Untitled Texas Attorney General Opinion ( 2005 )

ATTORNEY GENERALOFTEXAS
GREG ABBOTT
November 28, 2005
The Honorable Ken Armbrister Opinion No. GA-0377
Chair, Committee on Natural Resources
Texas State Senate Re: Whether a school board trustee may vote to
Post Office Box 12068 appoint himself to fill a board vacancy created by
Austin, Texas 7871 l-2068 the resignation of another trustee (RQ-0350.GA)
Dear Senator Armbrister:
You inform us that a Schulenburg Independent School District Board (the “Board”) trustee
resigned from her office on March, 1, 2005, with more than a year remaining in her term.’ At a
subsequent Board meeting, a sitting trustee -~whose term would end in May of 2005 and who was
not seeking re-election -.-was presented to the Board as a candidate for appointment to the vacated
office, See Request Letter, suj~~ranote 1, at I. Relevant to your question, you note:
The appointment was favorably voted on by three members,
including the member who was being appointed to the vacated ten.
Two members voted in opposition to the appointment. Without the
appointed member’s affirmative vote, the appointment would not
have been ratified by a majority of the board members.
Id. Thus, you ask whether a trustee may vote for himself to be appointed to fill the unexpired term.
See id
In asking your question, you appropriately turn our attention to Education Code section
11.060, which governs school district board vacancies. See Request Letter, supra note 1, at 1; see
also TEX. EDUC. CODE ANN. 5 11.060 (Vernon 1996). Section 11.060(a) provides that “[i]f a
vacancy occurs on the board oftrustees of an independent school district, the remaining trustees may
fill the vacancy by appointment until the next trustee election.” Id. 5 11.060(a). Additionally,
section 11.060(d) requires that “[ilfmore than one year remains in the term of the position vacated,
the vacancy shall be filled under this section not later than the 180”’day aRet- the date the vacancy
‘See Letter from Honorable Ken Annbrister, Chair, Commiltee on Natural Resources, Texas State Senate, to
Honorable Greg Abbott, Texas Attorney General (June 20, 2005) (on file with Opinion Committee, ako available nf
htcy:/!~~~~~~,.oag.srsle.tx.us) [hereinafter Request Letter]; see also Brief from Nancy K. Harlan, Attorney, Morrison &
Associaies, P.C.; to lfonorable Greg Abbott, Texas Attorney General (July 22,2005) (on file with Opinion Conunittee)
[hereinafter Monison Brief].
The Honorable Ken Armbrister - Page 2 (GA-0377)
occurs.“ Iii. $ 1 1.060(d). Beyond these requirements the Education Code contains no further
instructions on ho\v to fill a board vacancy by appointment.
The Boat-d’s power to appoint an individual to fill a vacancy on the board is, ne~erthelessl
subject to the common-law doctrine of incompatibility, which in one of its aspects pi-ohibits self-
appointment. See Ehlinger v. Clark, 8 S.W.2d 666 (Tex. 1928). It is well established that “all
officers who have the appointing power are disqualified for appointment to offices to which they
may appoint.” It1. at 674. Indeed, “it is contrary to the policy of the law for an officer to use his
official appointing power to place himself in office. .” St. Louis Southwestern Ry. Co. ofTexas
1’.N~lples I&p. School Dist., 30 S.W.2d 703, 706 (Tex. Civ. App.-Texarkana 1930, no writ)
(citations omitted). This doctrine, moreover, is not limited by the facts before it; rather, “the courts
state the principle broadly as an absolute rule.” Tex. Att’y Gen. LO-94-020, at 2 (citing St. Louis
Southwestern i?~. Co. ofTexas, 30 S.W.2d at 703); see Tex. Att’y Gen. Op. Nos. JM-934 (1988)
at 3; C-452 (1965) at 3-4; O-789 (1939) at 3. A statute, however, may overcome this common-law
doctrine so long as the statute is within constitutional bounds and plainly expresses such an intent.
See St. Louis Southwestern Ry. Co. ofTexas; 30 S.W.2d at 706.
Here, the Board appointed a sitting trustee to fill a vacant position on the Board itself. These
facts are not unique. This office has twice determined that the self-appointment aspect of the
common-law incompatibility doctrine bars a sitting member of a body from being appointed to fill
a vacancy on the body itself. See Tex. Att’y Gen. Op. No. C-452 (1965) (commissioners barred by
doctrine from appointing sitting commissioner to fill court vacancy resulting horn county judge’s
resignation); Tex. Att’y Gen. Op. No. O-789 (1939) (commissioners barred by doctrine from
appointing sitting commissioner to court vacancy resulting from county judge’s death). But even
if these facts were unique, it would not change the absolute nature of the rule.2 Moreover, neither
Education Code section 11.060(a) nor any other statute expressly overcomes the common-law
prohibition against self-appointment in this situation; section 11.060(a) merely permits the Board
to appoint qualified and suitable persons other than themselves, see St. Louis Southwestern Ry. Co.
ofTam, 30 S.W.2d at 706 (finding that a statute which permitted a school board of trustees to
appoint individuals to a board of equalization did not overcome self-appointment prohibition and
therefore the trustees could not appoint themselves). The appointment is void as a matter of law.
Ehlinger, 8 S.W.2d at 673-74; St. Louis Southwestern Ry. Co. ofTexas, 30 S.W.2d at 706; Tex. Att’y
Gen. Op. No. C-452 (1965) at 4. Thus, it is inconsequential whether the sitting member votes to
appoint himself to the office or other members of the board vote to appoint him to the office. The
sitting member’s appointment is barred until his term has expired and he no longer continues in the
office as a holdover officer under Texas Constitution article XVI, section 17. See Tex. Att’y Gen.
Op. Nos. JM-934 (1988) at 4,0-410 (1939) at 9; Tex. Att’y Gen. LO-97-047, at 4, LO-92-8, at 2;
see also TEX. CONSTart. XVI, 5 17.
*A brieffiled inresponse to this request argues incorrectly that‘% underlying rationale ofthe [self-appointment
prohibition] is to prevent. having a person hold two positions where one positionmight control the other in some way”
and thus in this instance the doctrine is in-elevant. See Morrison Brief, supra note 1, at 2. As w’e have explained, the
prohibition against self-appointment is a literal and absolute prohibition based on long-standing policy and not limited
by the facts. See supra at p. 2.
‘The Honorable Ken Armbrister Page 3 (GA-0377)
The self-appointment aspect of the common-law doctrine
of incompatibility voids the appointment of a sitting school board
trustee by a vote of the school boat-d to fill a vacancy on the board
created by the resignation of another trustee.
BARRY Ii. MCBEE
First Assistant Attorney General
NANCY S. FULLER
Chair, Opinion Committee
Daniel C. Bradford
Assistant Attorney General; Opinion Committee