Honorable S. B. Buchanan, Jr. Opinion No. O-4106
.County Attorney
Val Verde County Re: Vacancies in office of county
Del Rio, Texas school trustee.
Dear Sir:
We have received your letter of recent date, which we quote
in part as follows:
“Is a County Board of Trustees appointed by the
zemaining members of the board itself and the Commis.-
sioners’ Court of the county a legally constituted and
existing board ?
tWhat is the status of a member of the board whose
term has expire,d but for whom no successor has been
.elected or named ?”
In your letter you give us the following information as reflected
by the minutes of the County Board of Trustees, dated August 8, 1940:
Complete minutes and records of the County School Board had
not been kept for a period of several years, as a result of which it could
not be determined which of the five trustees was the trustee at large.
Neither could the terms of office of the several trustees be ascertained.
Thereupon, it was determined that each member would resign and the
other members remaining on the Board after each resignation would ap-
point the one resigning to fill the’ vacancy created by his own resignation.
Each of the members then resigned and was so appointed except one who
had moved out of the Commissioners’ Precinct from which he was elected.
The Commissioners’ Court then undertook to legalize the membership of
the County Board of Trustee,s by reappointing the four members who were
appointed by the Board after the resignation and by appointing a person to
fill the vacancy created by the resignation of the member who moved out
of the precinct. Lots we’re then drawn to determine the terms for which
the members would serve, the results of which were as follows: The
trustees from Commissioners’ Precincts 1 and 4 would serve until
April 8, 1941. and the trustees from Commissioners’ Precincts 2 and 3
. .
Honorable 5. B. Buchanan, Jr., Page 2 (o-4106)
and the trustee at large would serve until April 8. 1942. No election was
held for the county trustee of Commissioners’ Precinct l’in April, 1941;
however, in Commksioners’ Precmct 4 eleven votes were cast at the
voting place of one common school. district for the same person appointed
by the Commissioners’ Court to fill the place left by the trustee who moved
out of the precinct.
Articles 2676, 2677, 2686 and 27,29a, Vernon’s Annotated Civil
Statutes, provides as follows:
“Art. 2676. The general management and control of
the public free schools and high schools in each county,
unless otherwise provided by law shall be vested in five
(5) county school trustees elected from the county, one of
whom shall be elected from the county at large by the qual-
ified voters of the common .and consolidated independent
school districts of the county, and one from each Commis-
sioners’ Precinct by the qualified voters of each’Commis-
sione.rs’ Precinct; who Shall hold office for a term of tGo
years. The time for such election shall be the first Satur-
day in April of each year; the order for the election of
county.school trustees to be made by the county judge at
.
least thirty days prior to the date of satd election, and such
order shall.designate one voting place for each~common
school district. The election officer appointed to hold the
election .for trustees in: each common school district shall
hold the election at the same place therein for the county .’
school trustees. Each year there shall be elected alternately
two (2) county school trustees and three (3) county school
trustees in each county. The State Superintendent shall pre-
pare a proper form of the ballot to be used in such election
and such other explanation of the laws as he deems necessary,
and transmit the same to the county judge of each county at
least sixty days, prior to the date ‘of such election. All vacan-
cies shall be filled by the remaining trustees. All elections
heretofore held in accordance with the foregoing provisions
of this section are hereby in all things validated and all
trustees so elected shall continue to hold office until the
expiration of the term for which they were originally elected.
“All laws and parts of laws in conflict herewith shall be
and the same are hereby’repealed.”
.
Honorable S. B. Buchanan, Jr., Page 3 (o-4106)
“Art. 2677. The county school trustees shall be qualified
voters of the precinct or county from which they are elected,
and four of them shall reside in different commissioners pre-
cincts. They shall be of good moral character, able to read
and speak the English language, shall be persons of good edu-
cation, and shall be in sympathy with public free schools. The
returns of their election shall be made to the county clerk
within five days after such election shall have been held, to
be delivered by him to the commissioners court at its first
meeting thereafter to be canvassed and the results declared
as in cases of other elections. The county clerk shall issue
to said trustees their commi.ssions and impress thereon the
seal of the said court after they have taken the official oath
and filed same with said clerk.”
