Untitled Texas Attorney General Opinion ( 2015 )


Menu:
  •                                             February 11, 2015
    The Honorable Andrew Lucas                              Opinion No. KP-0002
    Somervell County Attorney
    Post Office Box 1335                                    Re: Determination of the terms of office for
    Glen Rose, Texas 76043                                  county hospital district board members who
    received the same number of votes in the initial
    election (RQ-1213-GA)
    Dear Mr. Lucas:
    You ask about the determination of the terms of office for members of a county hospital
    district board of directors when, in an at-large election of the members of the initial permanent
    board, two of the members received the same number of votes. 1 You inform us that the Somervell
    County Hospital District (the "District") was created pursuant to chapter 286 of the Health and
    Safety Code. Request Letter at 1. The petition to create the District calls for a board of seven
    directors who are to be elected at large. See 
    id., Exhibit A
    ("Petition to Create the Somervell
    County Hospital District") (on file with the Op. Comm.).
    Section 286.042 allows a chapter 286 hospital district to elect its initial permanent directors
    either at large, by place, or by a hybrid of precinct and at-large positions. TEX. HEALTH & SAFETY
    CODE ANN. § 286.042(b)-(d) (West 2010). For a district that elects its directors at large under
    subsection (b), "the appropriate number of candidates receiving the highest number of votes at the
    initial election of directors are directors for the district." 
    Id. § 286.042(b)(1
    ). In an at-large district,
    "the number of directors equal to a majority of the directors who receive the highest number of
    votes at the initial election serve for a term of two years; and ... the remaining directors serve for
    a term of one year." 
    Id. § 286.042(b)(2)-(3).
    Thereafter, directors serve two-year terms, so that
    the district holds an election each year to select the appropriate number of successor directors for
    a two-year term. 
    Id. § 286.042(e).
    You state that at the May 2014 election of the initial permanent board, seven persons
    received the highest votes out of a field of eighteen candidates. Request Letter at 1. Two of the
    seven received the same number of votes, however, tying for the fourth-highest number of votes.
    
