### GENERAL THE AYTORNEY

OF 7lrExAs

Aul3-xmw 11. TEXAS

WILL WILSON A’lTO- GENERAL. July 

### 18,1962

HonorableWm. L. Ferguson OpinionNo.

### WW-1387 County Attorney Rusk County Courthouse Re: Eligibility of a person to Henderson, Texas be appointed a school,trustee to fill a vacancy in such office,when such person has not resided In the school district for sixmonths Dear Mr. Ferguson: prior to such appointment.

You have asked the following question:

“Is a person eligible to hold office as a school trustee In an lndependent school district who has been appointedby the board to fill a vacancywhen this person has not resided in the school district for sixmonths prior to said appointment?”
Article 1.05, Texas Election Code, provides in part:

“No person shall be eligible to s State, county,?%GuifeFiZ clpal office in this shallbegible to hold office under 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

fferslmself as a can%d$e, which he o next preceding any general or special election, and shallhave been an actual 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 ~trusteeof th: Aldine-IndependentSchool District In Harris County to continue to serve on the Board of Trustees, after the area in which they residedwas de-annexed from the Aldlne IndependentHonorableWm. L. Ferguson, page 2 OpinionNo.

### WW-1387 *

School District and annexed to the Houston Independent School District. The Court of Civil Appealsheld 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 'schooltrustee’ is not used, the terms 'State', 'countyl, 'precinct'and tmunlclpaloffice' are used. We think the term 'preclnct' Is used In a general sense to include all politicalunits within the county, exceptmunicipal, that are less than county-wide in area. The evident purpose of the statute Is to require representationof a politicalunit by one who Is elected who resides In the unit which he Is to serve. It is true that it does not deal specificallywith removal from office upon cessation of residence once a personhas been elected, but it would in effect be meaningless if it is Interpretedas tiestrictive only of residence at the time of electionand qualification. If it Is so restricted,a person could be elected and qualjpy and thenmove out of the political unit and yet continue to act in an official capacity when he is no longer affected by the acts he performs. A statute should be liberally construed to effect the Intention of the legislature. It has ever been traditional with Texas to require representation be elective officerswho are residents of the politicalunit for which the elected officer acts.

"We therefore,hold that when a school trusteepermanentlybecomes a non-resident of the schooldlstrlcthe was elected to serve,he vacateshis office."HonorableWm. L. Ferguson,‘page 

### 3 OpinionNo. 

### WW-1387

On Motion for Rehearing, the Courtmodified its use of the word “vacate”as used in last sentencequoted above, and stated at page 303:

“UnderArticle 1.05 of the Election Code a school trusteebecomes lneligible.tocontinue to serve, upon proper attack, when he becomes a permanentnon-resident of the dlstrict. We feel our use of the term ‘vacate’in our original opinionwas perhaps too broad. We think the correct term is ~inellglble.~ There Is nothing In the statute providing that an officewill 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 officersand the action to question their ellglbillty 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 precedinghis election, then an appointeewho fills a vacancy on a school boardmust possess the same qualifications for that office as one who is elected, and must have been an actual bona fide citizen of such school district for SIX (6)months next precedinghis appointment. We could paraphrasewhat was said above In the Whltmarsh case, and say: It Is true that Art. 1.05, Election Code does not deal specificallywith the residence qualificationsof one who is appointed to fill a vacancy, but the articlewould In effect be meaningless if It is interpretedas restrictive only of resldence 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 appointment as school trustee to fill a vacancy.HonorableWm L. Ferguson, page 4 OpinionNo. 

### ~~-1387 *

SUMMARY

A personwho has not resided in the school district for six 

### (6)months or more Is not ellgible for appointmentas a school trustee to fill a vacancy on the Board of Trustees of ar Independent schooldistrict.

Yours very truly,

WILL WILSON AttorneyQeneral of Texas

Riley Eugene Fletcher Assistant
REF:rk

APPROVED:
OPINIONCOMMITTEE W. V. Geppert, Chairman
Robert Lewis W. 0. Shultz Colemen Gay
REVIEWEDFOR THE ATTORNEYGENERAL BY: Leonard Passmore