Untitled Texas Attorney General Opinion ( 1952 )

. ”
August 29, 1952
Hon. J. W. Edgar Opinion No. V-1519
Commissioner of Education
Texas Education Agency Re: Whether an Independent
Austin, Texas school district trustee
vacates his office when
called into military
Dear Sir: service.
We refer to your request for an opinion of
this office concerning the following submitted matter:
A resident citizen was, elected a trus-
tee of the Bells Independent School District
_-
board in April 1951, for a term of three
and took the oath of office. Art.
~e,;~~'v.c .s. He served as trustee until
June i951, at which time he ~was called back
into military service. He did not resign
as trustee. He maintained his residence in
the district, and his family resided in the
community during his absence in another
State Andyoverseas. He has now returned to
the Bells district and claims his office as
trustee.
Based on these facts you ask the follow-
ing :
1. Does a duly elected board member of
an independent school district vacate his
office of trustee when called into military
service when such:service requires that he
be absent from the school district and the
State for approximately one year? If your
answer to this question iti.&
2. Way a board member appoint a qualified
individual to serve In his absence?
- Under the facts submitted, the trustee in
queation having been recalled Into the armed service
and having served but one year, we assume for purposes
Hon. J. W. Edgar,) page 2 (V-1519)
of this opinion that he was not serving In one of tRe,regular
military establishments but was recalled to duty as a
reservist.
Section 1,4of Articl,eXVI of the Constitution
of Texas provides In part as fOllOws:
"All civil officers shall reside wlth-
in the State; and all district OP county
officers within their districts or counties,
and failure to comply with this condi-
ti&'shall vadate the office so held."
A trustee of an independent school district Is,
as such, a public civil officer. He serves without com-
pensation, but he holds as trustee a civil office of
trust. 37 Tex. Jur. 935, Schools, Se~c.68; Attsy Gen. OpO
v-834 (1949). The right of a person to serve In the re-
serve corps of the United States and to hold at the same
time a civil office of this State, regardless of whether
his military service is in this country or overseas, has
been recognized and sustained by our Texas Supreme Court.
Carpenter v. Sheppard, 135 Tex. 413, 145 S.W.2d 562
1940 td 312 j Cramer v. Sheppard, 140
Tex. !?7ierlg7i?k 2d l!;"~l$!~] Ex par% Templeton, 143
Tex. 281: 186 S.W:'2d68 (1945):'
The Carpenter case held that by virtue of the
provisions of Sections 33 and 40 Of'Artlcle XVI of the
Constitution of Texas, the relator did not vacate his
office as a member and Chairman and Executive Director
of the Texas Unemployment Compensation Commission when
as a member of the National Guard he was called into
the military service of'the United States and appointed
an officer therein. Further, it was held that his ap-
pointment as Major in the National Guard in the Army of
the United States did not violate Section 12 of Article
XVI of the Constitution.
The Cramer case held that a district judge
who was commissioned a Major in the Officers' Reserve
Corps of the United States did not vacate this office
of district judge by accepting the commission.
And in Ex parte Templeton it was held that a
district judge who voluntarily enlisted in the United '
States Naval Reserve and was subsequently re-elected
district judge and took the oath of office but continued
Hon. J. W. Edgar, page 3 (v-1519)
to serve in the Navy did not thereby vacate the of-
fice of district judge.
While no.specific reference to Section 14 of
Article XVI, supra, was made in the cited three cases,
it is observed that there was strongly urged to the
court therein the great inconveniences which might inure
to the public should the court fall to declare vacated
the civil offices there In question. The obvious dis-
regard of the court to consider In conjunction with the
question before it; the provisions of Section 14 Of
Article XVI, leads, we think, to the conclusion that
the residence requirements of Section 14 were not in-
tended to apply to such situations as the court had
before It.
Whether absence from one's place of residence
amounts to an abandonment of that residence depends
largely upon the person's intention and the purpose for
which he is absent. Temporary absence does not neces-
sarily deprive a person of his residence where he Intends
to return after the cause for his absence has ceased to
exist. Aldridge v. Hamlin, 184 S.W. 602 (Tex. Civ. App.
j Clark V. Stubbs, 131 S.W.2d 663 (Tex. Civ. App.
; McGehee v. Boedeker, 200 S.W.2d 697 (Tex. Civ. App.
In Bray V. Peden, 213 S.W.2d 469 (Tex. Civ. App.
it was held that a person has not abandoned his
residence merely because he is temporarily absent on ac-
count of his health, or to serve his government, or
because his trade or business or profession takes him
elsewhere for varying periods of time. We also call your
attention to Section 9 of Article XVI of the Constitution,
which reads:
"Absence on business of the State, or
of the United States, shall not forfeit a
residence once obtained, so as to deprive
any one of the right of suffrage, or of being
elected,or appointed to any office under the
exceptions contained in this Constitution."
Here we have a resident citizen of the Bells
Independent School District, duly elected a trustee there-
of, who qualified as such, and very shortly after his
election was recalled into the military service. He did
not abandon his residence in the district but returned at
his earliest opportunity to his family still residing
therein. Upon his return he immediately sought to assume
the public office which he had neither intentionally or
Hon. J. W. Edgar, page 4 (V-1519)
expressly resigned or abandoned. The term of his of-
fice had not exvired. Under these submitted facts it
cannot be said that 'he ever Intended to move from the
distric,tor abandon the office. Hodgkin8 v. Sansom,
135 S.W.2d 759 (Tex, Civ. App. 1930, error dism.,~judg.
car.); Att'y Gen. Op. V-26 (1947).
Under these facts, It is our opinion that the
trustee In question did not vacate his office as a mem-
ber of the board of trustees of the Bells Independent
School District, his absence from the district being
solely in response to recall for military services.
The seven-member board of trustees of the Bells
Independent School District is a creature of statute.
Art. 2774a, V.C.S. 37 Tex. Jur. 938, Schools, Sec. 70.
As such, It has those powers only as are specially given
or are lmnlied as a necessarv incident to those exoresslv
conferred; Geffert v. Yorktown Independent School‘Dist.;
290 S.W. 1083 (Tex. Comm. App. 1927). Although by stat-
ute, Article 2777, V.C.S., the remaining members of an
independent school district board are expressly authorized
to fill vacancies on a board, we can find no power implied
therein which would authorize the board to nominate a
substitute to serve in the place of a board member (there
being no vacancy) who istemporarily absent from the dls-
trict. Since under Article 14, V.C.S., a quor'umof the
board is all that is necessary to transact its business,
its governmental functions are not rendered inoperative
by his temporary absence in military service.
Accordingly, it is our opinion that the remain-
ing members of the board, under the situation submitted,
are without authority to appoint a person to serve in
the absence of the trustee in question, his recall into
the military service not having created a vacancy on the
board.
SUMMARY
A trustee of an independent school dis-
trict does not vacate his office as a member
of the board when his absence from the dis-
trict is occasioned solely by his being
called into military service as a reservist.
The remaining members of the board of
trustees are without authority to nominate
a person to serve in the place of a board
Hpn. J.,W. Edgar, page 5 (V-1519)
member called into military service as a
reservist, because his absence from the dis-
trict under such circumstance does not con-
stitute a vacancy.
,yoUrs very truly,
AEPRIIVEDr: .PRTCXDANIEL
Attorney General
J. C. Davis, Jr.
County Affairs Division
Mary K. Wall BY
Reviewing Assistant Chester E. Ollison
Assistant
Charles D. Mathews
First Assistant
CEO:am