    Id. Because seven
    candidates for seven at-large positions received more votes than the remaining
    candidates, the seven have been elected to office. See TEX. HEALTH & SAFETY CODE ANN.
    1See Letter from Honorable Andrew Lucas, Somervell Cnty. Att'y, to Honorable Greg Abbott, Tex. Att 'y
    Gen. (Aug. 13, 2014), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").
    The Honorable Andrew Lucas - Page 2                          (KP-0002)
    § 286.042(b)(1) (West 2010). Your question is not about who has been elected to office, but about
    the directors' terms of office. You ask whether the directors who received the same number of
    votes are part of the "majority of the directors who receive the highest number of votes" and
    therefore both serve a two-year term under section 286.042(b)(2) of the Health and Safety Code,
    or whether the District must hold a tie-breaking election under section 2.002 of the Election Code.
    Id.; Request Letter at 1-2; see also TEX. ELEC. CODE ANN. § 2.002 (West 2010).
    We first consider whether section 2.002 of the Election Code authorizes a second election
    in the present circumstances. Subsection 2.002(a) of the Election Code authorizes a second
    election only when, "in an election requiring a plurality vote, ... two or more candidates for the
    same office tie for the number of votes required to be elected." TEX. ELEC. CODE ANN.§ 2.002(a)
    (West 2010) (emphasis added). Even if the election at issue required a plurality vote, that section
    authorizes a second election only to fill an office, not merely to establish whether directors who
    have been elected will serve a one-year or a two-year term. Here, seven candidates received the
    votes required to be elected to the seven at-large director positions, and therefore, each has been
    elected to an office. See TEX. HEALTH & SAFETY CODE ANN. § 286.042(b)(l) (West 2010). No
    directors tied for the same office. Section 2.002 does not require or authorize a second election
    when there is no office to fill because the appropriate number of candidates have been elected to
    the same number of at-large positions. See Beeler v. Loock, 
    135 S.W.2d 644
    , 647 (Tex. Civ.
    App.-Galveston 1939, writ dism'd) (stating that a predecessor statute was "intended to apply in
    cases where no one was actually elected," and upholding the election of seven candidates to fill
    seven positions even though two or more may have received an equal number of votes); see also
    Countz v. Mitchell, 
    38 S.W.2d 770
    , 774 (Tex. 1931) (holding that the right to conduct an election
    must be authorized by a statute or the constitution).
    Section 286.042 of the Health and Safety Code does not prescribe how to determine the
    terms of office of members elected to a governing body when two received the same number of
    votes in an at-large election. See TEX. HEALTH & SAFETY CODE ANN. § 286.042 (West 2010).
    Subsection (b) does not explain what constitutes "a majority of the directors who receive the
    highest number of votes at the initial election." 
    Id. § 286.042(b)(2)-(3).
    The Legislature may have anticipated that the statutory mechanism it created in section
    286.042(b) would result in annual elections of roughly one-half of,a board elected at large.
    Subsection (c), applicable to the districts that elect directors by place, and subsection (d),
    applicable to districts that elect directors by precinct and at large, both provide for elections of
    approximately half of the members of the board each year. 
    Id. § 286.042(c)-(d).
    But while annual
    elections for approximately half of the board in at-large districts may have been the Legislature's
    intended goal, the language it chose does not produce that result in all cases. Specifically, section
    286.042(b) does not contemplate the possibility that two of the directors may receive the same
    number of votes under the unique circumstances presented here. 2 Even if it appears that there may
    2You  note that the petition calling for the creation of the District specifies that four directors will serve a two-
    year term and three will serve a one-year term. Request Letter at 1, Exhibit A (providing that "four (4) directors who
    The Honorable Andrew Lucas - Page 3                        (KP-0002)
    have been an inadvertent omission in a statute, courts will construe a clear statute as written unless
    it produces absurd results. Tex. Lottery Comm 'n v. First State Bank ofDeQueen, 
    325 S.W.3d 628
    ,
    637-38 (Tex. 2010). A court could conclude, therefore, that two directors of a seven member
    board who both receive the fourth-highest total number of votes are included in the "majority of
    the directors who receive the highest number of votes" and that both serve a two-year term under
    section 286.042(b)(2). TEX. HEALTH & SAFETY CODE ANN.§ 286.042(b)(2) (West 2010). 3
    receive the most votes at the initial election of directors will serve for two years[, and the] remaining three (3) directors
    will serve for one (I) year") (on file with the Op. Comm.). Like section 286.042 of the Health and Safety Code, the
    petition does not address terms of office when there are not four directors elected who received more· votes than the
    remaining three. Thus, the petition is not contrary to the statutory election provisions.
    3
    You state that you understand "that the district's board of directors is ready to cast lots" to determine who
    will serve a two-year term and who will serve a one-year term. 
    Id. at 2.
    The Legislature has recognized casting lots
    as a method for resolving some election issues, although that method is not specifically required here. See TEX. SPEC.
    DIST. CODE ANN. § 7201.052(i) (West 2014) (requiring the directors of the Agua Special Utility District to cast lots
    to determine terms of office). We are not aware of any statute that would preclude the directors of the District who
    received the same number of votes from agreeing that one will serve a one-year term as determined by casting lots.
    The Honorable Andrew Lucas - Page 4          (KP-0002)
    SUMMARY
    When a hospital district created under chapter 286 of the
    Health and Safety Code elects its initial permanent board of
    directors in an at-large election, the majority of the directors who
    receive the highest number of votes serve two-year terms. A court
    could conclude ' that when two directors of a seven member board
    both receive the fourth-highest total number of votes, they both are
    included in the majority who serve two-year terms.
    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
    WILLIAM A. HILL
    As.sistant Attorney General, Opinion Committee
    

Document Info

Docket Number: KP-0002

Judges: Ken Paxton

Filed Date: 7/2/2015

Precedential Status: Precedential

Modified Date: 2/10/2017