Untitled Texas Attorney General Opinion ( 2007 )


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  •                                            GREG        ABBOTT
    April 4,2007
    The Honorable Homero Ramirez                          Opinion No. GA-0535
    Webb County Attorney
    Post Office Box 420268                                Re: Whether the trustees of an independent school
    Laredo, Texas 78042-0268                              district must change the terms of office of trustees
    from three to four years to comply with a statute
    requiring school districts to conduct joint elections
    with other political subdivisions (RQ-0538-GA)
    Dear Mr. Ramirez:
    You request an interpretation of certain Education Code provisions applicable to the board
    of trustees of an independent school district, in particular, the statute providing for the date of school
    trustee elections and the statute governing a board member's term of office.' Education Code section
    11.059 establishes the terms of office for trustees of independent school districts, and section
    11.0581 provides that an election for trustees is to be held jointly with either state and county
    officials or city officials. See TEX.EDUC.CODEANN. $5 11.0581 (Vernon Supp. 2006), 11.059
    (Vernon 2006).
    Section 11.059 of the Education Code was adopted in 19952and provides as follows for
    trustees' terms of office:
    (a) A trustee of an independent school district serves a term
    of three or four years.
    (b) Elections for trustees with three-year terms shall be held
    annually. The terms of one-third of the trustees, or as near to one-
    third as possible, expire each year.
    (c) Elections for trustees with four-year terms shall be held
    biennially. The terms of one-half of the trustees, or as near to one-
    half as possible, expire every two years.
    'Letter from Honorable Homero Ramirez, Webb County Attorney, to Honorable Greg Abbott, Attorney General
    of Texas, at 1 (Sept. 27, 2006) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us)
    [hereinafter Request Letter].
    'See Act of May 27, 1995, 74th Leg., R.S., ch. 260, 4 1, sec. 11.059(e), 1995 Tex. Gen. Laws 2207, 2226
    (codified at TEX.EDUC.CODEANN. 4 11.059).
    The Honorable Homero Ramirez - Page 2                            (GA-0535)
    (d) A board policy must state the schedule on which specific
    terms expire.
    (e) Expired.
    
