OFFICE OFTHE ATTORNEY GENERALOF TEXAS 

AUSTIN 

LRY 16, 1639 

t:onorabia '2. &. 'I'rinble 

Plrfit Assistant ltate Su:erintecCent 

hlatln * hxns 

Cesr Sir: 

%I tire in reoslpt or y 

you request the. opinion OS tb 

mlttui by L. 8. Qriffln, C 

hl8 letter rhioh 309 bare 

The taet8 u 

olosed by hts letter 

al% e.ubttantially &II 

was 00oapo6d or E 

the0 bad it 

.tbe notion t a serentb mea&m. 

h%m~ thla first uioatfng; broke U&I, &OWOV8r, it wan o@~nsQ 

that there would bs another msetlngthe mst alght TOT the purpoas 

of Pilling the vaoanoy and in dw aotiraa of tine all 8%~ of the 

aembere: who bEl& not at that tlraa tea4omd rselgnutlomwers notffibd 

Of the asetin& aEd its PUrgOW!, Eniors tbe tm&l.ng aoavensd, however, 
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. 

.:,. 

2on. T. x. TrImble, Xay 18,. 1939, Page 2 . 

three of the roEalnlhS six embers presented writton roslgnatlona 

to the 4x offlclo seoretary of the school board. At the regularly 

appoIntod tixe and plaae cnly the three ?-Lzbers of tha board who 

bad not tendarad reslguatlon were present. The three additional 

resignations et this tIn4 were browbt up nnd upon notion duly 

seconded, the resignations wore aaacptod by the three mubcrs prezont. Ircmadlately aftsr th& acceptance of them three resignations, . 

the remaining three members who were present appointed I'our new 

cezcbers to fill the vacanoles occasioned by those resigning. Pihen 

potIfled.of their appolntnent, three of the newly appointed membersrefused to agceptthelr.appoIntaents and r&used to qualify and take 

the oath of offIce,, One of the agpolnteea, however, dld~quallfy 

and take the oath or office.' 

At the mati regular ~eetlng of the board the three m~mbbers 

who bad cot tendered resignatIona, and the on4 newly appofnted mmber who had qualIfIed aud takan the oath of office, attended the 

ueetlng and appointed throw other persons to fill the pLaces whldh' 

,bad been refusad by the fornor appointees. These last three 

appointees then aoaopted the appolntmont, qualified and took the 

oath-of ottlB'4:. Nme oi' the trustees-who tendered resignations 

ever atte&pted to withdraw such resIgnatIons. 

.Tbe followlng'questlon are asked: 

*Please advlss us as to: Flrat. the leeal status of the 

Soard at the tine the prestdent refused to take a vote on a seventh 

Ewmber for the board after a zotlori had been made for an appointmnt 

and duly seconded, when there were only rive rneubers present. 

wScaond: Did tha thres members who regained on the board 

have authority for aaceptlng resignations or the otbez thrce.mmhers? 

"Third: Did ths tL-ee mmbbers heve tho authority to appoint 

the four F;embera to the board? . 

"Fourth: Rbat is the legs1 status or tba present board?" 

A~tlale 2777, P.cvlsed Civil Statutes, aontalns the followlog provision: 

*The members of the board rsn!aInInS after a~vacency 

I 

shall fill the sesm for the un4xpIred term." 

atlcle 16, Section 17 of tha Constitution of ilexas, 1s 

03 r0ilo;rs: 
!!on. T. St. Trlmble, Yay l2, 1939, Pege 3 

"kll offl~ers within this State shall continue to 

portorn~ the duties of thair'bfflees until their auaoessors 

shall be duly quallried," 

Although It bea been held that under *his soctlon of the 

Constltutlon an.oSflcsrwho holdde over until hls suocessor is duly 

quallffed, ia a de Jure oifioer, (Cowan V. Capps, 278 9. w. 283; 

State f. 3ordiu.1, T. C. A. 1930, 28 S. ?1. (26) 921) lt has been held . 

tbat the failure to eleot a suooesPor oonrti.tutes aavs~ancy* .In 

aaid offiae within the zeaning of a statute providing ror filling 

0r a .vaoanoy. Clark Y. Kornd-l, (T, C. A. 1930) 63 S,. W. (2d) 350. 

Uud&btsdly the ssae ruZe would apply to real~na~lons, and we thinks 

the ~lacss were subjeot to be rllled after the resi@mtloxm were. . 

preeented. 

