 Honorable  S. B. Buchanan,       Jr.         Opinion     No. O-4106
.County Attorney
 Val Verde County                             Re:     Vacancies   in office   of county
 Del Rio, Texas                                       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 ap-
point 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 qual-
       ified voters of the common .and consolidated           independent
       school districts    of the county, and one from each Commis-
       sioners’ Precinct     by the qualified    voters of each’Commis-
       sione.rs’ Precinct;    who Shall hold office for a term of tGo
       years.    The time for such election shall be the first Satur-
       day 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 pre-
       pare 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 vacan-
       cies 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        pre-
     cincts.   They shall be of good moral character,     able to read
     and speak the English language,    shall be persons of good edu-
     cation, 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 ques-
     tions 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 trus-
     tees, the Commissioners’     Court of said county is hereby auth-
     orized 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 ap-
     pointed shall have and exercise    all the rights and powers con-
     ferred 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 re-
     spect 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 resigna-
tion. In McCall    v. Whaley, 115 SW. 658, the court made the following state-
ment:

           “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   trus-
tee 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 “re-
appointed” 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 pre-
sumed    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    there-
           in 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           there-
           in. 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 ap-
pointed to fill a vacancy in the county board would hold office for the unex-
pired 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. Constitu-
tion 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 in-
cumbent’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, Consti-
tution 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 elec-
tion 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
