May 19, 1969

Honorable J. W. Edgar Commissionerof Education OpinionNo. M-397 201 East 11th Street Austin, Texas 78711

Dear Dr. Edgar: Re: Whether a candidatewho received the highest number of votes at fanindependent schooldistrict trustee electionmay 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 accordancewith applicable statutes, three trustees were to be elected to take the place of threemembers of the board of trusteeswhose terms of office expired upon that date. Ordinarily the three candidatesreceiving the highest number of voteswould 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 circumstancesyou have asked the following questions:

"(1) Legally,may the candidatewho 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 qualifiedand 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 unlesshe be eligible to hold such office under the Constitutionand laws of this State. This article furtherprovides that no ineligiblecandidate shallbe votedupon or have votes counted for him at any election,but that votes cast for an ineligiblecandidate shall be taken into account In determiningwhether any other candidate receives the vote necessary for nomination or election.

Article 1.06, Texas Election Code, prohibitsanyone from Issuinga certificate of election or appointment to any personwho is Ineligibleto hold the particular office under the Constitution or statutes of this State.

The answer to your first question is dependentupon whether the person in question Is eligible to be elected or appointed to the office of trustee of a schooldistrict.

Article 2776a, Vernon's Civil Statutes,provides that 'noperson shallbe elected as a trustee of a sch$ol district in this State unless he is a qualifiedvoter. The term "qualifiedvoter," as used in this statute, means that a personmust be a registered voter in order to be eligible for the office of trustee of a schooldistrict. Oser v. Cullen, 435 S.W.2d 896 (Tex.Civ.App. 1968, error dism. w.0.j.). The Oser case furtherholds that there is no constitutionalprxion which prohibits the Legislature from imposing this requirementas a condition for eligibility to the office of trustee of a schooldistrict.

You are thereforeadvised that, In our opinion,a personwho is not a registered voter is not eligible to qualify and serve as trustee of a schooldistrict even thoughhemay 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 statewhether therewere more than three persons voted upon at the election in question; however, assuming that there were, the ineligibility of one of the threepersons receiving the highest number of votes does not result In the Inclusion of the person receiving~the fourthhighest votes among those to be declared elected to the three trustee positions. The votes for the ineligiblecandidate must be taken into account in determiningwhich candidatesreceived the vote necessary for election, l-e, the three persons receiving the highest vote, Ineligibility of one of such personsdoes 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'iSv. 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 officehas ended and there has been a failure to elect someone to fill the office, a vacancy In such office existswithin themeaning 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:
'Inall independent schooldistricts In the state,regardless of the number of scholastics enrolled, If a vacancv occurs In the board of trustees, theremz.ining members of the board of trustees shall fill tne vacancyuntil 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 questionand themembers of the board of trustees of the district are empowered to fill the vacancyby appointing someonewho meets the conditions of eligibility for such office, including that of being a registered voter. SUMMARY

A personwho Is not a registered voter is not eligible for the office of trustee of a schooldistrict andmay 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 vacancyby appointing one who is eligible to hold the office.

C. MARTIN y General of Texas -1974-._

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

Preparedby W. 0. Shultz AssistantAttorney General
APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman George Kelton,Vice-Chairman Sam McDaniel Ralph Rash NeilWilliams Terry Goodman
W. V. GEPPERT Staff Legal Assistant
HAWTHORNE PHILLIPS Executive Assistant

-1975-