                      THE    AYTORNEY                   GENERAL
                                  OF 7lrExAs
                                 Aul3-xmw   11. TEXAS

   WILL     WILSON
A’lTO-         GENERAL.
                                       July   18, 1962


          Honorable Wm. L. Ferguson            Opinion No.    WW-1387
          County Attorney
          Rusk County Courthouse               Re:      Eligibility of a person to
          Henderson, Texas                              be appointed a school,trus-
                                                        tee to fill a vacancy in
                                                        such office, when such per-
                                                        son has not resided In the
                                                        school district for six months
          Dear Mr. Ferguson:                            prior to such appointment.
               You have asked the following question:
                         “Is a person eligible to hold of-
                      fice as a school trustee In an lnde-
                      pendent school district who has been
                      appointed by the board to fill a va-
                      cancy when this person has not resided
                      in the school district for six months
                      prior to said appointment?”
               Article 1.05, Texas Election Code, provides in part:
                           “No person shall be eligible to
                      s     State, county,
                      clpal office in this ?%GuifeFiZ
                      shall begible       to hold office un-
                      der the Constitution of this State,
                      and unless he shall have resided in
                      this State for the period of twelve
                      (12) months and six,(b) months In the
                      county, precinct, or municipalit      I
                      which hefferslmself
                                 o               as a can%d$e,
                      next preceding any general or special
                      election, and shall have been an ac-
                      tual   bona fide citizen of sa
                      precinct, or municipality
                      months. . . .I’ pmphasis w
                Whitmarsh v. Bucklex, 324 S.W.2d 298 (Clv.App. 1959) was a
           case involvlnn the right of one elected trustee and one aDDOinted
          ~trustee of th: Aldine-Independent School District In Harris County
           to continue to serve on the Board of Trustees, after the area in
          which they resided was de-annexed from the Aldlne Independent
Honorable Wm. L. Ferguson, page 2             Opinion No.   WW-1387   *




School District and annexed to the Houston Independent School
District. The Court of Civil Appeals held that Art. 1.05, Texas
Election Code, was the governing law In the situation. After
quoting the above statute, the Court stated at page 301:
             "From this It will be seen that
          every type of office in the State
         Is covered In general terms. While
         the term 'school trustee’  is not
         used, the terms 'State', 'countyl,
         'precinct' and tmunlclpal office'
         are used. We think the term 'pre-
         clnct' Is used In a general sense
         to include all political units within
         the county, except municipal, that
         are less than county-wide in area.
         The evident purpose of the statute
         Is to require representation of a
         political unit by one who Is elected
         who resides In the unit which he Is
         to serve. It is true that it does
         not deal specifically with removal
         from office upon cessation of resi-
         dence once a person has been elected,
         but it would in effect be meaning-
         less if it is Interpreted as tiestric-
         tive only of residence at the time
         of election and qualification. If
         it Is so restricted, a person could
         be elected and qualjpyand then move
         out of the political unit and yet
         continue to act in an official capa-
         city when he is no longer affected
         by the acts he performs. A statute
         should be liberally construed to
         effect the Intention of the legis-
         lature. It has ever been traditional
         with Texas to require representation
         be elective officers who are resi-
         dents of the political unit for which
         the elected officer acts.
            "We therefore, hold that when a
         school trustee permanently becomes
         a non-resident of the school dls-
         trlct he was elected to serve, he
         vacates his office."
Honorable Wm. L. Ferguson,‘page 3            Opinion No. WW-1387


     On Motion for Rehearing, the Court modified its use of
the word “vacate” as used in last sentence quoted above, and
stated at page 303:
             “Under Article 1.05 of the Elec-
          tion Code a school trustee becomes
          lneligible.to continue to serve,
          upon proper attack, when he becomes
          a permanent non-resident of the dls-
          trict. We feel our use of the term
          ‘vacate’ in our original opinion was
          perhaps too broad. We think the
          correct term is ~inellglble.~ There
          Is nothing In the statute providing
          that an office will automatically
          become vacant when a person becomes
          InelIgIble. . . .‘I
     At page 304 the Court said:
             “It was admitted that appellees
          had been duly elected or appointed
          to office, had qualified and were
          acting as trustees. They were,
          therefore, de facto officers and
          the action to question their ellgl-
          billty to continue to serve Is by
          quo warrant0 proceedings.”
     If a person Is not eligible to be elected to serve as
school trustee unless he has been an actual bona fide citizen
for six (6) months next preceding his election, then an ap-
pointee who fills a vacancy on a school board must possess the
same qualifications for that office as one who is elected, and
must have been an actual bona fide citizen of such school dis-
trict for SIX (6) months next preceding his appointment. We
could paraphrase what was said above In the Whltmarsh case,
and say: It Is true that Art. 1.05, Election Code does not
deal specifically with the residence qualifications of one who
is appointed to fill a vacancy, but the article would In effect
be meaningless if It is interpreted as restrictive only of resl-
dence qualifications for those who are elected as school trustees.
We hold therefore, that a person who has not resided in the school
district for six (6) months or more Is not eligible for appoint-
ment as school trustee to fill a vacancy.
Honorable Wm L. Ferguson, page 4               Opinion No. ~~-1387   *




                          SUMMARY

          A person who has not resided in the school
     district for six (6) months or more Is not ell-
     gible for appointment as a school trustee   to
     fill a vacancy on the Board of Trustees   of ar
     Independent school district.
                                    Yours very truly,
                                    WILL WILSON
                                    Attorney Qeneral of Texas



                                       Riley Eugene Fletcher
                                       Assistant
REF:rk
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Robert Lewis
W. 0. Shultz
Colemen Gay
REVIEWEDFOR THE ATTORNEYGENERAL
BY: Leonard Passmore
