THE AYTORNEY GENERAL
OF 7lrExAs
Aul3-xmw 11. TEXAS
WILL WILSON
A’lTO- GENERAL.
July 18, 1962
Honorable Wm. L. Ferguson Opinion No. WW-1387
County Attorney
Rusk County Courthouse Re: Eligibility of a person to
Henderson, Texas be appointed a school,trus-
tee to fill a vacancy in
such office, when such per-
son has not resided In the
school district for six months
Dear Mr. Ferguson: prior to such appointment.
You have asked the following question:
“Is a person eligible to hold of-
fice as a school trustee In an lnde-
pendent school district who has been
appointed by the board to fill a va-
cancy when this person has not resided
in the school district for six months
prior to said appointment?”
Article 1.05, Texas Election Code, provides in part:
“No person shall be eligible to
s State, county,
clpal office in this ?%GuifeFiZ
shall begible to hold office un-
der the Constitution of this State,
and unless he shall have resided in
this State for the period of twelve
(12) months and six,(b) months In the
county, precinct, or municipalit I
which hefferslmself
o as a can%d$e,
next preceding any general or special
election, and shall have been an ac-
tual bona fide citizen of sa
precinct, or municipality
months. . . .I’ pmphasis w
Whitmarsh v. Bucklex, 324 S.W.2d 298 (Clv.App. 1959) was a
case involvlnn the right of one elected trustee and one aDDOinted
~trustee of th: Aldine-Independent School District In Harris County
to continue to serve on the Board of Trustees, after the area in
which they resided was de-annexed from the Aldlne Independent
Honorable Wm. L. Ferguson, page 2 Opinion No. WW-1387 *
School District and annexed to the Houston Independent School
District. The Court of Civil Appeals held that Art. 1.05, Texas
Election Code, was the governing law In the situation. After
quoting the above statute, the Court stated at page 301:
"From this It will be seen that
every type of office in the State
Is covered In general terms. While
the term 'school trustee’ is not
used, the terms 'State', 'countyl,
'precinct' and tmunlclpal office'
are used. We think the term 'pre-
clnct' Is used In a general sense
to include all political units within
the county, except municipal, that
are less than county-wide in area.
The evident purpose of the statute
Is to require representation of a
political unit by one who Is elected
who resides In the unit which he Is
to serve. It is true that it does
not deal specifically with removal
from office upon cessation of resi-
dence once a person has been elected,
but it would in effect be meaning-
less if it is Interpreted as tiestric-
tive only of residence at the time
of election and qualification. If
it Is so restricted, a person could
be elected and qualjpyand then move
out of the political unit and yet
continue to act in an official capa-
city when he is no longer affected
by the acts he performs. A statute
should be liberally construed to
effect the Intention of the legis-
lature. It has ever been traditional
with Texas to require representation
be elective officers who are resi-
dents of the political unit for which
the elected officer acts.
"We therefore, hold that when a
school trustee permanently becomes
a non-resident of the school dls-
trlct he was elected to serve, he
vacates his office."
Honorable Wm. L. Ferguson,‘page 3 Opinion No. WW-1387
On Motion for Rehearing, the Court modified its use of
the word “vacate” as used in last sentence quoted above, and
stated at page 303:
“Under Article 1.05 of the Elec-
tion Code a school trustee becomes
lneligible.to continue to serve,
upon proper attack, when he becomes
a permanent non-resident of the dls-
trict. We feel our use of the term
‘vacate’ in our original opinion was
perhaps too broad. We think the
correct term is ~inellglble.~ There
Is nothing In the statute providing
that an office will automatically
become vacant when a person becomes
InelIgIble. . . .‘I
At page 304 the Court said:
“It was admitted that appellees
had been duly elected or appointed
to office, had qualified and were
acting as trustees. They were,
therefore, de facto officers and
the action to question their ellgl-
billty to continue to serve Is by
quo warrant0 proceedings.”
If a person Is not eligible to be elected to serve as
school trustee unless he has been an actual bona fide citizen
for six (6) months next preceding his election, then an ap-
pointee who fills a vacancy on a school board must possess the
same qualifications for that office as one who is elected, and
must have been an actual bona fide citizen of such school dis-
trict for SIX (6) months next preceding his appointment. We
could paraphrase what was said above In the Whltmarsh case,
and say: It Is true that Art. 1.05, Election Code does not
deal specifically with the residence qualifications of one who
is appointed to fill a vacancy, but the article would In effect
be meaningless if It is interpreted as restrictive only of resl-
dence qualifications for those who are elected as school trustees.
We hold therefore, that a person who has not resided in the school
district for six (6) months or more Is not eligible for appoint-
ment as school trustee to fill a vacancy.
Honorable Wm L. Ferguson, page 4 Opinion No. ~~-1387 *
SUMMARY
A person who has not resided in the school
district for six (6) months or more Is not ell-
gible for appointment as a school trustee to
fill a vacancy on the Board of Trustees of ar
Independent school district.
Yours very truly,
WILL WILSON
Attorney Qeneral of Texas
Riley Eugene Fletcher
Assistant
REF:rk
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Robert Lewis
W. 0. Shultz
Colemen Gay
REVIEWEDFOR THE ATTORNEYGENERAL
BY: Leonard Passmore
Untitled Texas Attorney General Opinion
Combined Opinion