“Art. 2684. At the regular meeting in May, the county
trustees shall elect one of their number president; and three
trustees shall be a quorum to transact business, and all ques-
tions shall be decided by majority vote. The secretary shall
keep a true and correct record of all the proceedings of said
county school trustees in a well bound book, which shall be
open to public inspection. He shall keep an accurate record
of the term of office of each common school district and county
school trustee, and shall furnish the county judge at least sixty
days prior to the data of their election the number of trustees
to be elected in each district or precinct or in the county at
large.”
“Art.. 2729a. In any organized county of this State not
having heretofore elected or appointed a county board of trus-
tees, the Commissioners’ Court of said county is hereby auth-
orized to appoint a c~ounty board of trustees for said county,
the residence of whose members conform to the provisions of
the general law relating to the election of county trustees.
“And the said board of county school trustees when ap-
pointed shall have and exercise all the rights and powers con-
ferred upon county boards of trustees by the provisions of the
general law; provided also that the county board may create
one or more school districts in any unorganized county attached
to said organized county for judicial purposes and provide for
the organization of schools therein by the appointment of trustee~s
. .
Honorable S. B. Buchanan, Jr., Page 4 (o-4106)
for the said districts. The county school trustees of any
organized county are authorized to exercise the authority
heretofore vested in the Commissioners’ Court with re-
spect to subdividing the county into school districts and
making changes in school district lines.”
Each of the resignations except that of the trustee from Precinct
4 was based on the consideration that the remaining members would appoint
the resigner to fill the vacancy which would be created by his own resigna-
tion. In McCall v. Whaley, 115 SW. 658, the court made the following state-
ment:
“It is contrary to pub1i.c policy, and therefore unlawful,
for persons to traffic in official positi.ons; and therefore an
agreement to resign an offi.ce or exert efforts to procure an
office for another for a consideration is unlawful and not
enforceable.”
But we do have to decide whether #is is the type of consideration
which .it condemned by the McCall case. It might be argued that it is; that,
therefore, the agreement and the resignation would be unlawful; and that the
resignation was never effective as such. But whether it was or notwould
make no difference as far as the result is concerned. A re-appointed trus-
tee could claim no-rights greater than that which he had before resignation;
he would nec.essarily be appointed for the unexpired portion of his term.
You are respectfully advised, therefore, that each of the “re-
appointed” county school trustees by continuing to perform the duties of his
office occupied the same status subsequ.ent to his resignation, whether it
was an effective resignation or aot, as he did pri.or thereto, to the extent
at least of being de facto officers. See 34 Tex. Jur. 614-620.
The action of the commissioners’ court was a nullity. It is pre-
sumed that they undertook to act under Article 2729a, but the terms of the
statute patently show that even if the resignations had been valid in every
respect it still would not be applicable. You will notice that part of Article
2729a which provides that ‘in any organized county of this State not having
heretofore elected or app,ointed a county board of trustees, the commissioners’
court of said county i.s hereby authorized to appoint a county board of trustees
. . . * (Emphasis supplied). This statute is obviou.sly inapplicable for the
reason that Val Verde County -had ‘heretofore elected or appointed a county
board of trustees.”
. .
Honorable S. B. Buchanan, Jr., Page 5 (o-4106)
The case of Clark v. Wornell, 65 S.W.2d 350, involved the
construction of two provisions of Article 2774a, Section 4, V.A.C~.S,.,
which read:
“Should any rural high school district fail to elect a
trustee or trustees as provided for in this act, the county
board of trustees shall appoint said trustee or trustees:,”
and
“The members of the board remaining after a vacancy
shall fill the same for the unexpired term.”
Both the school board and the county board, claimed the right to
fill a vacancy existing in the school board. Justice Alexander, speaking
for the court. made the following state.ment:
(L. . . Until such board had been properly. create,d, it
was necessary to provide for the filling of vacancies there-
in by some outside agency. The act places this responsibility
with the county school board. After the first board of the
newly created district had once been properly created,~there
would be no need for an outside agency to fill vacancies there-
in. Such vacancies could be filled by the remaining members
oft.the board. and hence the act provided that: ‘The members.,
of the board remaining after a vacancy shall fill the same for
the unexpired term.’