    Id. 5 11.059
    (Vernon 2006).
    Your questions relate to the effect of Education Code section 11.0581 on the section 11.059
    authority for three-year trustee terms. See Request Letter, supra note 1, at 1,7-8. You ask whether
    the Board of Trustees of the United Independent School District (the "UISD") will be required to
    change school board members' terms of office from three- to four-year terms in order to ensure that
    every election is a joint election, and whether the school district is required to hold joint elections
    under section 11.0581 in every election under all circumstances. See 
    id. These two
    questions raise
    the same issues from different perspectives, and both require us to set out the background of election
    date provisions and the practical difficulties that section 11.0581 raises for some districts with three-
    year trustee terms. Accordingly, we will consider these two questions together.
    Section 11.0581 of the Education Code was adopted in 20063 and provides that
    (a) An election for trustees of an independent school district
    shall be held on the same date as:
    (1) the election for the members of the governing body
    of a municipality located in the school district; or
    (2) the general election for state and county officers.
    (b) Elections held on the same date as provided by
    Subsection (a) shall be held as a joint election under Chapter 271,
    Election Code.4
    (c) The voters of a joint election under this section shall be
    served by common polling places consistent with Section 271.003(b),
    Election Code.
    3SeeAct of May 12, 2006, 79th Leg., 3d C.S., ch. 5,     5   11.01, sec. 11.0581, 2006 Tex. Sess. Law Serv. 45,
    98-99.
    4Election Code section 27 1.002(a) provides as follows:
    If the elections ordered by the authorities of two or more political
    subdivisions are to be held on the same day in all or part of the same territory, the
    governing bodies of the political subdivisions may enter into an agreement to hold
    the elections jointly in the election precincts that can be served by common polling
    places, subject to Section 271.003 [relating to the location of polling places].
    TEX.ELEC.CODEANN.4 27 1.002(a) (Vernon 2003).
    The Honorable Homero Ramirez - Page 3                   (GA-0535)
    (d) The board of trustees of an independent school district
    changing an election date to comply with this section shall adjust the
    terms of office of its members to conform to the new election date.
    TEX.EDUC.CODEANN. 5 11.0581 (Vernon Supp. 2006) (footnote added).
    Subsection 11.0581(a) refers to the uniform election dates set out in chapter 41 of the
    Election Code. Section 41.001(a) of the Election Code provides as follows:
    (a) Except as otherwise provided by this subchapter, each
    general or special election in this state shall be held on one of the
    following dates:
    (1) the second Saturday in May; or
    (2) the first Tuesday after the first Monday in
    November.
    TEX.ELEC.CODEANN.5 41.001(a) (Vernon Supp. 2006). The Election Code further provides that
    "[tlhe general election for state and county officers shall be held on the first Tuesday after the first
    Monday in November in even-numbered years." 
    Id. 5 41.002
    (Vernon 2003). There is no such
    express provision for municipal elections, which therefore may be held on either one of the two
    uniform election dates set out in section 4 1.OO 1(a). The Local Government Code provides for the
    frequency of municipal elections. Type A and Type B general-law municipalities are required to
    conduct annual elections for members of their governing bodies on a uniform election date provided
    by Election Code chapter 41. See TEX.LOC.GOV'TCODEANN.$5 22.003,23.023 (Vernon 1999).
    Statutes applicable to Type C general-law cities and home-rule cities also require these cities to hold
    elections on uniform election dates, but they are silent as to the frequency of elections for members
    of the governing body. See 
    id. 55 24.023(b),
    26.042. Such cities will not necessarily hold annual
    elections for their governing bodies. See Request Letter, supra note 1, at 7; see also TEX.LOC.
    GOV'TCODEANN.$5 24.023(b), 26.042 (Vernon 1999).
    At issue here is a school district's ability to comply with section 11.0581(a) of the Education
    Code. A school district with four-year school trustee terms, which must therefore hold biennial
    elections, can comply with section 11.0581(a) by conducting elections inNovember every other year
    when the general election for state and county officers is held. See TEX. EDUC.CODEANN.
    $5 11.0581(a) (Vernon Supp. 2006), 11.059(c) (Vernon 2006); TEX. ELEC. CODE ANN.
    $5 41.001(a) (Vernon Supp. 2006), 41.002 (Vernon 2003). If a municipality located in the school
    district elects its governing body biennially in May, the district may comply with section 11.0581(a)
    by conducting its elections jointly with the municipality. See TEX.EDUC.CODEANN.$5 1 1.0581(a)
    (Vernon Supp. 2006), 11.059(c) (Vernon 2006).
    But some school districts with three-year trustee terms, which must hold trustee elections
    annually, will not be able to hold all trustee elections as a joint election. See 
    id. 5 11.059(b)
    (Vernon
    2006). As you point out, elections for school trustees with three-year terms will necessarily take