. 

A olafority or the board of trwtses i(l aeueasary to aoaat&ate a quontm, for the purposo.0~ transaotlng buBlnesn, whiola 

la this-lnstanoe would be rour. Articles 14 end 2779, Retiaed 

Clvll Statutes. 'The number: constituting a quorum for the purpose 

of traasaotlng business uould et al3 time8 resin a Eajorfty OS. 

the agihorlzed mmbershlp notwithstaading the ,faot that the actual 

m?abershlp of the board ml&t be rebuaed below aeven because of 

-~t%i%:-(Caa..of Asp. 1920) 290 S. r;.'~WZ. 

~omss V. Abernaw Coun%y Use Independent School 

Although the metiers teadtrlng their resignations would 

continueas da jure offioera oapable of tran'aactlng business, and 

the nacabet requlrod to constitute a quorws would require the 

presanos of rour muhera of the board, it does not tieoessarlly 

toUou that the mexbtrs who were holding over as de jure trustees, 

pending the time their successors would be appointed aud quallfleq, 

rould be re&ers of the boaid or ureazilalng aercbers,* for the 

purpose or &ppolntlnfj their suaceasors or that a quorumwould beg 

neoeasary to mkt such appolatmeate, We call partloular attention 

to the language quoted above from Artlole 2771. It doesnot proride that themboard of trustees" shall fill the rscsnoy but that 

"the membera of the board reaafaing" shell f1J.l the raaanoy.. . 

I 

The only oa8e 1n Zetas which'has come to our attsntloa in 

which the polat was attempted to tie raised 1s Barrett P. Tats, 

(T.C.A. 1333) 66 S. L. (26) 444. Thb court refused to pess.upon 

the issue and disposed of the case upon the ground that-the only 

Way to t%6t the legs~ty Or SU& appointmeat was by quo Warrant0 

brought la the.nam of the Stata and that the appointed trustees 

~t'ore at least dd tacto trustcea and the rtgularlty of thtlr eleotlon 

could not be questioned in a oollateral prooeeding.. 
::on. T, E'. 2rlnble, Kay 1~3, 1939; 2qe 4 

There la some coufllot between the exprcaslons ot the courts 

in other jurIadIctlon8, but the oaoe law in Ktntuaky 1s grobcbly 

more olearly defined ou this lame than la auy other jurlsdlotlon. 

v"ertaln dfstluatlons cede bp the oourte of that Stat0 appear to u8 

to be well founded and we think thcysinuld be applied to the faots 

herein presented. 

Zn Gla88 v. City of Eopklnerlllc (Ct. of App. Xy. 1928) 

9 S. k. (26) 117, the oourt bald that where vaoanolec were to be fllisd 

by a majority of the board, the nczabers whose term were expiring 

u0re not qa.irwa toYiZTst in xialclag appointments to 1111 such 

vaoanole8. It was also held that as a aondltfon to valid aotlon the 

prcsaaoc of a quorux wsa aeoemary. The oourt, however, dlctln&ched t&t okso from a 8ltuntlon-in Which the stat&a would Droride 

that the appolatment shonld be Eade br the reucainln~ mcmb&s or 

other menbers of the bocrd. 1, 

_ In Douglas ‘18d ?ltUan (Ct. oZ'App8. IQ. 1931) 39 S. 8. (2d) 

979, the statute under oonsldcmtlon was a8 iollomt 

"kny raoanoy.in said .boc?ii, from whatever cause ooourrlng, 

sh8l.l be fllltd by the othcrsmabar8 or the board as soon as 

..- 'motlcable after such vacanoy oaaura. Tbc mtmborc 80 

c&35011 shall hold atHoe ror the rcmlnlng part 0r the teru 

of.bIa predecessor, and uutl.l.hls aucce58or 1s cleotcd and 

quallilcd subjcot to the provlaiona of hatuoky Constitution, 

stct:oa lx.- . 

The oourt $n applylag the dI8tltiotlon mentioned in the Class 

case, supw, stated: 

-'It :ls argued that there 18 dot now a quorum of. 

cllglble members of aaid board. .ThcreSore, the rcua.Iulug 

mmbers have no power to fill the vaoauoy. It la said 

that the board bad adopted 50 rule requIrlng say number 

of parsonsto be preseat to oonctitute a quanta, end that, 

in the absenoe ot some statute or rule defining the IWEber acoescary to oonst1tute.a quotttm, the comma law rule 

of a uajorltywaa otoessary to oonstltute a legal board. 

