Untitled Texas Attorney General Opinion ( 2016 )

KEN PAXTON
ATTORNEY GENERAL OF TEXAS
February 3, 2016
The Honorable Larry Phillips Opinion No. KP-0062
Chair, Committee on Homeland Security
and Public Safety Re: Questions relating to the pos1t10n of
Texas House of Representatives Vice Chairman on the Maverick County
Post Office Box 2910 Hospital District Board of Directors
Austin, Texas 78768-2910 (RQ-0044-KP)
Dear Representative Phillips:
On behalf of the Maverick County Hospital District ("District") you ask three questions
concerning the District's governance. 1 You first ask our opinion on the validity of the position of
vice chair. Request Letter at 2. Assuming its validity, you then ask whether the vice chair
automatically becomes the acting chair upon the chair's resignation. Id. Finally, you ask whether
the vice chair continues as the acting chair until the District's board of directors appoints a new
chair or until the expiration of the resigned chair's term. Id. at 3.
As background, you tell us that the chair of the District resigned from the board of directors
("board"). See id. at 2. You state that at a subsequent board meeting, "a dispute arose among the
Board members as to whether the Vice Chairperson should automatically move into the
Chairperson position." Id. You inform us that "[a] director also disputed whether the Vice
Chairperson position was valid since the District's enabling legislation, Chapter 1118 of the Texas
Special District Code, did not specifically provide for the position of Vice Chairperson, even
though the Bylaws authorize such a position." Id. With this background, we consider your
questions.
The District is a hospital district created under the authority of article IX, section 9 of the
Texas Constitution by special law codified at Special District Local Laws Code chapter 1118. See
TEX. SPEC. DIST. CODE §§ 1118.001-.253, .002 (noting creation under article IX, section 9 and
citing Act of Apr. 29, 1965, 59th Leg., R.S., ch. 172, § 1, 1965 Tex. Geri. Laws 360, 360); see also
TEX. CONST. art. IX, § 9. Such a district may exercise only those powers that are "expressly
delegated to it by the legislature, or which exist by clear and unquestioned implication." Tri-City
Fresh Water Supply Dist. No. 2 v. Mann, 142 S.W.2d 945, 946 (Tex. 1940); see also Jackson Cty.
Hosp. Dist. v. Jackson Cty. Citizens for Continued Hosp. Care, 669 S.W.2d 147, 154 (Tex. App.-
1
See Request Letter from Honorable Larry Phillips, Chair, House Comm. on Homeland Sec. & Pub. Safety, to
Honorable Ken Paxton, Tex. Att'y Gen. at2-3 (Aug.14, 2015), https://www.texasattorneygeneral.gov/opinion/requests-
for-opinion-rqs ("Request Letter").
The Honorable Larry Phillips - Page 2 (KP-0062)
Corpus Christi 1984, no writ). Implied powers are those that are "indispensable to .... the
accomplishment of the purposes" for which the special district is created. Tri-City Fresh Water
Supply Dist. No. 2, 142 S.W.2d at 947.
Article IX, section 9 generally provides that the purpose of a hospital district is to provide
"medical and hospital care for its needy inhabitants." TEX. CONST. art. IX,§ 9; see also TEX. SPEC.
DIST. CODE§ 1118.lOl(a)-(b) (providing that "district has the responsibility of undertaking [and
shall undertake] any measure, consistent with Section 9, Article IX, ... and this chapter, that the
board determines is necessary to provide hospital and medical care to the district's needy
residents"). Yet, article IX, section 9 is silent regarding the governance of the hospital districts
created thereunder. See TEX. CONST. art. IX, § 9. Relevant to the District's governance, chapter
1118 of the Special District Local Laws Code provi~es that the District's board, "elected by district
voters," shall consist of five members and that the "board shall elect from among its members a
·president, a secretary, and a treasurer." TEX. SPEC. DIST. CODE§§ 1l18.051(a), .055. Because of
the use of the word "shall," section 1118.055 imposes a mandatory requirement that the District
elect a president, secretary, and treasurer. See id. § 1118.055; see also TEX. Gov'T CODE§ 311.016
("'Shall' imposes a duty."). The silence of section 1118.055 regarding the office of vice chair
means only that the District is not required to elect a vice chair: It does not serve as a prohibition
against the election of a vice chair.
