Honorable S. B. Buchanan, Jr.

.County Attorney Val Verde County Del Rio, Texas Opinion No. O-4106
Re: Vacancies in office ofcounty school **trustee.**
Dear Sir:
We have received your letter ofrecent date, which we quote inpart as follows:

“Is a County Board **of** Trustees appointed by the zemaining members ofthe board itself and the Commis.- sioners’ Court ofthe county alegally constituted and existing board ?
tWhat is thestatus ofa member ofthe board whose term has expire,d but for whom no successor has been .elected or named ?”
Inyour letter you give us the following information as reflected by the minutes ofthe County Board of Trustees, dated August 8, 1940:

Complete minutes and records ofthe County School Board had not been kept for a period of several years, as a result ofwhich itcould not be determined which ofthe five trustees was the trustee at large. Neither could the terms of office ofthe several **trustees** be ascertained. Thereupon, itwas 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 ofthemembers then resigned and was so appointed except one who had moved **out** ofthe Commissioners’ Precinct from which he was elected. The Commissioners’ Court then undertook tolegalize the membership of the County Board ofTrustee,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 ofthe precinct. Lots we’re then drawn to determine the **terms** for which the members would serve, the results ofwhich were as follows: The trustees from Commissioners’ Precincts 1and 4would serve until April 8, 1941. and the trustees from Commissioners’ Precincts 2and 3. .

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

and the trustee atlarge 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 4eleven 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 ofthe 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 ofthe common .andconsolidated independent school districts ofthe county, and one from each Commissioners’ Precinct by the qualified voters of each’Commissione.rs’ Precinct; who Shall hold office for a term oftGo years. The time for such election shall be the first Saturday inApril of each year; the order for the election of county.school trustees to be made by the county judge at

. least thirty days prior tothe date ofsatd election, and such order shall.designate one voting place for each~common school district. The election officer appointed tohold 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** ineach county. The State Superintendent shall prepare a proper form ofthe ballot to be used in such election and such other explanation ofthe laws as he deems necessary, and transmit the same to the county judge ofeach county at least sixty days,prior to the date ‘ofsuch election. All vacancies shall be filled by the remaining trustees. All elections heretofore held in accordance with the foregoing provisions ofthis section are hereby in all things validated and all trustees so elected shall continue tohold office until the expiration ofthe term for which they were originally elected.
“All laws and parts oflaws inconflict 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 ofthe precinct or county from which they **are** elected, and four ofthem shall reside indifferent commissioners precincts. They shall be ofgood moral character, able to read and speak the English language, shall be persons ofgood education, and shall be in sympathy with public free schools. The returns of their election shall be made tothe county clerk within five days after such election shall have been held, to be delivered by him tothe commissioners court at its first meeting thereafter tobe 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 ofthe said court after they have taken the official oath and filed same with said clerk.”
“Art. 2684. At the regular meeting inMay, the county trustees shall elect one oftheir 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 ofsaid **county** school **trustees** in awell bound book, which shall be open to public inspection. He shall keep an accurate record ofthe term ofoffice of each common school district and county school trustee, and shall furnish the county judge at least sixty days prior to the data oftheir election the number of **trustees** to be elected in each district or precinct or inthe county at large.”
“Art.. 2729a. In any organized county ofthis State not having heretofore elected or appointed a county board oftrustees, the Commissioners’ Court ofsaid county is hereby authorized to appoint a c~ountyboard of trustees for said county, the residence ofwhose members conform tothe provisions of the general law relating tothe election of county trustees.
“And the said board ofcounty school trustees when appointed shall have and exercise all the rights and powers conferred upon county boards oftrustees by the provisions ofthe general law; provided also that the county board may create one or more school districts inany unorganized county attached to said organized county for judicial purposes and provide for the organization of schools therein by the appointment oftrustee~s. .

