Honorable J. W. Edgar           Opinion No. M-402
Commissionerof Education
201 East 11th Street            Re: Whether a person who is not
Austin, Texas 78711                 a registered voter can be a
                                    candidate for or appointed
                                    to the office of school
                                    trustee, and related ques-
Dear Dr. Edgar:                     tions.
          You have requested the opinion of this office upon
questions which arise out of the election of trustees for the
Spring Creek IndependentSchool District held on the first
Saturday of April, 1969.
          Your letter states that three trustees were to be
elected and that one week prior to the date of the trustee
election it was discovered that two of the four persons who
had filed as candidateswere not registered voters. However,
since the ballots were already prfnted and absentee voting
was In progress, the ballots were not changed and were used
on the day of the election. The three persons receiving the
highest number of votes were the two candidateswho were
registered voters and an Incumbent trustee who had not reg-
istered to vote.  You have predicated the following questions
upon these facts.
          "1, Does Article 2776a operate to prohfblt
    a candidate in an election for the offlce of
    school trustee who is not a registered voter at
    the time of his election to qualify for the
    office?
         "2. Does Article 2776a and/or the cited
    Election Code provisions/-Articles 1.05 and 1.067
    operate to prohibit appof?itmentof a person, who-
    Is not a qualffled voter, to fill a vacancy on
    a school district board?
          “3. Would Section 17 of Article XVI, Con-
     stltutlqn of Texas, operate to permit the ln-
     cumbent sohool trustee candidate for reelection,
                           -1991-
Koni J. w. Edgar, page 2 (M-402)


     who was not a qualified voter at 1969 election
     time, to serve the new term as holdover trustee
     where the local board does not appoint a fully
     qualified voter to fill the vacancy; or
          'Does the factual situationrequire the
     school district board acting pursuant to Article
     2777-l to fill the vacancy by appointment of a
     person otherwise qualified and who Is a registered
     voter?"
          Article 1.05, Texas Election Code, provides that no
person shall be eligible as a candidate for, or be elected or
appointed to, any public office In this State unless he be
eligible to hold such office under the Constitutionand laws
of this State. It further provides that no lnellglblecan-
didate shall be voted upon or have votes counted for him at
any election, but that votes cast for an lnellglble candidate
shall be taken Into account In determiningwhether any other
candidate receives the vote necessary for nomination or elec-
tion.
          Article 1.06, Texas Election Code, prohibits the
Issuance of a certificateof election or appointmentto any
person who Is Ineligibleto hold the particular office under
the Constitutionor statutes of this State.
          The Leglsl&ure has specified in Article 2776a,
Vernon's Civil Statutes, that "no person shall be elected as
a trustee of a school district In this State unless he Is a
qualified voter." The term "qualffledvoter," as used in this
statute, means that one must be a registered voter In order
to be eligible for election to the office of trustee of a
school district. Oser v. Cullen, 435 S.W.2d 896 (Tex.Cfv.
App. 1968, error d'ism.w,o.j.).
          It Is clear, therefore,that in order for a person
to be eligible for either election or appointmentto the office
of school trustee, such person must be a registered voter at
the time of the election or appointment. Attorney (leneral's
Opinion M-397 (1969). We answer your ffrst two questions In
the affirmative.
          As you point out In your letter, the lnellglble
person who received the third highest vote at the election
la an Incumbent member of the board of trustees. Under the
provisions of Article 2777, Vernon's Civil Statutes, the term
of this trustee expired on the day the election in question
was held. Since he Is InelIgIbleto be elected to the office
                          -1992-
.      .




Hon. J. W. Edgar, page 3 (~-402)


In question, there Is a vacancy In such office that is subJect
to being filled by appointment. Whenever a term of office has
ended and there has been a failure to elect someone to fill the
office, a vacancy exists within the meaning of a statute which
empowers some person,or body of persons to fill vacancies In
such office by appo~lntment.Tom v. Klepper, 172 S.W. 721 (Tex.
Clv.App. 1915, error ref.); Clark v. Wornell, 65 S.W.W 350
(Tex.Clv.App.1933, no writ).
          Article 2777-1, Vernon's Civil Statutes, authorizes
the members of the board of trustees of the Spring Creek Hn-
dependent School District to fill the vacancy by appointment
of someone who Is eligible.
          Section 17 of Article XVI of the Constitutionof Texas
specificallyprovides for an Incumbent officer to continue to
perform the duties of his office until his successorhas quali-
fled. One who holds over after his term of office has expired
holds the office by sufferanceand has no right or Interest In
the office itself, but functions to subserve the public convenl-
ence. Tom v. Klepper, supra; 47 Tex.Jur.2d 64, 65, Public Officers
r43.

          Therefore, in answer to your third question, you are
advised that while the Incumbent trustee who was lnellglble
for re-election Is entitled to hold over and function In the
office of school trustee, he has no right or Interest In the
office or the term of such office which began on the date of
the election, other than to protect possession of the office
from an Intruder. As we have pofnted out above, a vacancy
exists In this office and the board of trustees fs empowered
to fill such vacancy by appointment. We find nothing which
makes It mandatory that the board of trustees appoint someone
to fill the existing vacancy. Consequently,the Incumbent
trustee Is entitled to function fn such office untfl the
vacancy Is filled by appointmentof the board or a successor
Is elected at a subsequent election.
                      SUMMARY
            A person who Is not a reglstered voter Is
       ineligible to be elected or appofnted to the
       office of trustee of an Independentschool
       district. Art. 2776a, V.C.S.,;Attorney Qen-
       eral's Opinion n-397 (1969).
           Where an Incumbent trustee who Is not a
       registered voter recefves the number of votes
                            -1993-
Hon. J. W. Edgar, page 4 (M-402)


     which would entitle him to be elected If he
     were not ineligible,a vacancy exists in that
     office which la subject to being filled by
     appointmentof the board of trustees pursuant
     to Article 2777-1, V.C.S. However, until the
     board of trustees fills the vacancy by appolnt-
     ment or someone is elected to such office, the
     Incumbent Is entitled to continue to~functlon
     In the capacity of school trustee.




                              CRA      C. MARTIN
                              Att rney General of Texas
Prepared by W. 0. Shultz
Assistant Attorney Oeneral
APPROVED:
OPINION COM#lITTEB
Kerns Taylor, Chairman
George Kelton, Vice-Chairman
James Quick
Jack Sparks
David Longorla
Michael Stork
HAWTHORNN PHILLIPS
Executive Assistant
W. V. GIEPPBRT
Staff Legal Assistant




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