    The Honorable Homero Ramirez - Page 4                   (GA-0535)
    place in both even-numbered and odd-numbered years. See Request Letter, supra note 1, at 7 app.
    (chart showing years when the UISD trustee offices will be up for election). An independent school
    district whose trustees serve three-year terms will be able to hold all trustee elections as a joint
    election if a city located in its boundaries holds elections for its governing body annually. If there
    is no such city in the school district, however, the district will be unable to find an election partner
    for each year. Even if the school district decides to hold elections on the same date as the biennial
    general election for state and county officers, it will lack an election partner for odd-numbered years.
    Under these circumstances, school districts with three-year terms of office will be unable to ensure
    that every election is a joint election as contemplated by section 11.0581(b).
    You indicate that the UISD, whose trustees are currently elected in single member districts
    for three-year terms of office, will not be able to conduct a joint election in every election year. See
    Request Letter, supra note 1, at 7-8. The UISD would like to conduct its trustee elections on the
    date of the general election for state and county officers and the date of elections held by the City
    of El Cenizo, a municipality within a portion of the UISD. See 
    id. at 7.
    El Cenizo conducts its
    elections jointly with the state and Webb County in November in even-numbered years. See 
    id. If the
    UISD chooses these dates, it will not be able to conduct joint elections in odd-numbered years.
    See 
    id. at 7
    app.
    Your questions require us to consider the relation of section 11.0581 to section 11.059. In
    construing these two statutes, we look to the rules of statutory construction as stated in judicial
    decisions and codified in the Code Construction Act, chapter 3 11 of the Government Code (the
    "Act"). See TEX.GOV'TCODEANN.ch. 3 11 (Vernon 2005); 
    id. 5 3
    11.003 (the rules in the Act "are
    not exclusive but are meant to describe and clarify common situations"). A court construes a statute,
    "first, by looking to the plain and common meaning of the statute's words." Argonaut Ins. Co. v.
    Baker, 87 S.W.3d 526,529 (Tex. 2002). "Words and phrases shall be read in context and construed
    according to the rules of grammar and common usage." TEX. GOV'TCODEANN. 5 3 11.011(a)
    (Vernon 2005). Generally, a legislative enactment covering a subject dealt with by an older law, but
    not repealing that law, should be harmonized whenever possible with its predecessor in such a
    manner as to give effect to both. Acker v. Tex. Water Comm 'n, 790 S.W.2d 299,301 (Tex. 1990).
    "[Tlhe court will endeavor to harmonize and reconcile the various provisions, and if both acts can
    stand together, the rule is to let them stand." Int'l Serv. Ins. Co. v. Jackson, 335 S.W.2d 420,424
    (Tex. Civ. App.-Austin 1960, writ ref d n.r.e.); see TEX.GOV'TCODEANN.tj 3 11.021(2) (Vernon
    2005) (in enacting a statute, it is presumed that the entire statute is intended to be effective).
    You suggest that where section 11.0581 provides that a school district trustee election "shall
    be held on the same date as" elections for state and county officials or elections for city officials, the
    term "date" refers to the usual city council election date, for example the second Saturday of May,
    but does not mean that both elections are held on the same day (in the same year). TEX.EDUC.CODE
    ANN.5 11.0581(a) (Vernon Supp. 2006) (emphasis added); Request Letter, supra note 1, at 9. You
    point out that chapter 271 of the Election Code authorizes joint elections where "elections ordered
    by the authorities of two or more political subdivisions are to be held on the same day in all or part
    of the same territory." TEX.ELEC.CODEANN. tj 271.002(a) (Vernon 2003) (emphasis added);
    Request Letter, supra note 1, at 9. You submit that elections taking place at the same time are
    referred to as elections on the "same day." Request Letter, supra note 1, at 9. However, "[iln
    The Honorable Homero Ramirez - Page 5                    (GA-0535)
    ascertaining a term's meaning, courts look primarily to how that term is used throughout the statute
    as a whole. Statutory terms should be interpreted consistently in every part of an act." Tex. Dep 't
    of Transp. v. Needham, 
    82 S.W.3d 314
    , 318 (Tex. 2002) (citation omitted). We look to section
    11.0581(b), which states that "[e]lections held on the same date as provided by Subsection (a) shall
    be held as a joint election under Chapter 271, Election Code." TEX.EDUC.CODEANN.$ 11.0581(b)
    (Vernon Supp. 2006) (emphasis added). If elections on the same date must be held as a joint
    election, then the term "same date," when used in section 11.0581, must mean the "same day" (in
    the same year). Thus, the use of "date" in section 11.0581 and "day" in section 271.002(a) does not
    support your argument.
    Section 11.0581(a) also provides that "[aln election for trustees of an independent school
    district shall be held" on dates set out in section 11.0581(a)(l) and (2). 
    Id. $ ll1.0581(a)(emphasis
