theresfter, and until
the.ir successors are elected and qualified; and regularly
thereafter on the first Saturday in April of each year, four
trustees and three trustees, alternately, shall be elected for
a term of two years, to succeed the trustees whose term shall
at that time expire. The membars of the board remainlna after
a vacancy shall fill the same for the unexpired term. Id.”
(Underscorihg ours).
Article 16, Section 17, Constitution of Texas, provides:
“All officers within this state shall continue to perform the
duties of their offices until their successors shall be duly
qualified.”
Although it has been held that under the above quoted constl-
tutional provision an officer who holds over until his successor
is dul qualified, Is a de jure officer. (Cowan v. Capps,
278 s. j: . 283; state v. Jordan, 28’S.ri. (2) 921) It has been
held that the failure to ‘elect a successor constitutes a
“vacancy” in said office within th,“,;;;nlvng of a statute pro-
vidin for filling of a vacancy. . Wornell, 65 S.W.
(2) 320. Undoubted1 y we think the same rule would apply where
a trustee WE9 elected but failed to qualify within the time
allowed by law.
The holdover trustee’s term of office has already expired -
he is merely holding,over until his successor duly qualifies.
The failure of the person elected to qualify within the time
allowed by law constitutes a “vrcancy” (for appointive purposes)
in the office of trustee. Although the holdover trustee is a
de jure officer capable of transacting business pending the
time his successor is appointed and qualifted, it is our
opinion that he would not be considered “a member of the board
remaining after a vacancy ” for the purpose of appointing his
successor, de call particular attention to the language quoted
above from Article 2777. It does not provide that the “board
of trustees” shall fill such v acancy but that “the members
of the board remaining” shall fill the vacancy. We are supsorted
in this holding by authorities cited’in’Opinlon No. o-761 of
this department, a copy of which Is enclosed herewith. The hold-
over trustee will hold over until his successor ClUSlifiSS.
Answering your second question, it Is our opinion that the
relationship between the trustee and teacher (half-uncle and
half-niece, respectively, by affinity) comes within the degree
(second degree) prohibited by our anti-nepotism laws. See
Hon. T. M. Trlmble - Page .3, o-6259
authorities cited in Opinion No. 0-3016 of this department,
a copy of which is enclosed herewith.
Yours very truly
ATTORNEYGENERALOF TEXAS
s/ Wm. J. E'annkg
Wm. J. Fanning
Assistant
WJF:BT/cg
A?lROVELl hlAY 5, 1945
s/ Grover Sellers
ATTORNEYGENERALOF TEXAS
Approved Opinion Committee
By BWB, Chairman