OFFICE OFTHE ATTORNEY GENERALOF TEXAS AUSTIN

LRY 16, 1639

t:onorabia

'2. &. 'I'rinble Plrfit Assistantltate Su:erintecCent hlatln* hxns Cesr Sir:

%I tire in reoslptor y you 

### request

the. opinionOS tb mlttui by L. 8. 

### Qriffln, C hl8 letterrhioh 309 bare

The taet8 u olosed **by** hts letter al% e.ubttantially

&II

**was 00oapo6d**  **or E** 

the0 bad it .tbenotion t a serentbmea&m.

h%m~ thla firstuioatfng; broke U&I,

&OWOV8r, it wan o@~nsQ that therewould bs anothermsetlngthe mst alght TOT the purpoas of Pillingthe 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.ngaoavensd,however,..

.

. .:,.



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

three of the roEalnlhS six embers presentedwritton 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 reslguatlonwere present. The three additional resignationset this tIn4 were browbt up nnd upon notion duly seconded,the resignationswore aaacptodby the threemubcrs prezont. Ircmadlately aftsr th& acceptanceof them three resignations,

. the remainingthree members who were present appointedI'our new cezcbers

to fill the vacanoles occasionedby those resigning. Pihen potIfled.oftheir appolntnent, three of the newly appointedmembersrefused 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 appofntedmmber who had qualIfIedaud takan the oath of office, attended the ueetlng and appointed throw otherpersons to fill the pLaces whldh' ,bad been refusad by the fornor appointees. These last three appointeesthen aoaopted the appolntmont,qualifiedand took the oath-of ottlB'4:.

Nme oi'the trustees-who tendered resignations ever atte&pted to withdraw such resIgnatIons.

.Tbefollowlng'questlon are asked: *Please advlss us as to: Flrat. the leeal status of the Soard at the tine the prestdent refusedto 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 memberswho regainedon the board have authority for aaceptlng resignations or the otbez thrce.mmhers? "Third: Did ths tL-ee mmbbersheve tho authorityto appoint the four F;embera

to the board?

. "Fourth: Rbat is the legs1 status or tba presentboard?" A~tlale 2777, P.cvlsed Civil Statutes, aontalnsthe followlog provision:

*The members of the board rsn!aInInS after a~vacency
I shall fill the sesm for the un4xpIredterm."

atlcle 16, Section 17 of tha Constitutionof ilexas, 1s 03 r0ilo;rs:!!on.

T. St.Trlmble, Yay l2, 1939, Pege 3

"kll offl~erswithin this State shall continueto portorn~

the duties of thair'bffleesuntil their auaoessors shall be duly quallried," Although It bea been held that under *his soctlonof the **Constltutlon** an.oSflcsrwho holdde over until hls suocessoris 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 a avs~ancy* .In aaid offiae within the zeaning of a statute providingror 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-lnstanoewould be rour. Articles 14 end 2779, Retiaed Clvll Statutes. 'Thenumber: constitutinga quorum for the purpose of traasaotlngbusinessuould et al3 time8 resin a EajorftyOS. the agihorlzedmmbershlp notwithstaadingthe **,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 IndependentSchool
Although the metiers **teadtrlng** their resignations would continueas da jure offioeraoapable of tran'aactlng **business, and**  the nacabet

requlrod to constitutea 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 successorswould 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 partloularattention to the language quoted above from Artlole 2771. **It doesnot**  **pro** ride that themboardof 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 attemptedto 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-theonly Way to t%6t the legs~ty Or SU& appointmeatwas by quo Warrant0 brought la the.nam of the Stata and that the appointedtrustees ~t'ore at least dd tacto trustcea and the rtgularltyof thtlr eleotlon could not be questioned in a oollateralprooeeding..::on.

T, E'.2rlnble, Kay 1~3, 1939; 2qe 4

There la some coufllotbetween the exprcaslonsot 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

dfstluatlonscede bp the oourte of that Stat0 appear to u8 to be well founded and we think thcysinuldbe applied to the faots hereinpresented.

Zn Gla88 v. City of Eopklnerlllc (Ct. of App. Xy. 1928) 9 S. k. (26) 117, the oourtbald that where vaoanolecwere to **be** fllisd by a majority of the board, the nczabers whose term were expiring u0renot qa.irwa **toYiZTst** in xialclag appointments to 1111 such vaoanole8. It 

### was also held that as a aondltfon to valid aotlon the prcsaaocof 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 othermenbers 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.bIapredecessor,and uutl.l.hls aucce58or 1s cleotcdand quallilcd subjcot to the provlaionaof hatuoky Constitution, stct:oa lx.-

. The oourt $n applylagthe 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 parsonstobe preseat to oonctitutea quanta, end that, in the absenoe ot some statute or rule defining the IWEber acoescary to oonst1tute.aquotttm, the comma law rule of a uajorltywaa otoessaryto oonstltute a legalboard. Clasc v. City of lXopklnsvlllc, 9 S. W. (2d) 117. hit1s true t&at po order, lasoisra8 wo are lnfomed by this record,had been cede by the board designatinga quorum. It 1s 1lkewIse true that the statute provides no oertnln number, but eaya that the 'othermember5 or the board* shull fill racauoles. The Glacs oa8e, aupre, olearly dltierentiatesbetween 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 legisletureIntendedby thl8 Aot **to** have at all tlmea a working board unhampered by vacancies and with the continualevery prseentability 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. OwcnsboroBoard of Education,229 S. a. 84. be are of the o?inlon that the Circuit Court oonectly ruled that the three remalnlnguembera, in the absence'orany 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) .24lS. %:525, which ml&t bo oonstruedas lntlmatlngthat the oourt wuld have agreed with the line or aa oited abova. Inthat

. cam the trial court enjoined the trustees from maw appofntments to-Zillan~vaozu&ies that t;ight:occur.pending an aqtlon.

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

Vie have all ?onoludedthat 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'eeswciuib.be~rdduced-to loss than a majorityor the number provided by law, the romalnlngtrustees couldnot' conduct.

the arrairs of the school Ulstrlct. **Art.** 2891 V.-S. Tex. Cir. Stats. Ii this should occur the school interestsmQht'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 appointedor cleated to oucoeed the first member who had resigned, the board at that tine we8 composed of seven de Jure meubcrs capable of transactingbusiness of the ~ohool~dlstrlct wlth one trustee subjectto be replaoedby appointmen%and quallfication 0r his suocesaor.

Second: Nono or the trusteeswho hod resignedheving attemptedto withdraw their reelgnatlons,the secondquestionbecomes lrzaterlal.-

lion. T. 1. Trlmble, &bay18, 1939, Pace 6

Third: The three mrebere remaining
._ __- . _ after the rour

_ resignationshed been tenderedwer4 authorizedto appoint WCo.eaaorm

to those rcslg.alng and.when three of theee eppolntees i‘erwed to accept their appolntmsnteand quality, the four then **remben** ot the board acre euthorlzodto procsad to appoint three aembers to the vacancies whlah had not been tlllad.

?ou.rthr The presentboard ot trusteesat the New Boston IndependentSohool.Dlstrlot1s now co=poaed of seven de jure rezbera oonslstingot the three mcrrbers who did not resign, the rtrst member who aocegtedhis appolntnient, qualified and took tho oath of ottioe and'the lest three =xmberswho qualllledand took the oath or ofHoe by virtue of their appointEent.bythe throe originalmmbers and their appointee after his qualifl~ation.
Yours very truly AT%'OiZBEYDEX?XALOF TZUG