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.      ive quote from the
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 a trustee      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?       What difference     will     a half-uncle     make, if a
person    Is half-niece     by marriage       or affinity?       In this case,
the trustee      is a half-uncle-by        marriage.      He sis.the    president
of the School Board and has to sign the pay checks.                      This
person would be disqualified           if they were a full          niece by
affinity     but I do not know what difference             this would make
In the case of this teacher."

We assume that your question   relates  to an independent                   school
district and will consider   it on that basis.

Article    2777, Vernon's    Annotated       Texas Civil  Statutes,
applicable     to independent   school       districts,  reads as follows:

"The seven candidates        receiving the largest   number of votes
at the first     election,    and the three or four candidates    re-
ceiving   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,    o-6259


two, three and four shall        serve for one year, and the three
members drawing the numbers five,           six and seven shall    serve
two years,    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 same for 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                   constl-
tutional     provision      an officer     who holds over until          his successor
is dul      qualified,      Is a de jure officer.            (Cowan v. Capps,
278 s. j: . 283; state v. Jordan,           28’S.ri.     (2) 921) It has been
held that the failure          to ‘elect    a successor       constitutes     a
“vacancy”      in said office       within   th,“,;;;nlvng     of a statute       pro-
vidin     for filling       of a vacancy.                   . Wornell,    65 S.W.
(2) 320.       Undoubted1 y we think the same rule 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 successor is appointed                and qualifted,     it is our
opinion    that he would not be considered                “a member of the board
remaining    after   a vacancy ” 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 v acancy but that “the members
of the board remaining”           shall   fill    the vacancy.        We are supsorted
in this holding      by authorities         cited’in’Opinlon        No. o-761 of
this department,       a copy of which Is enclosed             herewith.         The hold-
over 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.     See
Hon.   T. M.   Trlmble     - Page .3, o-6259



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

                                          Yours   very    truly

                                     ATTORNEYGENERALOF TEXAS

                                     s/   Wm. J. E'annkg


                                                    Wm. J. Fanning
                                                      Assistant

WJF:BT/cg

A?lROVELl hlAY 5, 1945
s/ Grover Sellers
ATTORNEYGENERALOF TEXAS

Approved Opinion         Committee
By BWB, Chairman
