Honorable S. B. Buchanan, Jr. 

.County Attorney 

Val Verde County 

Del Rio, Texas 

Opinion No. O-4106 

Re: Vacancies in office of county 

school trustee. 

Dear Sir: 

We have received your letter of recent date, which we quote 

in part as follows: 

“Is a County Board of Trustees appointed by the 

zemaining members of the board itself and the Commis.- 

sioners’ Court of the county a legally constituted and 

existing board ? 

tWhat is the status of a member of the board whose 

term has expire,d but for whom no successor has been 

.elected or named ?” 

In your letter you give us the following information as reflected 

by the minutes of the County Board of Trustees, dated August 8, 1940: 

Complete minutes and records of the County School Board had 

not been kept for a period of several years, as a result of which it could 

not be determined which of the five trustees was the trustee at large. 

Neither could the terms of office of the several trustees be ascertained. 

Thereupon, it was determined that each member would resign and the 

other members remaining on the Board after each resignation would appoint the one resigning to fill the’ vacancy created by his own resignation. 

Each of the members then resigned and was so appointed except one who 

had moved out of the Commissioners’ Precinct from which he was elected. 

The Commissioners’ Court then undertook to legalize the membership of 

the County Board of Trustee,s by reappointing the four members who were 

appointed by the Board after the resignation and by appointing a person to 

fill the vacancy created by the resignation of the member who moved out 

of the precinct. Lots we’re then drawn to determine the terms for which 

the members would serve, the results of which were as follows: The 

trustees from Commissioners’ Precincts 1 and 4 would serve until 

April 8, 1941. and the trustees from Commissioners’ Precincts 2 and 3 
. . 

Honorable 5. B. Buchanan, Jr., Page 2 (o-4106) 

and the trustee at large would serve until April 8. 1942. No election was 

held for the county trustee of Commissioners’ Precinct l’in April, 1941; 

however, in Commksioners’ Precmct 4 eleven votes were cast at the 

voting place of one common school. district for the same person appointed 

by the Commissioners’ Court to fill the place left by the trustee who moved 

out of the precinct. 

Articles 2676, 2677, 2686 and 27,29a, Vernon’s Annotated Civil 

Statutes, provides as follows: 

“Art. 2676. 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 of 

whom shall be elected from the county at large by the qualified voters of the common .and consolidated independent 

school districts of the county, and one from each Commissioners’ Precinct by the qualified voters of each’Commissione.rs’ Precinct; who Shall hold office for a term of tGo 

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 days prior to the date of satd election, and such 

order shall.designate one voting place for each~common 

school district. The election officer appointed to hold the 

election .for trustees in: each common school district shall 

hold the election at the same place therein for the county .’ 

school trustees. Each year there shall be elected alternately 

two (2) county school trustees and three (3) county school 

trustees in each county. The State Superintendent shall prepare a proper form of the ballot to be used in such election 

and such other explanation of the laws as he deems necessary, 

and transmit the same to the county judge of each county at 

least sixty days, prior to the date ‘of such election. All vacancies shall be filled by the remaining trustees. All elections 

heretofore held in accordance with the foregoing provisions 

of this section are hereby in all things validated and all 

trustees so elected shall continue to hold office until the 

expiration of the term for which they were originally elected. 

“All laws and parts of laws in conflict herewith shall be 

and the same are hereby’repealed.” 

. 
Honorable S. B. Buchanan, Jr., Page 3 (o-4106) 

“Art. 2677. The county school trustees shall be qualified 

voters of the precinct or county from which they are elected, 

and four of them shall reside in different commissioners precincts. They shall be of good moral character, able to read 

and speak the English language, shall be persons of good education, and shall be in sympathy with public free schools. The 

returns of their election shall be made to the county clerk 

within five days after such election shall have been held, to 

be delivered by him to the commissioners court at its first 

meeting thereafter to be canvassed and the results declared 

as in cases of other elections. The county clerk shall issue 

to said trustees their commi.ssions and impress thereon the 

seal of the said court after they have taken the official oath 

and filed same with said clerk.” 

