May 19, 1969


Honorable J. W. Edgar                Opinion No. M-397
Commissioner of Education
201 East 11th Street                 Re:   Whether a candidate who re-
Austin, Texas 78711                        ceived the highest number
                                           of votes at fan independent
                                           school district trustee
                                           election may qualify and
                                           serve as trustee If he was
                                           not a registered voter, and
Dear Dr. Edgar:                            related question.
          Your recent letter to this office requests our opinion
upon two questions related to the election of trustees of Honey
Grove Independent School District held on the first Saturday
in April of 1969.
          In accordance with applicable statutes, three trustees
were to be elected to take the place of three members of the
board of trustees whose terms of office expired upon that date.
Ordinarily the three candidates receiving the highest number
of votes would be declared elected; however, the candidate
who received the highest number of votes does not have a
Voter Registration Certificate for the year 1969.  Under
these circumstances you have asked the following questions:
          "(1) Legally, may the candidate who re-
     ceived the highest number of votes qualify and
     serve as a trustee of the school district?
           "(2) If (1) Is answered In the negative:
     Shall the school district board recognize the
     existence of a vacancy, and fill same by appolnt-
     ment thereto of a'person otherwise qualified and
     who Is a qualified voter, pursuant to Article
     2777 -11”
            Article 1.05, Texas Election Code, provides that
no person   can be a candidate for , or be elected or appointed

                            -1972-
Hon. J. W. Edgar, page 2 (M-397)


to, any public office in this State unless he be eligible to
hold such office under the Constitution and laws of this State.
This article further provides that no ineligible candidate
shall be voted upon or have votes counted for him at any elec-
tion, but that votes cast for an ineligible candidate shall
be taken into account In determining whether any other can-
didate receives the vote necessary for nomination or election.
          Article 1.06, Texas Election Code, prohibits anyone
from Issuing a certificate of election or appointment to any
person who is Ineligible to hold the particular office under
the Constitution or statutes of this State.
          The answer to your first question is dependent upon
whether the person in question Is eligible to be elected or
appointed to the office of trustee of a school district.
          Article 2776a, Vernon's Civil Statutes, provides
that 'no person shall be elected as a trustee of a sch$ol
district in this State unless he is a qualified voter.
The term "qualified voter," as used in this statute, means
that a person must be a registered voter in order to be
eligible for the office of trustee of a school district.
Oser v. Cullen, 435 S.W.2d 896 (Tex.Civ.App. 1968, error
dism. w.0.j.). The Oser case further holds that there is
no constitutional prxion    which prohibits the Legislature
from imposing this requirement as a condition for eligibility
to the office of trustee of a school district.
          You are therefore advised that, In our opinion, a
person who is not a registered voter is not eligible to qualify
and serve as trustee of a school district even though he may
receive the highest number of votes cast at a regular school
trustee election. Your first question is answered in the nega-
tive.
          Your letter does not state whether there were more
than three persons voted upon at the election in question;
however, assuming that there were, the ineligibility of one
of the three persons receiving the highest number of votes
does not result In the Inclusion of the person receiving~the
fourth highest votes among those to be declared elected to the
three trustee positions. The votes for the ineligible candidate
must be taken into account in determining which candidates re-
ceived the vote necessary for election, l-e, the three persons
receiving the highest vote, Ineligibility of one of such per-
sons does not result in the election of one receiving the next

                          -1973-
Hon. J. W. Edgar, page 3 (M-397)


highest vote. Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.W
979 (1947); DaV'iSv. Stiff, 284 S.W.2d 799 (Tex.Clv.App.
1955, no writ).
          Passing to your second question, It is a settled
rule In this State that where a term of office has ended and
there has been a failure to elect someone to fill the office,
a vacancy In such office exists within the meaning of a statute
which empowers some person or body of persons to fill vacancies
in such office by appointment. Tom v.~Klepper, 172 S.W. 721
(Tex.Civ.App. 1915, error ref.); Clark v. Wornell, 65 S.W.2d
350 (Tex.Clv.App. 1933, no writ).
          Article 2777-1, Vernon's Civil Statutes, reads in
part as follows:
          'In all independent school districts In
     the state, regardless of the number of scholastics
     enrolled, If a vacancv occurs In the board of
     trustees, the remz.iningmembers of the board of
     trustees shall fill tne vacancy until the next
     regular election for members of the board of
     trustees. . . .'
          In our opinion a vacancy exists in the office of
school trustee in the district in question and the members
of the board of trustees of the district are empowered to
fill the vacancy by appointing someone who meets the conditions
of eligibility for such office, including that of being a
registered voter.
                     SUMMARY
          A person who Is not a registered voter is
     not eligible for the office of trustee of a
     school district and may not qualify and serve
     as trustee even though he received the highest
     number of votes at the regular school trustee.
     election; under such circumstances, a vacancy
     exists In the office of trustee and the board
     is empowered to fill the vacancy by appointing
     one who is eligible to hold the office.




                                     C. MARTIN
                                   y General of Texas
                          -1974-
                                     ._




Hon. J. W. Edgar, page 4   (M-397)



Prepared by W. 0. Shultz
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
George Kelton, Vice-Chairman
Sam McDaniel
Ralph Rash
Neil Williams
Terry Goodman
W. V. GEPPERT
Staff Legal Assistant
HAWTHORNE PHILLIPS
Executive Assistant




                           -1975-