Honorable T. M. Trimble 

first Assistant 

State Superintendent of Public Instruction 

Austin, Texas 

Dear Sir: gpeinion No. O-6259 

: Whether holdover school 

trustee is authorized to 

vote in selecting his 

successor and related 

matter. 

Your request for opinion upon matters related to you by the 

Superintendent of Public Schools of Pairfield, Texas, has 

been received and carefully considered. ive quote from the 

Superintendent's letter to'you as follows:. 

"I would like for you to get the Attorney General's ruling on 

the following two questions: If a trustee is duly elected 

by popular vote and refuses to-qualify the outgoing trustee 

holds over until his successor is duly qualified, does this 

holdover trustee have the power to vote in selecting his 

successor or does he hold over until the next annual election 

in April? What difference will a half-uncle make, if a 

person Is half-niece by marriage or affinity? In this case, 

the trustee is a half-uncle-by marriage. He sis.the president 

of the School Board and has to sign the pay checks. This 

person would be disqualified if they were a full niece by 

affinity but I do not know what difference this would make 

In the case of this teacher." 

We assume that your question relates to an independent school 

district and will consider it on that basis. 

Article 2777, Vernon's Annotated Texas Civil Statutes, 

applicable to independent school districts, reads as follows: 

"The seven candidates receiving the largest number of votes 

at the first election, and the three or four candidates receiving the largest number of votes at all subsequent elections, 

shall be entitled to serve as trustees hereunder. Those elected 

at the first election shall determine by lot the term for woich 

they are to serve. The four members drawing the numbers one, 
-_. . 

Hon. T. M. Trimble - Page 2, o-6259 

two, three and four shall serve for one year, and the three 

members drawing the numbers five, six and seven shall serve 

two years, or until the second of April theresfter, and until 

the.ir successors are elected and qualified; and regularly 

thereafter on the first Saturday in April of each year, four 

trustees and three trustees, alternately, shall be elected for 

a term of two years, to succeed the trustees whose term shall 

at that time expire. The membars of the board remainlna after 

a vacancy shall fill the same for the unexpired term. Id.” 

(Underscorihg ours). 

Article 16, Section 17, Constitution of Texas, provides: 

“All officers within this state shall continue to perform the 

duties of their offices until their successors shall be duly 

qualified.” 

Although it has been held that under the above quoted constltutional provision an officer who holds over until his successor 

is dul 

278 s. j: 

qualified, Is a de jure officer. 

283; state v. Jordan, 28’S.ri. (2) 

(Cowan v. Capps, 

. 921) It has been 

held that the failure to ‘elect a successor constitutes a 

“vacancy” in said office within th,“,;;;nlvng of a statute providin for filling of a vacancy. 

(2) 320. 

. Wornell, 65 S.W. 

Undoubted1 y we think the same rule would apply where 

a trustee WE9 elected but failed to qualify within the time 

allowed by law. 

The holdover trustee’s term of office has already expired - 

he is merely holding,over until his successor duly qualifies. 

The failure of the person elected to qualify within the time 

allowed by law constitutes a “vrcancy” (for appointive purposes) 

in the office of trustee. Although the holdover trustee is a 

de jure officer capable of transacting business pending the 

time his successor is appointed and qualifted, it is our 

opinion that he would not be considered “a member of the board 

remaining after a vacancy ” for the purpose of appointing his 

successor, de call particular attention to the language quoted 

above from Article 2777. It does not provide that the “board 

of trustees” shall fill such v acancy but that “the members 

of the board remaining” shall fill the vacancy. We are supsorted 

in this holding by authorities cited’in’Opinlon No. o-761 of 

this department, a copy of which Is enclosed herewith. The holdover trustee will hold over until his successor ClUSlifiSS. 

Answering your second question, it Is our opinion that the 

relationship between the trustee and teacher (half-uncle and 

half-niece, respectively, by affinity) comes within the degree 

(second degree) prohibited by our anti-nepotism laws. See 
Hon. T. M. Trlmble - Page .3, o-6259 

authorities cited in Opinion No. 0-3016 of this department, 

a copy of which is enclosed herewith. 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

s/ Wm. J. E'annkg 

Wm. J. Fanning 

Assistant 

WJF:BT/cg 

A?lROVELl hlAY 5, 1945 

s/ Grover Sellers 

ATTORNEY GENERAL OF TEXAS 

Approved Opinion Committee 

By BWB, Chairman