“Art. 2684. At the regular meeting in May, the county 

trustees shall elect one of their number president; and three 

trustees shall be a quorum to transact business, and all questions shall be decided by majority vote. The secretary shall 

keep a true and correct record of all the proceedings of said 

county school trustees in a well bound book, which shall be 

open to public inspection. He shall keep an accurate record 

of the term of office of each common school district and county 

school trustee, and shall furnish the county judge at least sixty 

days prior to the data of their election the number of trustees 

to be elected in each district or precinct or in the county at 

large.” 

“Art.. 2729a. In any organized county of this State not 

having heretofore elected or appointed a county board of trustees, the Commissioners’ Court of said county is hereby authorized to appoint a c~ounty board of trustees for said county, 

the residence of whose members conform to the provisions of 

the general law relating to the election of county trustees. 

“And the said board of county school trustees when appointed shall have and exercise all the rights and powers conferred upon county boards of trustees by the provisions of the 

general law; provided also that the county board may create 

one or more school districts in any unorganized county attached 

to said organized county for judicial purposes and provide for 

the organization of schools therein by the appointment of trustee~s 
. . 

Honorable S. B. Buchanan, Jr., Page 4 (o-4106) 

for the said districts. The county school trustees of any 

organized county are authorized to exercise the authority 

heretofore vested in the Commissioners’ Court with respect to subdividing the county into school districts and 

making changes in school district lines.” 

Each of the resignations except that of the trustee from Precinct 

4 was based on the consideration that the remaining members would appoint 

the resigner to fill the vacancy which would be created by his own resignation. In McCall v. Whaley, 115 SW. 658, the court made the following statement: 

“It is contrary to pub1i.c policy, and therefore unlawful, 

for persons to traffic in official positi.ons; and therefore an 

agreement to resign an offi.ce or exert efforts to procure an 

office for another for a consideration is unlawful and not 

enforceable.” 

But we do have to decide whether #is is the type of consideration 

which .it condemned by the McCall case. It might be argued that it is; that, 

therefore, the agreement and the resignation would be unlawful; and that the 

resignation was never effective as such. But whether it was or notwould 

make no difference as far as the result is concerned. A re-appointed trustee could claim no-rights greater than that which he had before resignation; 

he would nec.essarily be appointed for the unexpired portion of his term. 

You are respectfully advised, therefore, that each of the “reappointed” county school trustees by continuing to perform the duties of his 

office occupied the same status subsequ.ent to his resignation, whether it 

was an effective resignation or aot, as he did pri.or thereto, to the extent 

at least of being de facto officers. See 34 Tex. Jur. 614-620. 

The action of the commissioners’ court was a nullity. It is presumed that they undertook to act under Article 2729a, but the terms of the 

statute patently show that even if the resignations had been valid in every 

respect it still would not be applicable. You will notice that part of Article 

2729a which provides that ‘in any organized county of this State not having 

heretofore elected or app,ointed a county board of trustees, the commissioners’ 

court of said county i.s hereby authorized to appoint a county board of trustees 

. . . * (Emphasis supplied). This statute is obviou.sly inapplicable for the 

reason that Val Verde County had 

- 

‘heretofore elected or appointed a county 

board of trustees.” 
. . 

Honorable S. B. Buchanan, Jr., Page 5 (o-4106) 

The case of Clark v. Wornell, 65 S.W.2d 350, involved the 

construction of two provisions of Article 2774a, Section 4, V.A.C~.S,., 

which read: 

“Should any rural high school district fail to elect a 

trustee or trustees as provided for in this act, the county 

board of trustees shall appoint said trustee or trustees:,” 

and 

“The members of the board remaining after a vacancy 

shall fill the same for the unexpired term.” 

Both the school board and the county board, claimed the right to 

fill a vacancy existing in the school board. Justice Alexander, speaking 

for the court. made the following state.ment: 

(L 

. . . Until such board had been properly. create,d, it 

was necessary to provide for the filling of vacancies therein by some outside agency. The act places this responsibility 

with the county school board. After the first board of the 

newly created district had once been properly created,~there 

would be no need for an outside agency to fill vacancies therein. Such vacancies could be filled by the remaining members 

oft. the board. and hence the act provided that: ‘The members., 

of the board remaining after a vacancy shall fill the same for 

the unexpired term.’ 