Clasc v. City of lXopklnsvlllc, 9S. W. (2d) 117. hit 1s 

true t&at po order, lasoisr a8 wo are lnfomed by this 

record, had been cede by the board designating a quorum. 

It 1s 1lkewIse true that the statute provides no oertnln 

number, but eaya that the 'other member5 or the board* 

shull fill racauoles. The Glacs oa8e, aupre, olearly 

dltierentiates between the statute here and the one under 

oonsldemtlon in that case. 
i:.on. Ti x. Trimbie, Uay 18, 1939, Page 6 

"It is clear that the legisleture Intended by thl8 

Aot to have at all tlmea a working board unhampered by 

vacancies and with the continual every prseent ability reposlq~ in them to flllvacanoles end perfom duties ¶.zIpooed upon them as such oifloiele.. 'The meaning is 80 

apparent on its face aa.to need no conetruotlon. Booth 

v. Owcnsboro Board of Education, 229 S. a. 84. be are of 

the o?inlon that the Circuit Court oonectly ruled that the 

three remalnlng uembera, in the absence'or any atetutory 

grovlslon to the contrary, were entitled to act in iill& 

these vacancles.~ 

Aooordi -Ward of Truetees of h&t Llok Graded Common 

z"ohooi District v. Grqheral (Ct. of App. Ky. 1931) 45 S. a. -(2i) 

S46; %'tor v. $radtord (Ct. App. Xy. 1936) 96 S. W. (2d) 6, where 

oikly one amcber remefned, 

'ihe& is.some hqUag4 %I YiaI.ker v. Ealkor, (T. C. A. 1922) 

.24l S. %:525, which ml&t bo oonstrued as lntlmatlng that the oourt 

wuld have agreed with the line or aa oited abova. Inthat . 

cam the trial court enjoined the trustees from maw appofntments 

to-Zill an~vaozu&ies that t;ight:occur.pending an aqtlon. ror their 

removd and the dOUI% Of civil Appe&i hehd: 

Vie have all ?onoluded that the trial court erred 

in enJoining the detendants from electing a trustee or 

trustees, in casi 0r a va'cancy, In 0884 vacanoies..ahoald*, 

pccur, by de+th or resi@atlon, so that the board or 

~tr&t'ees wciuib.be~rdduced-to loss than a majority or the 

number provided by law, the romalnlng trustees could not' 

conduct. the arrairs of the school Ulstrlct. Art. 2891 

V.-S. Tex. Cir. Stats. Ii this should occur the school 

interests mQht'be jeopardized.* - 

Te, therefore, answer your questions es iollcns: 

Ieat ainoe no vota wae ever taken at the first meeting 

and no ono was ever appointed or cleated to oucoeed the first member 

who had resigned, the board at that tine we8 composed of seven de 

Jure meubcrs capable of transacting business of the ~ohool~dlstrlct 

wlth one trustee subject to be replaoed by appointmen% and quallfication 0r his suocesaor. 

Second: Nono or the trustees who hod resigned heving 

attempted to withdraw their reelgnatlons, the second question becomes lrzaterlal. 
- 

lion. T. 1. Trlmble, &bay 18, 1939, Pace 6 

Third: The three mrebere remaining ._ __- . _ 

after the rour 

_ resignations hed been tendered wer4 authorized to appoint WCo.eaaorm to those rcslg.alng and.when three of theee eppolntees 

i‘erwed to accept their appolntmsnte and quality, the four then 

remben ot the board acre euthorlzod to procsad to appoint three 

aembers to the vacancies whlah had not been tlllad. 

?ou.rthr The present board ot trustees at the New Boston 

Independent Sohool.Dlstrlot 1s now co=poaed of seven de jure rezbera 

oonslsting ot the three mcrrbers who did not resign, the rtrst member 

who aocegted his appolntnient, qualified and took tho oath of ottioe 

and'the lest three =xmbers who qualllled and took the oath or 

ofHoe by virtue of their appointEent.by the throe original mmbers 

and their appointee after his qualifl~ation. 

Yours very truly 

AT%'OiZBEYDEX?XALOF TZUG