E NEY GENERAL 

6F TEiXAS 

Honorable Joseph C. Ternus Opinion No. WW-1110 

County Attorney 

San Patrlclo County 

Sinton, Texas 

Re: Whether County School 

Trustees are elective 

county and precinct 

officers as used in 

Article XVI, Section 

Dear Mr. Ternus: 64 of the Constitution. 

We are in receipt of your letter In which you ask 

for an interpretation of Article 2676 of Vernon's civil 

Statutes, as amended by Acts of the 55th Legislature, 

Regular Session, 1957. In your letter you stated that 

it was your opinion that that portion of Article 2676 

which relates to the terms of office of a county school 

trustee, providing for terms of office of two years, is 

unconstitutional, being In conflict with Section 64 of 

Article XVI of the Texas Constitution. 

Section 64 of Article XVI of the Texas Constitution 

provides as follows: 

"The office of Inspector of Hides and 

Animals, the elective district, county and 

precinct offices which have heretofore had 

terms of two years, shall hereafter have 

terms of four years; and the holders of such 

offices shall serve until their successors 

are qualified." 

Article 2676 of Vernon's Civil Statutes states as 

follows: 

"Section 1. The general management and 

control of the public free schools and high 

schools in each county, unless otherwise provided by law shall be vested In five (5) county 

school trustees elected from the county, one (1) 
Honorable Joseph C. Ternus, page 2 (WW-1110) 

of whom shall be elected from the county 

at large by the qualified voters of the 

county and one (1) from each Commissioner’s 

Precinct bv the auallfied voters of each 

Commlaslon&~s Precinct, who shall hold~office for a term of two (2) years. The time 

for such election shall be the first Saturday 

in April of each year; the order for the election 

of county school trustees to be made by the 

county judge at least thirty (30) days prior to 

the date of said election, and which order shall 

designate as voting places within each common 

or independent school district the same voting 

place or places at which votes are cast for the 

District Trustees of said common and Independent 

school districts, respectively. The election 

officers appointed to hold the election for Dlstrlct Trustees in each of said school districts, 

respectively, shall hold this election for county 

school trustees. 

“Sec. 2. It shall be no valid objection 

that the voters of a Commissioner’s Precinct are 

required by the operation of this Act to cast 

their ballots at a polling place outside the 

Commissloner Is Precinct of their residence. 

“Sec. 3. Each year there shall be elected 

alternately two (2) county school trusteee and 

three (3) county school trustees In each county. 

All vacancies shall be filled by the remaining 

trustees. All elections heretofore held in accordance with the foregoing provisions of this 

Act are hereby In all things validated and all 

truateea so elected shall continue to hold office 

until the expiration of the term for which they 

were originally elected. ” (Emphasis added) 

There can be no question that a county school trustee 

Is holding a public office. In Volume 34, Texas Jurlsprudence at page 322, It Is said: 

“Many judicial definitions of a ‘public 

office’ are to be found In the reported case8 
I . 

Honorable Joseph C. Ternus, page 3 (WW-1110) 

. 

but they are substantially of the same Import. 

It is said to be a right to exercise a public 

function or employment and take the fees and 

emoluments belonging to It; ‘a public station 

or employment conferred by the appointment of 

government; ( and ‘the right, authority and duty 

created and conferred by law, by which, for a 

given period, either fixed by law, or enduring 

at the pleasure of the creating power, an lndividual Is invested with some portion of the sovereign functions of the government, to be exercised 

by him for the benefit of the public. I The lndividual so Invested is a public officer. He is a 

person who exercises some functions of the government - one who is commlasloned or authorized to 

perform any public duty. ” 

Also see Klmbrou Knox?. v. Burnett, 93 Tex. 301 

Johnson, 141 S.W.2d 696 

55 S.W. 120, 122 

(1900), and 

error ref. ) 

(Clv.App. 1940, 

Article 2683, Vernon’s Civil Statutes, and 37 Tex. Jur. 

930 refer to such trustee as being a coul;fty school trustee. 

It follows that holding a “public office In this capacity 

classifies such person as a county officer. 

At the Qeneral Election In November., 1954, the voters 

adopted Section 64 of Article XVI as part of the Texas Constitution, which, in effect, changed the terms of certain 

offices In Texas from two to four years. These offices included the Inspector of Hides and Animals, the elective district, county and precinct officers which theretofore had 

terms of two years. 

Prior to the amendment of Article 2676 by the Legislature In 1957, said Article provided that county school 

trustees were to hold this office for a term of two years 

and that elections were to be held each year, and that they 

shall be elected alternately, two county trustees and three 

county trustees. The Legislature In 1957 carried over into 

the amended statute this same term of office. This, In our 

opinion, was unconstitutional as it violated Section 64 of 

Article XVI of the Texas Constitution. 

The Legislature, In amending Article 2676, Vernon’s 

Civil Statutes (Acts 55th Legislature, 1957, ch. 473, p. 

1383) provided the following savings clause: 
. , 

Honorable Joseph C. Ternus, page 4 (Ww-1110) 

"If any provisiona 

pllcatlon the'eof to-any 

of this Act or the apperson or circumstances 

is held lnvalld, such lnvalldlty shall not affect 

other provisions or applications of the Act which 

can be given effect without the Invalid provision 

or application, and to this end the provisions of 

this Act are declared to be severable." 

The Supreme Court of Texas held in Jordan v. Crud&n&- 

ton, 149 Tex. 237, 231 S.W.2d 641 (1950), at page b46: 

"As a result of striking from the Act the 

three provisions above discussed, must the Act as 

a whole be condemned? We have concluded that 

that result does,not follow. The Act provides 

that 'If any Section, clause or part of this Act 

shall be held invalid, it Is hereby declared to 

be the Intention of the Legislature that the remainder thereof not held invalid shall remain in 

effect, and the validity of the remainder of this 

Act shall not be affected therebyaV Section 15. 

Since the above provisions of the Act violate manda- 

'tory and exclusive provisions of the Constitution, 

It is our duty to carry out the express Intent of 

the Legislature by substituting the constitutional 

provisions for the provisions of the Act which 

they condemn, with the result that jury trials In 

the court in question shall be had before juries 

of twelve men. Norman v. Giles, Tex.Sup., 219 

S.W.2d 678; Greene v. Robison, 117 Tex. 516, 8 S.W. 

2d 655. With those constitutional provisions read 

Into the Act it is our conclusion that It is a 

valid exercise of the legislative power; that is to 

say that none of the objections urged by the respondent is valid." 

Because of the above mentioned savings clause, together 

with the holding of the Supreme Court of Texas in the last 

cited case, It Is our opinion that only that portion of 

Article 2676, Vernon's Civil Statutes, which pro;Cl;;&l;or 

two year ,terms of office la unconstitutional. 

necessarily follow that these elections would be held every 

two years rather than every year, and the terms of office 

are four years rather than two. 
I . 

Honorable Joseph C. Ternus, page 5 @W-1110) 

SUMMARY 

That portion of Article 2676, Vernon's 

Civil Statutes, as amended, which provides that the term of office of a 

County School Trustee Is for two years, 

la unconstitutional as being in vlolation of Section 64 of Article XVI of 

the Texas Constitution. 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

LFP:am:zt 

Leon F. Pesek 

Assistant 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman * *. 

Virgil Pulllam 

L. P. Lollar 

Maston Courtney, 

Dudley McCalla 

RHVIHWHDFOR THE AT'IDRNHY GENERAL 

BY: Morgan Nesbitt