‘?Under the well-established rule in this state, ~upon, a 

failure of the district to elect a successor to Simmons at the 

regular election held for that purpose, there was a ‘vacancy’ 

in said office within the meaning of the last above quoted pro: 

vision of said act.~ Tom v. Klepper (Tex.Civ.App.) 172 SW. 

721; Maddox TV. York, 21 Tex.Civ.App. 622, 54 S.W.~24; Dob-, 

kins V. State ex rel. Reece (Tex.Civ.App.) 19 S.W.2d 574.” 

Thus, in the situation at hand, the commissioners’ court under 

Article 2729a appoints the membe,rs of the county board,of trustees in an 

organized county not having heretofore elected or appointed a county board 

of trustees, but after such appointment or in c,ounties hairing.heretofore 

,eIected or appointed a county board, vacancies in the county~boerd are to 

be filled by the remaining trustees by virtue of that pait of Article 2676 which 

reads: ‘All vacancies shall be fil.led by the remaining trustees.,” 
. . 

Honorable S. B. Buchanan, Jr., Page 6 (o-4106) 

The drawing of .lots was likewise ineffective, for the members of 

the county board were elected for a fixed term. Moreover, a person appointed to fill a vacancy in the county board would hold office for the unexpired portion of the rterm. It is the duty of the county superintendent as 

secretary of the county board to keep an accurate record of the term of 

office of each county school trustee, and the importance of keeping full 

minutes and records of the meetings and actions of the county board cannot 

be overemphasized. You state that complete minutes have not been kept; 

yet, it should not be difficult to ascertain the terms of office for which the 

several board members were elected by an examination, first, of the records 

which the board does have and, second, of the past election proceedings in 

the office of the county clerk. At any event, this responsibility rests with’ 

the county board and the county superintendent, not with this department. 

The remainder of this opinion must necessarily be written in 

generalizations since we do not have full facts before us and since we do 

not know the terms of office of the several county trustees. 

Article 2676 designates the first Saturday in April as the date of 

election of the county school trustees. If no election is held and the trustee 

whose term expired continues to act as such he is a “holdover” officer with 

all the powe.rs incident to his office. See Article XVI, Section 17. Constitution of Texas;‘State, ex rel. Glenn. et al v. Jordan, 28 S.W.2d 921 (1930, 

W-E. Ref.). This prevents a vacancy in the sense that there is no inc~umbent 

to hold the office, but there is a vacancy for the purpose of naming the incumbent’s successor. State V. Jordan, supra; 34 Tex. Jur. 372. 

An incumbent State or county officer must continue to perform the 

duties of his office until his successor qualifies. This is true even when 

the incumbent is elected his own successor. Article XVI, Section 17, Constitution of Texas; State v. Jordan, supra. A county school trustee is a county 

officer. Opinion No. O-798. 

Article 2676 requires that the county judge order the election for 

county school trustees and that “such order shall designate one voting place 

for each common school district.” The article further states that the election officer appointed to hold the election for trustees in each common school 

district shall hold the election at the same place therein for the county school 

trustees. 

Provisions regulating the time and place of elections are usually 

regarded as mandatory. Gray v. Ingleside Ind. Sch. Dist. (W.R. Dismd.), 

220 S.W. 350. However, a failure to comply with statutory provisions not 
Honorable S. B. Buchanan, Jr., Page 7 (o-4106) 

essential to securing a fair expression of the popular will should not void 

an election. Davis v. State ex. rel. Wren, 12 S.W. 957. 

This is as far as we can go because of lack of the necessary facts 

to pass adequately and accurately on all the specific situations presented in 

your letter of request. However, we believe that the principles announced 

herein will aid you in ascertaining answers to the questions in which you 

are interested. 

Very truly yours 

ATTORNEY GENERAL OF TEXAS 

By /s/ George W. Sparks 

George W. Sparks 

Assistant 

GWS:LM:tiw 

APPROVED DEC. 9. 1941 

/s/ Grover Sellers 

FIRST ASSISTANT ATTORNEY GENERAL 

APPROVED OPINION GOMMITTEE 

By /s/ BWB. Chairman 

OK - GRL