HonorableJ. W. Edgar OpinionNo. M-402

Commissionerof Education 201 East 11th Street Re: Whether a person who is not Austin, Texas 78711 a registeredvoter can be a candidatefor or appointed to the office of school
Dear Dr. Edgar: trustee, and related questions.
You have requested the opinion of this office upon questionswhich arise out of the election of trustees for the Spring Creek IndependentSchool District held on the first Saturday of April, 1969.

Your letter states that three trusteeswere to be elected and that one week prior to the date of the trustee election it was discoveredthat two of the four personswho had filed as candidateswere not registeredvoters. However, since the ballotswere already prfnted and absentee voting was In progress, the ballotswere not changed and were used on the day of the election. The three persons receiving the highest number of votes were the two candidateswho were registeredvoters and an Incumbent trusteewho had not registered to vote. You have predicatedthe followingquestions upon these facts.

"1, Does Article 2776a operate to prohfblt a candidate in an election for the offlce of school trusteewho is not a registeredvoter at the time of his election to qualify for the office?
"2. Does Article 2776a and/or the cited Election Code provisions/-Articles1.05 and 1.067 operate to prohibit appof?itment of a person,whoIs not a qualffledvoter, to fill a vacancy on a school districtboard?
“3. Would Section 17 of Article XVI, Constltutlqnof Texas, operate to permit the lncumbent sohool trustee candidatefor reelection, -1991-Koni J. w. Edgar, page 2 (M-402)

who was not a qualifiedvoter at 1969 election time, to serve the new term as holdover trustee where the local board does not appoint a fully qualifiedvoter to fill the vacancy;or
'Does the factual situationrequire the school districtboard acting pursuant to Article 2777-l to fill the vacancyby appointmentof a person otherwisequalifiedand who Is a registered voter?" Article 1.05, Texas Election Code, provides that no person shall be eligible as a candidatefor, or be elected or appointed to, any public office In this State unless he be eligible to hold such office under the Constitution and laws of this State. It furtherprovides that no lnellglblecandidate shall be voted upon or have votes counted for him at any election,but that votes cast for an lnellglblecandidate shall be taken Into account In determining whether any other candidatereceives the vote necessaryfor nominationor election. Article 1.06, Texas Election Code, prohibitsthe Issuance of a certificateof election or appointmentto any person who Is Ineligibleto hold the particularoffice under the Constitutionor statutesof this State.

The Leglsl&ure has specifiedin Article 2776a, Vernon's Civil Statutes, that "no person shall be elected as a trustee of a school district In this State unless he Is a qualifiedvoter." The term "qualffled voter," as used in this statute, means that one must be a registeredvoter In order to be eligible for election to the office of trustee of a school district. Oser v. Cullen, 435 S.W.2d 896 (Tex.Cfv. App. 1968, error d'ism. w,o.j.).
It Is clear, therefore,that in order for a person to be eligible for either election or appointmentto the office of school trustee, such person must be a registeredvoter at the time of the election or appointment. Attorney (leneral's Opinion M-397 (1969). We answer your ffrst two questions In the affirmative.

As you point out In your letter, the lnellglble person who received the third highest vote at the election la an Incumbentmember of the board of trustees. Under the provisionsof Article 2777, Vernon's Civil Statutes, the term of this trustee expired on the day the election in question was held. Since he Is InelIgIbleto be elected to the office -1992-. .

Hon. J. W. Edgar, page 3 (~-402)

In question, there Is a vacancy In such office that is subJect to being filled by appointment. Whenever a term of office has ended and there has been a failure to elect someone to fill the office, a vacancy exists within the meaning of a statutewhich empowers some person,orbody of persons to fill vacanciesIn such office by appo~lntment. Tom v. Klepper, 172 S.W. 721 (Tex. Clv.App. 1915, error ref.); Clark v. Wornell, 65 S.W.W 350 (Tex.Clv.App.

1933, no writ). Article 2777-1,Vernon's Civil Statutes,authorizes the members of the board of trustees of the Spring Creek Hndependent School District to fill the vacancyby appointment of someonewho Is eligible.

Section 17 of Article XVI of the Constitutionof Texas specifically

provides for an Incumbentofficer to continue to perform the duties of his office until his successorhas qualifled. One who holds over after his term of office has expired holds the office by sufferanceand has no right or Interest In the office itself,but functionsto subserve the public convenlence. r43. Tom v. Klepper, supra; 47 Tex.Jur.2d 64, 65, Public Officers

Therefore, in answer to your third question,you are advised that while the Incumbent trusteewho was lnellglble for re-electionIs entitled to hold over and function In the office of school trustee,he has no right or Interest In the office or the term of such office which began on the date of the election,other than to protect possessionof the office from an Intruder. As we have pofnted out above, a vacancy exists In this office and the board of trustees fs empowered to fill such vacancyby appointment. We find nothingwhich makes It mandatory that the board of trustees appoint someone to fill the existing vacancy. Consequently, the Incumbent trustee Is entitled to function fn such officeuntfl the vacancy Is filled by appointmentof the board or a successor Is elected at a subsequentelection.
SUMMARY
A person who Is not a reglsteredvoter Is ineligibleto be elected or appofnted to the office of trustee of an Independentschool district. Art. 2776a,V.C.S.,; AttorneyQeneral's Opinion n-397 (1969). Where an Incumbenttrusteewho Is not a registeredvoter recefves the number of votes -1993-Hon. J. W. Edgar, page 4 (M-402)

which would entitle him to be elected If he were not ineligible,a vacancy exists in that office which la subject to being filled by appointmentof the board of trusteespursuant to Article 2777-1,V.C.S. However,until the board of trustees fills the vacancyby appolntment or someone is elected to such office, the Incumbent Is entitled to continue to~functlon In the capacity of school trustee.

CRA C. MARTIN Att rney General of Texas Preparedby W. 0. Shultz AssistantAttorney Oeneral
APPROVED: OPINION COM#lITTEB
Kerns Taylor, Chairman George Kelton,Vice-Chairman James Quick Jack Sparks David Longorla Michael Stork
HAWTHORNN PHILLIPS ExecutiveAssistant
W. V. GIEPPBRT Staff Legal Assistant

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