    added). The word "shall" in statutes is generally construed as mandatory, unless legislative intent
    suggests otherwise. See Albertson 's, Inc. v. Sinclair, 984 S.W.2d 958,961 (Tex. 1999); TEX.GOV'T
    CODEANN.$ 3 11.016(2) (Vernon 2005) ("'Shall' imposes a duty," unless it appears in a context that
    necessarily requires a different construction). Thus, section 11.0581(a) requires independent school
    districts to hold elections on certain dates jointly with a city within the district or with the county and
    state.
    Education Code section 11.059(a) provides that a trustee of an independent school district
    "serves a term of three or four years." TEX.EDUC.CODEANN. $ 11.059(a) (Vernon 2006). In
    contrast to section 11.0581, it permits but does not require any independent school district to
    establish three-year terms for its trustees. Because Education Code sections 11.0581 and 11.059
    both relate to the election of independent school district trustees, they should be harmonized to give
    effect to both provisions. See Argonaut Ins. 
    Co., 87 S.W.3d at 53
    1. Any independent school district
    with three-year trustee terms must change to four-year terns if necessary to comply with the mandate
    of section 11.0581.
    Your remaining question is whether trustees of the UISD have the authority to vote to change
    their terms of office to four-year terms. See Request Letter, supra note 1, at 1. Section 11.0581(d)
    expressly authorizes a board of trustees to change their terms of office to the extent necessary to
    comply with section 11.0581' sjoint election date requirement. TEX.EDUC.CODEANN.$ 11.0581(d)
    (Vernon Supp. 2006). You are concerned, however, that expired subsection 11.059(e) may have
    some effect on the UISD Board of Trustees' authority to make such a change. See Request Letter,
    supra note 1, at 2-4. This subsection provided as follows:
    A district in which trustees serve three-year or four-year terms
    as of January 1, 1995, continues to elect trustees under that system.
    The board of trustees of a district in which trustees are elected to two-
    year or six-year terms shall adopt a resolution providing for three-year
    or four-year terms. After adoption of the resolution, the board may
    not alter the length of the terms served by district trustees.
    [Procedures for transition to a three- or four-year term.] This
    subsection expires August 3 1,2001.
    Act of May 27, 1995,74th Leg., R.S., ch. 260, § 1, 1995 Tex. Gen. Laws 2207,2226.
    The Honorable Homero Ramirez - Page 6                  (GA-0535)
    Subsection 11.059(e) expired by legislative direction on August 3 1,2001. An expired statute
    no longer has any force or effect. See The Irresistible, 
    20 U.S. 551
    (1822) (ship could not be
    forfeited under an expired provision of the Neutrality Act of March 3, 1817); Brown v. City of
    Amarillo, 180 S.W. 654,657 (Tex. Civ. App.-Amarillo 1915, writ ref d) ("[ilt is well settled that
    an offense against a temporary act cannot be punished after the expiration of the act," unless some
    particular provisions be made by law for the purpose, quoting The Irresistible, 
    20 U.S. 55
    1); see also
    Baptist Mem '1 Hosp. Sys. v. Tex. Health Facilities Comm 'n, 
    697 S.W.2d 53
    1 (Tex. App.-Austin
    1985, no writ) (state agency ceased to exist when statute establishing it expired and was not
    reenacted after Sunset Act review). Accordingly, the expired subsection 11.059(e) has no effect on
    the UISD Board of Trustees' authority to establish four-year terms of office pursuant to sections
    1l.O58l(d) and 11.059(a).
    In answer to your questions, and based on the facts you have provided about the UISD Board
    of Trustees, the UISD will be required to change school board members' terms of office from three-
    year to four-year terms in order to ensure that every election is a joint election. Section 11.0581 of
    the Education Code requires independent school districts to comply with the election dates it sets
    out and to hold joint elections on those dates.
    The Honorable Homero Ramirez - Page 7                 (GA-0535)
    S U M M A R Y
    Section 11.0581 of the Education Code requires an
    independent school district to hold trustee elections as a joint election
    on the same uniform election date as the election for members of the
    governing body of a municipality located in the school district or the
    general election for state and county officers. If a school district with
    three-year trustee terms cannot comply with the election requirements
    stated in section 11.0581, it must change to four-year trustee terms.
    Sections 1 1.0581 and 11.059of the Education Code authorize
    the board of trustees of an independent school district to change
    three-year trustee terms to four-year terms. An expired subsection of
    section 11.059 has no force or effect.
    Very truly yours,
    ' GRE~ABBOTT
    Attorney General of Texas
    KENT C. SULLIVAN
    First Assistant Attorney General
    ELLEN L. WITT
    Deputy Attorney General for Legal Counsel
    NANCY S. FULLER
    Chair, Opinion Committee
    Susan L. Garrison
    Assistant Attorney General, Opinion Committee
    

Document Info

Docket Number: GA-0535

Judges: Greg Abbott

Filed Date: 7/2/2007

Precedential Status: Precedential

Modified Date: 2/18/2017