Gerald        C. Mann




         Hon. A. M. Pribble                        Opinion NO. O-2446
         county   Attorney                         Be:   Validity     of school superintend-
         Goldt hwlaite , Texas                     ent’s ,contract     where a board member
                                                   was-misled     causing   him not to attend
                                                   meeting of board at which contract
         Dear Sir:                                 was made.
                         In your      letter      of May 30,      1940,     you submit       to us the
         following       facts:
                         “The president      of the board of trustees         of an in-
                 dependent     school district     told one member of the board
                 on being asked if a meeting           of the school board would
                 be held that night replied          that he knew of no reason
                 why there     should be a meeting.         However he had already
                 notified    the other members of the board and a called
                 meeting of the board was held that night and the trus-
                 tee mentioned      above and another       trustee   were absent.
                 The other four trustees         met with the president         of the
                 board and the question         of rehiring      the superintendent
                 of the school was raised,         and two votes were cast for
                 rehiring    the superintendent        and two against.        The pres-
                 ident then voted to rehire          the superintendent.         The
                 trustee    mentioned    above would have voted not to rehire
                 the superintendent      .I1
                         You request           our opinion     as to whether        this     contract
         is    a legal    one.
                         We   quote    from 34 Texas          Jurisprudence,        p.     457,   as fol-
         lows:
                         In order that the acts of a governmental                          or admin-
                 istrative     board may be valid   it must act as a                       body.
                 Consent or acquiescence     of, or agreements      by,                    the in-
                 dividual    members acting  separately    and not as                      a body do
                 not bind the board or the political        subdivision                       which
                 they represent,     and all persons are chargeable                        with
                 knowledge that such is the case.”
                         From Mechem on Public               Offices      and Officers,       pp.   375-
         6, we quote:

                      Where,   however,  a trust                 or agency is       created  by
                 law or is public  in its nature                  and requires       the exercise
Hon.    A. M. Pribble,      page    2   (O-2446)


        of deliberation,        discretion       or judgment,    whether   it be
        judicial     or m-judicial             in its character,      the rule
        is otherwise,       and while all of the trustees,            agents
        or officers,       except where the law makes a less number
        a quorum, must be present            to deliberate      or, what is
        the same thing must be duly notified               and have an oppor-
        tunity   to be present,         yet,   except where the law clearly
        requires     the joint     action    of them all,     it is well set-
        tled that a majority          of them, where the number is such
        as to admit of a majority,             if present,    may act and
        that their      act will be deemed the act of the body....
               I’....
               ‘;The act of the majority          can only be upheld,      how-
        ever, -when the conditions           named exist.      For if the
        minority    took no part in the transaction,             were ignorant
        of what was done, gave no implied              consent   to the action
        and were neither       consulted      nor had any opportunity       to
        exert their     legitimate      influence    in determining     the
        course to be pursued,         the action     of the majority     will
        be unavailing.     I’
              We quote from the Amarillo  Court              of Civil   Appeals          in
City    of Floydada   vs. Gilliam, 111 S.W. (2)              761,  as follows:
                ,I . ..The statute    does not provide      how the expression
        shall.be        made, but it is well settled        that the govern-
        ing authorities         of cities,    as  well   as boards  of direc-
        tors of corporations           and other representative      bodies,
        can express        themselves     and bind the institution      which
        they represent         only by acting     together    in a meeting    duly
        assembled..       .‘I
             From King vs.         Guerra,    1 S.W.(2) 373,        San Antonio
Court    of Civil Appeals,         we take    the following:
                “It is true,     as a matter        of course,‘that        the
        friendly    expressions       obtained      from the mayor and two
        commissioners,       in private       conversations--whether           made
        casually,     upon impulses       of the moment and without             defi-
        nite knowledge or consideration                of the true facts        of
        the proposed      projects,      or whether       given deliberately
        and after     mature consideration            of all the ascertain-
        able facts--     can have no bearing           upon the case.         Even
        had they been so disposed,             which they deny is the case,
        those officials,        acting     singly,     individually,       and sep-
        arately,    at different       places      and times and upon dlffer-
        ent occasions,       could not bind themselves               in their   offi-
        cial capacity,       nor the board of city commissioners                  as a
Ron.   A. M. Pribble,      page    3    (O-2446)


       body, nor the      government      of the     city,    nor    any of its
       departments...."
          InPeople         ;s.    Bachelor,      22 N.Y.     128,    the   Supreme      Court
of New York said:
               "It is'not   only a plain dictate      of reason,   but            a
       general     rule of law, that no power or function        in-
       trusted     to a body consisting     of a number of persons,
       can be legally      exercised   without  notice   to all the
       members composing such body."
             We   cite also      State vs. &ion         Light, Heat        & Power Co.,
182 N.W. 538,      N. Dak.;      P. & F.R.Ry.Co.        vs. Com'rs.,        16 Kan.302.
             We think it is plainly           contemplated       by Article   2781,
Revised    Civil Statutes       that in employing         teachers    and superin-
tendents    the Board of *rustees         must meet and act as a board,             in
accordance     with general     rules.      Residents     of the district      were
entitled    to have this      contract     acted upon at a meeting          of the
Board,    at which all members were present             or had been given no-
tice    and an opportunity      to be there.         We note that the presi-
dent of the board did not advise the member unequivocably                      that
there would be no meeting,           but simply stated         that  "he knew of
no reason why there        should be a meeting."            This statement     would
naturally     give the impression        that there-would         be no meeting
and we think your letter          implies     that it was so understood          by
the member and that it caused his absence.                   If such be estab-
lished    as true,   it is our opinion          that the contract       cannot be
enforced.
              Our answer      to your    question     therefore       is   a negative
one.
                                              Very truly     yours
APPROVEDJUN 11, 19443
Ls/ Ge~rald. C. Mann                          &l!TORNEYGENERALOF TEXAS
ATTORNEYGEI$ERALOF TEXAS
                                              By /s/ Glenn R;-Lewis     '~
APPROVED: CP~~~ON-CO~~TTEE                    Glenn R. Lewis, Assistant
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