Can a sitting school board trustee be appointed to fill a vacancy on the same board in Texas?

TX AG Opinion GA-0377: Can a sitting school board trustee be appointed to fill a vacancy on the same board?

Plain-English summary

When a seat opens up on an independent school district board of trustees, Education Code section 11.060 lets the remaining trustees fill the vacancy by appointment until the next trustee election. The statute says how soon the seat must be filled, but it does not say much about who may be chosen. That is where the common law steps in.

A trustee on the Schulenburg Independent School District board resigned on March 1, 2005, with more than a year left in her term. At a later meeting, a sitting trustee, whose own term was ending in May 2005 and who was not seeking re-election, was put forward as the candidate to fill the vacated seat. The board voted three to two to appoint him, and his own vote was part of the three. Without his vote, the appointment would have failed. A state senator asked the Attorney General whether a trustee may vote for himself to be appointed to fill an unexpired term.

The Attorney General concluded the appointment was void. Under the common-law doctrine of incompatibility, one well-established rule is that officers who hold the power of appointment are disqualified from being appointed to the offices they may fill. Texas courts treat that self-appointment bar as an absolute rule, not one that depends on the particular facts. Because the board members were the ones with the appointing power, they could not appoint a sitting member of their own body to the vacancy. The office added that it made no difference whether the member voted for himself or the other members voted for him: either way the appointment was barred until his term had expired and he no longer continued in office as a holdover under article XVI, section 17 of the Texas Constitution.

Currency note

This opinion was issued in 2005. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Who this opinion affected (as of 2005)

School district boards of trustees: The opinion told boards that they could not appoint a sitting member to fill a vacancy on the same board. The choice had to be someone other than a current trustee.

The trustee who was appointed: His appointment was void as a matter of law. He could not be moved into the vacant seat while he still held office, including as a holdover after his own term expired.

Voters and residents of a school district: It confirmed that a board could not effectively reshuffle its own membership by appointing one of its sitting members into a different open seat, a result the self-appointment rule is meant to prevent.

Lawyers advising local boards on vacancies: It reaffirmed that Education Code section 11.060 does not override the common-law self-appointment bar, because a statute displaces that common-law rule only if it plainly expresses an intent to do so, and section 11.060 does not.

Common questions

Can a current school board member be appointed to a different open seat on the same board?
No. The Attorney General concluded the common-law incompatibility doctrine bars it. The members hold the appointing power, so they cannot appoint one of their own to the vacancy.

Does it matter that the member voted for himself?
No. The office said it was "inconsequential" whether the sitting member voted to appoint himself or the other members voted to appoint him. The appointment was barred either way.

Doesn't Education Code section 11.060 let the remaining trustees fill the vacancy?
Yes, but only with someone other than a sitting member. Section 11.060(a) lets the remaining trustees appoint, and the office read that as authority to appoint qualified persons other than themselves, not to self-appoint.

Could the board have appointed him after his own term ended?
Not while he held over in office. Under article XVI, section 17 of the Texas Constitution, an officer continues to perform the duties of the office until a successor qualifies, so he remained barred until he no longer continued in the office as a holdover.

What happened to the appointment that was made?
The opinion concluded it was void as a matter of law, meaning it had no legal effect.

Background and statutory framework

Education Code section 11.060 governs school district board vacancies. Section 11.060(a) provides that "[i]f a vacancy occurs on the board of trustees of an independent school district, the remaining trustees may fill the vacancy by appointment until the next trustee election," and section 11.060(d) requires that if more than one year remains in the term of the vacated position, the vacancy "shall be filled under this section not later than the 180th day after the date the vacancy occurs" (Tex. Educ. Code Ann. § 11.060(a), (d) (Vernon 1996)). Beyond those requirements, the Education Code gives no further instructions on how to fill a board vacancy by appointment.

The Attorney General explained that the board's appointment power is nevertheless subject to the common-law doctrine of incompatibility, which in one of its aspects prohibits self-appointment (Ehlinger v. Clark, 8 S.W.2d 666, 674 (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," and "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. of Texas v. Naples Indep. School Dist., 30 S.W.2d 703, 706 (Tex. Civ. App.-Texarkana 1930, no writ)). The courts state the principle "broadly as an absolute rule," not limited by the facts (Tex. Att'y Gen. LO-94-020). The office noted it had twice concluded that the self-appointment bar prevents a sitting member of a body from being appointed to fill a vacancy on that body itself (Tex. Att'y Gen. Op. Nos. C-452 (1965); O-789 (1939)).

