May 19, 1969 

Honorable J. W. Edgar 

Commissioner of Education 

Opinion No. M-397 

201 East 11th Street 

Austin, Texas 78711 

Dear Dr. Edgar: 

Re: Whether a candidate who received the highest number 

of votes at fan independent 

school district trustee 

election may qualify and 

serve as trustee If he was 

not a registered voter, and 

related question. 

Your recent letter to this office requests our opinion 

upon two questions related to the election of trustees of Honey 

Grove Independent School District held on the first Saturday 

in April of 1969. 

In accordance with applicable statutes, three trustees 

were to be elected to take the place of three members of the 

board of trustees whose terms of office expired upon that date. 

Ordinarily the three candidates receiving the highest number 

of votes would be declared elected; however, the candidate 

who received the highest number of votes does not have a 

Voter Registration Certificate for the year 1969. Under 

these circumstances you have asked the following questions: 

"(1) Legally, may the candidate who received the highest number of votes qualify and 

serve as a trustee of the school district? 

"(2) If (1) Is answered In the negative: 

Shall the school district board recognize the 

existence of a vacancy, and fill same by appolntment thereto of a'person otherwise qualified and 

who Is a qualified voter, pursuant to Article 

2777 -11” 

Article 1.05, Texas Election Code, provides that 

no person can be a candidate for , or be elected or appointed 

-1972- 
Hon. J. W. Edgar, page 2 (M-397) 

to, any public office in this State unless he be eligible to 

hold such office under the Constitution and laws of this State. 

This article further provides that no ineligible candidate 

shall be voted upon or have votes counted for him at any election, but that votes cast for an ineligible 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 anyone 

from Issuing 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 answer to your first question is dependent upon 

whether the person in question Is eligible to be elected or 

appointed to the office of trustee of a school district. 

Article 2776a, Vernon's Civil Statutes, provides 

that 'no person shall be elected as a trustee of a sch$ol 

district in this State unless he is a qualified voter. 

The term "qualified voter," as used in this statute, means 

that a person must be a registered voter in order to be 

eligible for the office of trustee of a school district. 

Oser v. Cullen, 435 S.W.2d 896 (Tex.Civ.App. 1968, error 

dism. w.0.j.). The Oser case further holds that there is 

no constitutional prxion which prohibits the Legislature 

from imposing this requirement as a condition for eligibility 

to the office of trustee of a school district. 

You are therefore advised that, In our opinion, a 

person who is not a registered voter is not eligible to qualify 

and serve as trustee of a school district even though he may 

receive the highest number of votes cast at a regular school 

trustee election. Your first question is answered in the negative. 

Your letter does not state whether there were more 

than three persons voted upon at the election in question; 

however, assuming that there were, the ineligibility of one 

of the three persons receiving the highest number of votes 

does not result In the Inclusion of the person receiving~the 

fourth highest votes among those to be declared elected to the 

three trustee positions. The votes for the ineligible candidate 

must be taken into account in determining which candidates received the vote necessary for election, l-e, the three persons 

receiving the highest vote, Ineligibility of one of such persons does not result in the election of one receiving the next 

-1973- 
Hon. J. W. Edgar, page 3 (M-397) 

highest vote. Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.W 

979 (1947); DaV'iS v. Stiff, 284 S.W.2d 799 (Tex.Clv.App. 

1955, no writ). 

Passing to your second question, It is a settled 

rule In this State that where a term of office has ended and 

there has been a failure to elect someone to fill the office, 

a vacancy In such office exists within the meaning of a statute 

which empowers some person or body of persons to fill vacancies 

in such office by appointment. Tom v.~Klepper, 172 S.W. 721 

(Tex.Civ.App. 1915, error ref.); Clark v. Wornell, 65 S.W.2d 

350 (Tex.Clv.App. 1933, no writ). 

part 

Article 2777-1, Vernon's Civil Statutes, reads in 

as follows: 

'In all independent school districts In 

the state, regardless of the number of scholastics 

enrolled, If a vacancv occurs In the board of 

trustees, the remz.ining members of the board of 

trustees shall fill tne vacancy until the next 

regular election for members of the board of 

trustees. . . .' 

In our opinion a vacancy exists in the office of 

school trustee in the district in question and the members 

of the board of trustees of the district are empowered to 

fill the vacancy by appointing someone who meets the conditions 

of eligibility for such office, including that of being a 

registered voter. 

SUMMARY 

A person who Is not a registered voter is 

not eligible for the office of trustee of a 

school district and may not qualify and serve 

as trustee even though he received the highest 

number of votes at the regular school trustee. 

election; under such circumstances, a vacancy 

exists In the office of trustee and the board 

is empowered to fill the vacancy by appointing 

one who is eligible to hold the office. 

C. MARTIN 

y General of Texas 

-1974- 
._ 

Hon. J. W. Edgar, page 4 (M-397) 

Prepared by W. 0. Shultz 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

George Kelton, Vice-Chairman 

Sam McDaniel 

Ralph Rash 

Neil Williams 

Terry Goodman 

W. V. GEPPERT 

Staff Legal Assistant 

HAWTHORNE PHILLIPS 

Executive Assistant 

-1975-