Untitled Texas Attorney General Opinion ( 1972 )

HE ,~%TOKNEY GENERAL
OFTEXAS
Honorable Bevington Reed Opinion No. M- 1081
Commissioner of the Coordinating
Board Re: Authority of the Board of
Texas College & University System Trustees of Kilgore College
P. 0. Box 12788, Capitol Station District to provide for in-
Austin, Texas 78711 terior redistricting of the
district in order that trus-
tees may be elected accordin
Dear Dr. Reed: to population.
You have requested this office to render an official opinion
concerning the authority of the Kilgore Junior College District to
subdivide the district and elect members to the Board of Trustees from
within each one of these sub-districts instead of electing all of the
trustees from the entire district at large.
Specifically, your question is as follows:
"Does the Board of Trustees have the au-
thority to provide for interior redistricting
of the district in order that trustees may be
elected according to population?"
You have stated in your letter that prior to September 1,
1969, the Board of Trustees of Kilgore Junior College District, acting
under provisions of Section 51.072(h) of the 1969 codification of the
Texas Education Code*, adopted the laws pertaining to Junior College
Districts of Texas.
Numerous amendments to this Code were enacted by the 62nd
Legislature in 1971. Included in these changes was the renumbering
of many of the Sections of the 1969 codification. Those portions of
* This first codification of the laws on education was enacted in
1969, effective September 1, 1969. Acts 61st Leg., 1969, R.S.,
ch. 889, p. 2735, H.B. 534.
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Hon. Bevington Reed, page 2 (M-1081)
the 1969 codification with which we are concerned were carried for-
ward by the 1971 amendments verbatim under different Section numbers.
We will hereinafter use the new Section numbers in making references
to the provisions of the Code which we consider.
You have enclosed with your letter a proposed resolution
which would subdivide the district into geographical areas of ap-
proximate equal populations. The proposed resolution provides that
trustees elected from, each of the districts shall be residents of the
district in which they are elected. This resolution states that the
Board of Trustees of Kilgore Junior College District is now comprised
of nine persons. The stated need for the proposed resolution is
predicated upon the purpose of complying "with decisions of the United
States Supreme Court which require that trustees should be elected in
proportion to population."
Avery v. Midland County, 394 U.S. 474 (1968) applied the one-
man, one-vote principle to county governments in Texas. The holding
was restricted, however, to the following, (P. 485)
"Our decision today is only that the Consti-
tution imposes one ground rule for the development
of arrangements of local government: a requirement
that units with general governmental powers over an
entire geographic area not be apportioned among
single-member districts of substantially unequal
population."
Hadley v. Junior College District,,-3.97U.S. 50, 252 L.Ed.Zd
45, 90 S. Ct. 791 (1970) holds that a \Sunior College District is a "unit
with general governmental powers", and that it meets the criterion set
out in Avery. However, neither of these cases stands for the proposition
that at-large elections are unconstitutional per se.
Whitcomb v. Chavis, 403 U.S. 124, 29 L.Ed.Zd 563 (1970) holds
that multi-member districts are not inherently invidious or violative of
equal protection. At-large elections are not, per se, unconstitutional,
but the test is whether or not there is an invidious discrimination
against a minority group. Dusch v. Davis,,.387 U.S. 112, 87 S. Ct. 1554
(1967).
In the absence of a finding that there exists an invidious
discrimination against some minority group in at-large elections of
Trustees~ to the, Board of the Kilgore Junior College District--in a
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Hon. Bevington Reed, page 3 (M-1081)
direct attack on the constitutionality of Section 130.082(f) of the
Texas Education Code--the statute is controlling.
Section 130.082 is captioned,
"Governing board of junior college of
other than independent school district."
Section 130.082(h) reads as follows:
"Notwithstanding anything in this code to
the contrary, the provisions of all or any part
of the laws of this state in effect immediately
prior to the effective date of this act and re-
lating to the name of any junior college district
or the name of its governing board, or to the
number of members of its governing board, or the
procedures and times of electing or choosing said
members, shall remain in effect under the follow-
ing conditions. If, at any time before the effect-
ive date of this act (but not thereafter), the gov-
erning board of any junior college district shall
specify by resolution or order the particular pro-
visions of the aforesaid laws applicable to it
which it desires to remain in effect, then such
particular provisions shall continue to apply
to said board and its district: provided that
at any time thereafter the governing board may
make this section in its entirety applicable
to it and its district by appropriate resolu-
tion or order, and thereby permanently cancel
the effect of the aforesaid particular provisions
of other laws. All resolutions and orders per-
mitted by this section shall be filed immediately
with the Coordinating Board, Texas College and
University System."
Prior to September 1, 1969, the Board of Trustees~ of Kilgore
Junior College elected to avail itself of this option and to retain
the number of trustees and the manner of their selection on its Board
of Trustees in accordance with its previous operations. The Board
of Trustees consisted of nine members and has continued to operate
with nine members by virtue of the Board's action.
Section 130.082(f), in its relevant portion reads ,as follows:
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Hon. Bevington Reed, page 4 (M-1081)
"Members of a board shall be elected at
large from each junior college district at reg-
ular elections to be called and held by the
board for such purpose, at the expense of the
district, on the first Saturday in April, in
each even-numbered year. . . ."
The precise question for our decision may thus be re-
stated: Do the provisions of Subdivision (h), supra, which authorize
board members to be selected in a manner different from the provisions
of the Act, empower the board to make additional changes after the ef-
fective date of the Act, September 1, 1969?
It appears that the legislative intent was to create uniformity
among the various junior college districts of the same class. Although
the Legislature saw fit to permit an existing Junior College District
to continue to operate under preexisting laws, we do not perceive that
it was the intention of the Legislature to allow or permit any given
Junior College District to change its mode of operation after September
1, 1969, except in strict compliance with the terms of the Education
Code. It is our opinion that it was the intention of the Legislature
that Junior College Districts, after September 1, 1969,, should operate
as they were operating on that date or in accordance with the terms of
the Education Code, and no other.
Stated another way, it is our opinion that when the Trus-
tees of the Kilgore Junior College District elected to continue op-
erating as they had before the adoption of the Education Code, their
method of operation thereby became frozen and could not thereafter
be changed, except they could elect to abandon all deviations from
the particular provisions of the Education Code and operate in toto
under that Code.
We conclude under the facts presented that the Board of
Trustees of Kilgore Junior College does not have the authority at
this time to provide for interior redistricting of the district in
contravention of the requirement of at-large elections of Trustees
pursuant,to Article 130,082(f), Texas Education Code.
SUMMARY
The Board of Trustees under the circumstances
and facts presented does not have authority to
provide for internal redistricting of the Kilgore
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.
Hon. Bevington Reed, page 5 (M-1081)
Junior College District at this time in contra-
vention of Article 130.082(f) of the Texas Educa-
tion Code.
Prepared by Robert Gauss
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
John Richards
Lewis Jones
Jack Goodman
William Craig
SAMUEL D. MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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