‘?Under the well-established rule in this state, ~upon,a
failure of the district to elect a successor to Simmons at the
regular election held for that purpose, there was a ‘vacancy’
in said office within the meaning of the last above quoted pro:
vision of said act.~ Tom v. Klepper (Tex.Civ.App.) 172 SW.
721; Maddox TV.York, 21 Tex.Civ.App. 622, 54 S.W.~24; Dob-,
kins V. State ex rel. Reece (Tex.Civ.App.) 19 S.W.2d 574.”
Thus, in the situation at hand, the commissioners’ court under
Article 2729a appoints the membe,rs of the county board,of trustees in an
organized county not having heretofore elected or appointed a county board
of trustees, but after such appointment or in c,ounties hairing.heretofore
,eIected or appointed a county board, vacancies in the county~boerd are to
be filled by the remaining trustees by virtue of that pait of Article 2676 which
reads: ‘All vacancies shall be fil.led by the remaining trustees.,”
. .
Honorable S. B. Buchanan, Jr., Page 6 (o-4106)
The drawing of .lots was likewise ineffective, for the members of
the county board were elected for a fixed term. Moreover, a person ap-
pointed to fill a vacancy in the county board would hold office for the unex-
pired portion of the rterm. It is the duty of the county superintendent as
secretary of the county board to keep an accurate record of the term of
office of each county school trustee, and the importance of keeping full
minutes and records of the meetings and actions of the county board cannot
be overemphasized. You state that complete minutes have not been kept;
yet, it should not be difficult to ascertain the terms of office for which the
several board members were elected by an examination, first, of the records
which the board does have and, second, of the past election proceedings in
the office of the county clerk. At any event, this responsibility rests with’
the county board and the county superintendent, not with this department.
The remainder of this opinion must necessarily be written in
generalizations since we do not have full facts before us and since we do
not know the terms of office of the several county trustees.
Article 2676 designates the first Saturday in April as the date of
election of the county school trustees. If no election is held and the trustee
whose term expired continues to act as such he is a “holdover” officer with
all the powe.rs incident to his office. See Article XVI, Section 17. Constitu-
tion of Texas;‘State, ex rel. Glenn. et al v. Jordan, 28 S.W.2d 921 (1930,
W-E. Ref.). This prevents a vacancy in the sense that there is no inc~umbent
to hold the office, but there is a vacancy for the purpose of naming the in-
cumbent’s successor. State V. Jordan, supra; 34 Tex. Jur. 372.
An incumbent State or county officer must continue to perform the
duties of his office until his successor qualifies. This is true even when
the incumbent is elected his own successor. Article XVI, Section 17, Consti-
tution of Texas; State v. Jordan, supra. A county school trustee is a county
officer. Opinion No. O-798.
Article 2676 requires that the county judge order the election for
county school trustees and that “such order shall designate one voting place
for each common school district.” The article further states that the elec-
tion officer appointed to hold the election for trustees in each common school
district shall hold the election at the same place therein for the county school
trustees.
Provisions regulating the time and place of elections are usually
regarded as mandatory. Gray v. Ingleside Ind. Sch. Dist. (W.R. Dismd.),
220 S.W. 350. However, a failure to comply with statutory provisions not
Honorable S. B. Buchanan, Jr., Page 7 (o-4106)
essential to securing a fair expression of the popular will should not void
an election. Davis v. State ex. rel. Wren, 12 S.W. 957.
This is as far as we can go because of lack of the necessary facts
to pass adequately and accurately on all the specific situations presented in
your letter of request. However, we believe that the principles announced
herein will aid you in ascertaining answers to the questions in which you
are interested.
Very truly yours
ATTORNEY GENERAL OF TEXAS
By /s/ George W. Sparks
George W. Sparks
Assistant
GWS:LM:tiw
APPROVED DEC. 9. 1941
/s/ Grover Sellers
FIRST ASSISTANT ATTORNEY GENERAL
APPROVED OPINION GOMMITTEE
By /s/ BWB. Chairman
OK - GRL
Untitled Texas Attorney General Opinion
Combined Opinion