Section 1118.105 authorizes the District to adopt rules "for the efficient operation of the
district." TEX. SPEC. DIST. CODE§ 1118.105(a); see also id. § 1118.101. This office has said that
special districts and political subdivisions may adopt governance rules under such authority
provided that the rules are consistent with other applicable constitutional and statutory provisions.
See Tex. Att'y Gen. Op. Nos. GA-0412 (2006) at 2 (stating that hospital district may adopt
Robert's Rules of Order to govern its meetings), DM-228 (1993) at 3 (recognizing that a
commissioners court may adopt reasonable rules that are consistent with relevant law to govern its
meetings). You tell us that pursuant to this authority the District has adopted bylaws to provide
for the governance of the District, which bylaws provide that Robert's Rules of Order shall govern
parliamentary procedure. See Request Letter at 5-6. The bylaws provide for the election of a vice
chair. See id. at 4; see also id., Appendix D § 5.1 (Bylaws, Board of Directors, Maverick Cty.
Hosp. Dist.) (on file with the Op. Comm.). To the extent the position of vice chair promotes
efficient operation of the District by allowing for the continued governance of the board in the
absence of the chair and thus serves the District's purpose of providing medical and hospital care
for the needy inhabitants, providing for the office of vice chair is within the scope of the District's
implied powers. Moreover, a rule adopted pursuant to section 1118.105 to provide for the election
of a vice chair differs from but does not conflict with section 1118.055, which neither requires nor
prohibits the position of vice chair. See Tex. Att'y Gen. Op. No. GA-1079 (2014) at 3 (recognizing
that an irreconcilable conflict involves a direct conflict such that "it is impossible to comply with
both provisions at the same time") (citing State v. Jackson, 370 S.W.2d 797, 800 (Tex. Civ. App.-
Houston [1st Dist.] 1963), ajj"d, 376 S.W.2d 341 (Tex. 1964)); see also Tex. Att'y Gen. Op. No.
GA-0369 (2005) at 4 ("Mere difference is insufficient to constitute an irreconcilable conflict.").
Accordingly, a court would likely conclude that the position of vice chair on the District's board
is valid.
The Honorable Larry Phillips - Page 3 (KP-0062) ,
Your remaining questions concern the role and duties of the vice chair upon the resignation
of the chair. Request Letter at 2-3. Chapter 1118 provides that directors serve staggered four-
year terms. TEX. SPEC. DIST. CODE § 1118.051(b). It also provides that the board shall elect its
officers at the first meeting after each director's election. Id. § 1118.055. Thus, if some directors
are elected by District voters in an election every two years, then the board shall elect its officers
as frequently. But as chapter 1118 does not provide for the position of vice chair, it does not
expressly outline the role of the vice chair after the resignation of the chair. Thus, your remaining
questions involve only the District's governance documents and are not questions determined
purely by reference to Texas statutes or the constitution. The bylaws of a special district are
analogous to the charter of a municipality in that they are the governing documents for the different
entities. And this office typically does not construe municipal charters out of deference to the city
official's authority to construe their own charter. Tex. Att'y Gen. Op. No. JC-0035 (1999) at 3.
Accordingly, we do not address these questions and instead leave it to the District's board to
determine the role and duties of the vice chair upon the resignation of the chair.
The Honorable Larry Phillips - Page 4 (KP-0062)
SUMMARY
A court would likely conclude that the position of vice chair
on the board of the Maverick County Hospital District is valid.
Absent guidance from chapter 1118 of the Special District
Local Laws Code, questions regarding the role and duties of the vice
chair upon the resignation of the chair are for the District's board to
resolve.
Very truly yours,
~?~
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
BRANTLEY STARR
Deputy Attorney General for Legal Counsel
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee