Honorable J. W. Edgar Opinion No. M-402 

Commissioner of Education 

201 East 11th Street Re: Whether a person who is not 

Austin, Texas 78711 a registered voter can be a 

candidate for or appointed 

to the office of school 

Dear Dr. Edgar: 

trustee, and related questions. 

You have requested the opinion of this office upon 

questions which arise out of the election of trustees for the 

Spring Creek Independent School District held on the first 

Saturday of April, 1969. 

Your letter states that three trustees were to be 

elected and that one week prior to the date of the trustee 

election it was discovered that two of the four persons who 

had filed as candidates were not registered voters. However, 

since the ballots were already prfnted and absentee voting 

was In progress, the ballots were not changed and were used 

on the day of the election. The three persons receiving the 

highest number of votes were the two candidates who were 

registered voters and an Incumbent trustee who had not registered to vote. You have predicated the following questions 

upon these facts. 

"1, Does Article 2776a operate to prohfblt 

a candidate in an election for the offlce of 

school trustee who is not a registered voter at 

the time of his election to qualify for the 

office? 

"2. Does Article 2776a and/or the cited 

Election Code provisions /-Articles 1.05 and 1.067 

operate to prohibit appof?itment of a person, whoIs not a qualffled voter, to fill a vacancy on 

a school district board? 

“3. Would Section 17 of Article XVI, Constltutlqn of Texas, operate to permit the lncumbent sohool trustee candidate for reelection, 

-1991- 
Koni J. w. Edgar, page 2 (M-402) 

who was not a qualified voter at 1969 election 

time, to serve the new term as holdover trustee 

where the local board does not appoint a fully 

qualified voter to fill the vacancy; or 

'Does the factual situation require the 

school district board acting pursuant to Article 

2777-l to fill the vacancy by appointment of a 

person otherwise qualified and who Is a registered 

voter?" 

Article 1.05, Texas Election Code, provides that no 

person shall be eligible as a candidate for, 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 further provides that no lnellglble candidate shall be voted upon or have votes counted for him at 

any election, but that votes cast for an lnellglble candidate 

shall be taken Into account In determining whether any other 

candidate receives the vote necessary for nomination or election. 

Article 1.06, Texas Election Code, prohibits the 

Issuance of a certificate of election or appointment to any 

person who Is Ineligible to hold the particular office under 

the Constitution or statutes of this State. 

The Leglsl&ure has specified in 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 

qualified voter." The term "qualffled voter," as used in this 

statute, means that one must be a registered voter 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 appointment to the office 

of school trustee, such person must be a registered voter 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 Incumbent member of the board of trustees. Under the 

provisions of Article 2777, Vernon's Civil Statutes, the term 

of this trustee expired on the day the election in question 

was held. Since he Is InelIgIble to 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 statute which 

empowers some person,or body of persons to fill vacancies In 

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 vacancy by appointment 

of someone who Is eligible. 

Section 17 of Article XVI of the Constitution of Texas 

specifically provides for an Incumbent officer to continue to 

perform the duties of his office until his successor has qualifled. One who holds over after his term of office has expired 

holds the office by sufferance and has no right or Interest In 

the office itself, but functions to 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 trustee who was lnellglble 

for re-election Is 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 possession of 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 vacancy by appointment. We find nothing which 

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 office untfl the 

vacancy Is filled by appointment of the board or a successor 

Is elected at a subsequent election. 

SUMMARY 

A person who Is not a reglstered voter Is 

ineligible to be elected or appofnted to the 

office of trustee of an Independent school 

district. Art. 2776a, V.C.S.,; Attorney Qeneral's Opinion n-397 (1969). 

Where an Incumbent trustee who Is not a 

registered voter 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 

appointment of the board of trustees pursuant 

to Article 2777-1, V.C.S. However, until the 

board of trustees fills the vacancy by 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 

Prepared by W. 0. Shultz 

Assistant Attorney Oeneral 

APPROVED: 

OPINION COM#lITTEB 

Kerns Taylor, Chairman 

George Kelton, Vice-Chairman 

James Quick 

Jack Sparks 

David Longorla 

Michael Stork 

HAWTHORNN PHILLIPS 

Executive Assistant 

W. V. GIEPPBRT 

Staff Legal Assistant 

- 1994 -