Untitled Texas Attorney General Opinion ( 1941 )

Honorable Charts 8. McMllaa County Attorney, &a Atqu8t.b County Sua Au~tiae, Teaar Dew sir: opitiion No. 04733 Reti- Pwvar of the County Rchool I ! Truotea8 to qpaint A trustee 5wh e r etwo lloctioa8 hava re- ivulkd in~tio votee. and rokted :quo8Uono. 4 W* halo your letti? of Jut&eZB.: 1941, &Which you ask ottr opinion ti certain quorlionr raiding t$ tha Wbito Rock Common School District of San Augustine Coyty., We appreciate the citation of 8uthoritiea and tke dircur&m coatnkod in your latter. Your firrt quertloa roldes to t&e right of the County ZjchooA Trustees to appoint a trustee of Y;hite R*k Common school District, under %ha following cSraumstute*ot ‘: ‘In t&i ‘White Rock Common &hod District of Ran Attguotiuo Cmtnty, Totas an election was held to elect one trustee for the next throo years, the slaction being held at ths aamo tiDu as ail other common rchool dir- trict truster elections were held throughout the State. Thio olectioa nrulted ln a tie; anotkmcG&ion was held and it also tcrultod in * ties the Countyl Board of Scia001 Trustooo then appointed a peraoa to fiti @is of&e, and who hso qualjfied.. Frorn~ your letter it also ttypoaro tlbt the truatur whose term Ime orpired hrr coatknued to act IIEtrustee, and that the olfiice ha* not become vacant unlerr it was vacated by the ~OxpiraUon d the term of ~offlcs or the fact that each d tha two olocti6ho #or a flow trustee re- sulted kr a tie. Our opinioa Ir that the County School T@totrer had no auth- ority to appoint a truatec aftur the two ele~tiono had rslvulted in a tie wta. Under the ruling in our opinkm No, Q-17, the truetea continuns to hol,d his office until him tucceo~or hm bee&klegally elected ond qunlifice. Them ir therefore no vacancy in the office rroulting from tho oxpira- tion of the term of offieo. Nor would the fact tht ho election@ havm ro- aulted in tia vote@ ease a ncmmy to occut. As WI) shave r&d in our opinion No. 047, a tie vote la 8a rlection #pr l trurtoe for b~commoa Honorable Charler 8. bAcMil1~~ page 2 rchool district merely ham the effect under Article 2953, Vernon% Annotated Civil Statutes, of rendering the election void and making another election nccermary. In our opinion. both electiona resulting in tie votes are void, and a new election rbould be called. as provided in Article 2953, and should be conducted aa directed in Articles 2745, 2746 and 2746a, ~orntm’s Annotated Civil Ktatutes. SQOour opinion o-17. We find no authority for the appointment of a truntee by the County School Trustees. in this situatioa. Article 2747, Vernon’8 Annotated Civil Statutes, provide8 for an appointment by “the county board of education’ only in case of a vacancy in the office; and in our opinion no vacancy has occurred, since the incumbent continues to hold the office until hi8 lc c eemo r ham been properly elected and qualm ifies. The attempt of the County School Trutttees to appoint a trusteo ie, bwofore, in our opinion, without legal authority and void. Your second question relate8 to the validity of a contract enterod into between two mombera of the district rchool board, ln- eluding the trumteo whose term had expired, with a teacher for the lnmtiayear.y In this coanection you maka the following statdmont; “Daforo the time of appointment of the trustee by the County Board. a contract warnentered into b&wean two members of the ~cbool board of the district, one whose term had not en- pirsd, and one whore term bad expired, but no one had succeeded him, with a teacher, and ouch contract was filed with the County !%perintendent. The third mambor of the school board, whose krm had not expired, did not Join in the contract.. Your question is whether the trustee whose term had lxpirod and whose s~~ces~~~ had not been elected and qualified, could lawfully join in the making of such a contract. Our opinion ir that tha trustee may Iawf* coatinue to join in such contracta until his wccosaor haa bean elected. See our Cj*inion No. C-04. Since both electiona have been void, there is no “newly elected trustee,* and under out said opinion, the trwtae may continue to act until his mtcceesor ban been Aawfully elected, inoohr as ouch contract@ arm concerned. Your third question relatem to the attempted execution of a contract by the pereon appointed by the County School Trusteea, and aaother truetoo. In this connection you make the following atate- mat1 “After the appointment of the truetee by the County Board of School Trustees, who wal a different person, and after his qualifying for ruch office, the new truetee and the trwtae who refused to join in the first contract entered into a now contract with another teacher for the sama prlod of time; the contract wao alro filed in the office of th Couatv SumrhtendoaL” . - ,.. I ,~: (. : I , Honorable. Cbarlee 8. McMillan, page 1 Your third questton in substance io whether SenatoDilA No. 126 of t&e 47th Le&teloture, Regular tission, has any effect on the validity of the contract Joined in by the trustee who holds over aftor the expiration of Ns term, in view of the attempted appointment of another trurteo by the County Doard of Gduoation and the joining by tbim appointee in the execution of a contract with another teacher. Section 1 of 6-U Bill l26, 47th k,gialature, ~eguhr Soeoion, reads aa follows: *Section 1. That trueteee of any Common School Dietrict or Coneolidated Common School District shall ham authority to make contracts for a period of time not in excess of two (2) years with prfncipals, superintendents, and teachers of said Common !ichool Diotricts or Consolidated Common ’ School Districts, provided that such contracts rhall be ap- proved by the County Superintsndent. No contract may be sianed by tb Trusteea of Commou School Dlatricte or Common Consolidated jrbool Dietricto until ths newly electad trumtea or trueteos have qualified and taken the oath of Office: Vie have already expressed our opinion that the contract Joined in by the trustee who holds over. ia lawfully authorized, +r agree with your conclusion that there is nothing in Scnata tiAA NO. 126, Iicgular Sassion, 47th Logidatura, which would affect our ruling !n our Opinion No. Q-04. The attempted appointment of the trustee by the County tioard of Lducation heing void, the atlempted contract in which this appointee joined would be void. Senate Dill No. 126 containe substantially the same provisions as Article 2740a, Vernon’s Annotated Civil Statuter, which was the basis of our Opinion No. O-04, and the changes tn the language of the rtntuta made by Sonate Dill No. 126 do not affect our conclwion as applied to the lituation,met forth in your request. We attach hereto co&o of our Opinions Noa. O-04 and 047. Very truAy yours ATTORNEY GENGRAL OF TZXAS By /a/ Jamem P. Hart Jamer *. iiart, Aeeia&nt JPN:EP$b $fr;;t;e,“:;;;,‘,‘“’ First Assistant Attorney Cionorai ENCLOSURES Approved Opinion Committee By BWB Chairman