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

for the said districts. The county school trustees ofany organized county are authorized toexercise the authority heretofore vested inthe Commissioners’ Court with respect to subdividing the county into school districts and making changes in school district lines.”
Each ofthe resignations except that ofthe trustee from Precinct 4was based onthe consideration that the remaining members would appoint the resigner tofill the vacancy which would be created by his own resignation. InMcCall v. Whaley, 115SW. 658, the court made the following statement:
“It is contrary topub1i.cpolicy, and therefore unlawful, for persons totraffic 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 ofconsideration which .itcondemned by the McCall case. Itmight 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 itwas **or** notwould make no difference as far as the result is concerned. A re-appointed **trus** tee could claim no-rights greater than that which he had before resignation; hewould nec.essarily be appointed for the unexpired portion ofhis term.

You are respectfully advised, therefore, that each ofthe “reappointed” **county** school trustees by continuing to perform the duties ofhis office occupied the same status subsequ.ent tohis resignation, whether it was aneffective resignation or aot, as he did pri.or thereto, tothe extent at least ofbeing de facto officers. See 34Tex. Jur. 614-620.

The action ofthe commissioners’ court was a nullity. Itis presumed that they undertook toact under Article 2729a, but the terms ofthe **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 ofArticle 2729a which provides that ‘in any organized county ofthis State not having heretofore elected or app,ointed a county board oftrustees, the commissioners’ court ofsaid county i.shereby 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 oftrustees.”. .

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

The case of Clark v. Wornell, 65S.W.2d 350, involved the construction oftwo provisions ofArticle 2774a, Section 4, V.A.C~.S,., which read:

“Should any rural high school district fail toelect a **trustee or**  **trustees** as provided for inthis act, the county board oftrustees shall appoint said trustee or **trustees:, ”** 
and
“The members ofthe 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 thefilling ofvacancies thereinby 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 tofill vacancies therein. Such vacancies could be filled by the remaining members oft. the board. and hence the act provided that: ‘The members., ofthe board remaining after a vacancy shall fill the same for the unexpired **term. ’** 

‘?Under the well-established rule inthis state, ~upon,a failure ofthe district toelect a successor to Simmons at the regular election held for that purpose, there was a ‘vacancy’ insaid office within the meaning ofthe last above quoted pro: vision of said act.~ Tom v. Klepper (Tex.Civ.App.) 172SW. 721; Maddox TV.

York, 21 Tex.Civ.App. 622, 54S.W.~24; Dob-, kins V.State ex rel. Reece (Tex.Civ.App.) 19S.W.2d 574.” Thus, inthe situation at hand, the commissioners’ court under Article 2729a appoints the membe,rs ofthe 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 inthe county~boerd are to be filled by the remaining trustees by virtue ofthat pait ofArticle 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 ofthe rterm. It is the duty ofthe county superintendent as secretary ofthe county board to keep an accurate record ofthe term of office ofeach **county** school trustee, and the importance ofkeeping full minutes and records ofthe meetings and actions ofthe 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 byan examination, first, of the records which the board does have and, second, ofthe past election proceedings in the office ofthe county clerk. At any event, this responsibility rests with’ the county board and the county superintendent, notwith this department.

The remainder ofthis 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 ofthe several **county trustees.** 

Article 2676 designates the first Saturday inApril as the date of election ofthe **county** school **trustees.** Ifnoelection is held and the trustee whose term expired continues toact as such he is a “holdover” officer with all the powe.rs incident tohis office. See Article XVI, Section 17. Constitution ofTexas;‘State, ex rel. Glenn. et al v. Jordan, 28S.W.2d 921 (1930, W-E. Ref.). This prevents a vacancy inthe sense that there is no inc~umbent tohold the office, but there is a vacancy for the purpose ofnaming the incumbent’s **successor.** State V. Jordan, supra; 34Tex. Jur. 372.

An incumbent State or **county** officer must continue to perform the duties ofhis office until his **successor** qualifies. This is true even when the incumbent is elected his own **successor.** Article XVI, Section 17, Constitution ofTexas; 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 tohold 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 notHonorable S. B. Buchanan, Jr., Page 7 (o-4106)

essential to securing a fair expression ofthe popular will should not void anelection. Davis v. State ex. rel. Wren, 12S.W. 957.

This is as far as we can go because oflack ofthe necessary facts topass adequately and accurately onall the specific situations presented in 

### yourletter of request. However, we believe that the principles announced herein will aid you in ascertaining answers tothe questions inwhich 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