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. ivequote 

### fromthe 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 atrustee 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? Whatdifference will ahalf-uncle make,if a person Is half-niece by marriage or affinity? In this case, the trustee is ahalf-uncle-by marriage. Hesis.the president of the School Board andhas to sign the pay checks. This person would be disqualified if they 

### wereafull niece by affinity but I donot knowwhat difference this would make In the case of this teacher." Weassume that 

### yourquestion relates to an independent school district andwill consider it on that basis. Article 2777, Vernon's Annotated Texas Civil Statutes, applicable to independent school districts, reads as follows: "The seven candidates 

### receivingthe 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, 

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two, three and four shall 

### servefor one year, andthe three members drawing the numbers five, six and seven shall serve twoyears, 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 samefor 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 anofficer whoholds 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 astatute providin for filling of avacancy. (2) 320. . Wornell, 

### 65S.W.

Undoubted1ywethink the samerule 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 

### successoris appointed and qualifted, it is our opinion that he would not be considered “a memberof the board remaining after avacancy ” 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 vacancy but that “the members of the board remaining” shall fill the vacancy. Weare supsorted in this holding by authorities cited’in’Opinlon No. o-761 of this department, acopy 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. SeeHon. T. M. Trlmble - Page .3, 

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authorities cited in Opinion No. 0-3016 of this department, a copy of which is enclosed herewith. Yours very truly ATTORNEY

GENERAL

OFTEXAS s/ Wm.J. E'annkg

Wm.J. Fanning Assistant WJF:BT/cg A?lROVELlhlAY5, 

### 1945 s/ Grover Sellers ATTORNEY

GENERAL

OFTEXAS Approved Opinion Committee ByBWB,Chairman