Case Information
*1 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 ive quote from the been received and carefully considered. 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 holds over until his successor is duly qualified, does this holdover trustee have the power to vote in selecting 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, He sis.the president is a half-uncle-by marriage. This of the School Board and has to sign the pay checks. if they were a full niece by
person would be disqualified 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. 2777, Vernon's Annotated Texas Civil Statutes,
applicable to independent school districts, reads as follows: receiving "The seven candidates largest number of votes at the first election, and the three or four candidates re- ceiving largest number of votes at all subsequent elections, Those elected shall be entitled to serve as trustees hereunder. shall determine by lot the term for woich at the first election The four members drawing the numbers one, they are to serve.
-_. .
Hon. T. M. Trimble - Page 2, three and four shall serve for one year, and the three
two, 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). 16, Section 17, Constitution of Texas, provides:
“All officers within this state shall continue to perform 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- 65 S.W. vidin for filling of a vacancy. . Wornell, (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 is a de jure officer capable of transacting business pending time his successor is appointed and qualifted, it is our opinion that he would not be considered “a member of the board after a vacancy ” for the purpose of appointing remaining de call particular attention to the language quoted successor, It does not provide that the “board above from Article 2777. shall fill such v acancy but that “the members of trustees” the vacancy. We are supsorted of the board remaining” shall fill in this holding by authorities cited’in’Opinlon No. o-761 of The hold- this department, a copy of which Is enclosed herewith. over trustee will hold over until his successor ClUSlifiSS. it Is our opinion that the
Answering your second question, relationship between and teacher (half-uncle and respectively, by affinity) comes within the degree half-niece, See (second degree) prohibited by our anti-nepotism laws. *3 - Page .3, Hon. T. M. Trlmble
authorities cited in Opinion No. 0-3016 of this department, a copy of which is enclosed herewith.
Yours very truly ATTORNEY GENERAL OF TEXAS s/ Wm. J. E'annkg Wm. J. Fanning Assistant WJF:BT/cg
A?lROVELl hlAY 5, 1945
s/ Grover Sellers
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee
By BWB, Chairman