A statute can overcome the common-law doctrine if it stays within constitutional bounds and plainly expresses such an intent (St. Louis Southwestern Ry. Co. of Texas, 30 S.W.2d at 706). The office found that neither section 11.060(a) nor any other statute expressly overcomes the self-appointment prohibition here; section 11.060(a) merely permits the board to appoint qualified persons other than themselves. The appointment was therefore void as a matter of law, and the sitting member remained barred until his term had expired and he no longer continued in office as a holdover officer under article XVI, section 17 of the Texas Constitution (Tex. Const. art. XVI, § 17; Tex. Att'y Gen. Op. Nos. JM-934 (1988), O-410 (1939); Tex. Att'y Gen. LO-97-047, LO-92-8).

Citations

Statutes and constitutional provisions:

• Tex. Educ. Code Ann. § 11.060(a), 11.060(d) (Vernon 1996)
• Tex. Const. art. XVI, § 17

Cases:

• Ehlinger v. Clark, 8 S.W.2d 666 (Tex. 1928)
• St. Louis Southwestern Ry. Co. of Texas v. Naples Indep. School Dist., 30 S.W.2d 703 (Tex. Civ. App.-Texarkana 1930, no writ)

Other authorities:

• Tex. Att'y Gen. Op. Nos. JM-934 (1988), C-452 (1965), O-789 (1939), O-410 (1939)
• Tex. Att'y Gen. LO-94-020, LO-97-047, LO-92-8

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0377
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2005/ga0377.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

November 28, 2005

The Honorable Ken Armbrister
Chair, Committee on Natural Resources
Texas State Senate
Post Office Box 12068
Austin, Texas 78711-2068

Opinion No. GA-0377

Re: Whether a school board trustee may vote to appoint himself to fill a board vacancy created by 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.[1] 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, supra note 1, at 1. 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 term. 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. § 11.060 (Vernon 1996). Section 11.060(a) provides that "[i]f a vacancy occurs on the board of trustees of an independent school district, the remaining trustees may fill the vacancy by appointment until the next trustee election." Id. § 11.060(a). Additionally, section 11.060(d) requires that "[i]f more than one year remains in the term of the position vacated, the vacancy shall be filled under this section not later than the 180th day after the date the vacancy occurs." Id. § 11.060(d). Beyond these requirements the Education Code contains no further instructions on how to fill a board vacancy by appointment.

The Board's power to appoint an individual to fill a vacancy on the board is, nevertheless, subject to the common-law doctrine of incompatibility, which in one of its aspects prohibits 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." Id. 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. of Texas v. Naples Indep. 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 Ry. Co. of Texas, 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. of Texas, 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 from 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. of Texas, 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. of Texas, 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, O-410 (1939) at 9; Tex. Att'y Gen. LO-97-047, at 4, LO-92-8, at 2; see also TEX. CONST. art. XVI, § 17.

                                   SUMMARY

                    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 board to fill a vacancy on the board created by the resignation of another trustee.

                                         Very truly yours,

GREG ABBOTT
Attorney General of Texas

BARRY R. McBEE
First Assistant Attorney General

NANCY S. FULLER
Chair, Opinion Committee

Daniel C. Bradford
Assistant Attorney General, Opinion Committee

Footnotes

[1] See Letter from Honorable Ken Armbrister, Chair, Committee on Natural Resources, Texas State Senate, to Honorable Greg Abbott, Texas Attorney General (June 20, 2005) (on file with Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter]; see also Brief from Nancy K. Harlan, Attorney, Morrison & Associates, P.C., to Honorable Greg Abbott, Texas Attorney General (July 22, 2005) (on file with Opinion Committee) [hereinafter Morrison Brief].

[2] A brief filed in response to this request argues incorrectly that "the underlying rationale of the [self-appointment prohibition] is to prevent . . . having a person hold two positions where one position might control the other in some way" and thus in this instance the doctrine is irrelevant. See Morrison Brief, supra note 1, at 2. As we 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.