Untitled Texas Attorney General Opinion ( 1970 )

Dr. Bevington Reed
Commissioner of Higher Education
Coordinating Board
Texas College and University System
State Finance Building
Austin, Texas 78101
Opinion No. M-690
Re: Whether the election of a
non-resident candidate for
the Board of Trustees of a
Junior College District was
validated by the cited pro-
vision of the Texas Education
Dear Dr. Reed: Code.
You have advised us in your recent letter that Tyler
Junior College, insofar as the election of members of its Board
of Trustees is concerned, is governed by the terms of Article
2815n-1, Vernon's civil Statutes, as amended, rather than by
the Texas Education Code, the college having duly and timely
adopted the provisions of the laws of the State of Texas in
effect prior to September 1, 1969,,with reference to (among
other things) the number of members of its gwerning board
and the procedure and time of selecting or choosing said members.
The authority for the college to adopt existing laws
of the State concerning the number of members and the procedure
and time of selecting or choosing said members is provided under
Section 51.072(h) of the Texas Education Code, enacted by the
61st Legislature, Regular Session, 1969, and effective September 1,
1969.
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Dr. Bevington Reed, page 2 (M-690)
You have further advised us that on April 4, 1966,
the Board of Trustees of Tyler Junior College ordered an election
t0 be held in the Tyler Junior College District on the first Mon-
day in June, 1966, for the purpose of electing three trustees
from that portion of said district composing the original Tyler
Junior College District, that the election was duly and timely
held, and that on June 7, 1966. the Board of Trustees of said
district entered an order declaring the results of said election.
As pointed out in your letter, Section 2 of Article
2815n-1, which governs the election of board members (by virtue
of the election by the college under authority of Section 51.072(h)
of the Texas Election Code), provides that
"members of the Board of Trustees of such
Junior College District shall be elected from the
original Junior College District and from a common
and/or independent school district annexed thereto
for Junior College purposes only ..."
on the basis set out in said Section 2.
You have further advised us that it has now been
ascertained that one of the candidates in the election held to
select trustees from that portion of the district composing the
original Tyler Junior College District was not a resident of the
original district at the time of the entry of the order for the
said election, that he had never been a resident of the original
district at any time thereafter, although he was a resident of
the Tyler Junior College District as constituted following
annexation of other areas, and of the Tyler Junior college District
as constituted at the time of his election, and that this candi-
date was declared to be an elected member of the board by an
order of the board.
You have inquired whether, based upon such facte, the
election of this candidate was validated by Section 51.004, Sub-
section (c) (3) of the Texas Education Code. That subdivision
of the code prwidea in part as follows:
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Dr. Bevington Reed, page 3 (M-690)
*
. . . and all acts of the gwerning board
of such junior college districts ordering an
election or elections, declaring the results of
such elections. levying, attempting, or purporting
to levy taxes for or on behalf of such districts
...are hereby in all things validated: ...*I
You have advised us that there do not exist any of the
conditions set out in Section 51.004, Subsection (d) of the Edu-
cation Code which would make the above Subsection (c) (3) of that
code inapplicable to the Tyler Junior College District.
We are of the opinion that Section 51.004, Subsection
(c) (3) of the Texas Education Code does validate the election
of the person here under consideration. That subdivision is
clearly intended by the Legislature to serve as a validating or
remedial statute. This is discernible from the language of sub-
division (3) itself, as well as from the fact that said subdivision
is included as a part of Subsection (c), obviously a validating
statute.
In the Ease City~of Mason v. West Texas Utilities, 237
S.W.2d 273 (Tex.Sup.1951) there is the following language:
"The enactment of remedial or curative statutes
constitutes a valid exercise of legislative power...
The Legislature may ratify anything it could have
authorized in the first place. Miller et al v. State
et al, Tex.Civ.App. 155 S.W.2d 1012, writ refused;
Hunt v. Atkinson, Tex.Com.App.. 18 S.W.2d 594; a
Countv v. Raines County, Tex.Civ.App. 7 S.W.2d 648:
39 Tex.Jur., p. 41, Sec. 19; 8 Tex.Jur., Ten Year
Supp.. p. 794,795, Sec. 19.
*‘The Legislature has passed many curative,
remedial, and validating statutes. For example, it
has passed acts validating bonds, city charters, and
county boundaries. ~160, the Legislature has passed
-3327-
Dr. Bevington Reed, page 4 (M-690)
many acts confirming the rights of purchasers
of public lands, and validating the organization
of drainage; improvement, and school districts.
39 Tex.Jur., p. 42, Sec.~l9: 8 Tex.Jur., Ten Year
supp. ‘ p. 794, Sec. 19. ...'I
In the opinion from the same case there is also the following
language:
"If a statute is curative or remedial in its
nature, the rule is generally applied that it be
given the most comprehensive and liberal construction
possible. It certainly should not be given a narrow,
technical construction which would defeat the very
purpose for which the statute was enacted. 39 Tex.
Jur., pp. 273,274. Sec. 145; 59 C.J., p. 1106, Sec.
657: 50 Amer.Jur., p. 415, Sec. 392, and the cases~
cited from the many jurisdictions in support of the
rule."
In point also is the following language from 53 Tex.
Jur.2d. Statutes, p. 303, sec. 197, Remedial and curative acts:
"The rule of liberal construction applies with
full force to remedial statutes and to changes made
therein, as it does also to curative or validating
acts. M enactment of a remedial or curative statute
is regarded as wholesome, and will be accorded the
most comprehensive and liberal construction of which
it is susceptible, with a view to accomplishing the
legislative purpose."
In view of the foregoing discussion and the authorities
cited it is our opinion that the order of the board of June 7,
1966, declaring the result of the election, entitles the person
here under consideration to qualify for the office of trustee
and to serve in that office for the duration of the term to which
he was elected, Section 51.004, Subsection (c) (3) having in eff,ect
removed the disqualification of non-residence which applied at
the time of his election.
-3328-
. .
Dr. Bevington Reed, page 5 (M-690)
This ~person will not be eligible for election to a
subsequent term, however, if he is not a resident of the original
distriqt at the time of the next election for that district.
In Runt county v. Raines County, 7 S.W.28 648 (Tex.Civ.
APP., 1925, no writ) there is the follwing language:
"Ordinarily curative statutes are by their
very nature intended to act upon past transactions,
and are therefore wholly retroactive."
In 82 C.J.S., Statutes, Section 430, Curative Statutes,
p. 1003, there is the statement:
"Such acts are, by their very nature, intended
to operate on past transactions, and are, therefore,
necessarily retrospective, and ordinarily will be
construed as having a retroactive effect and no
prospective operation."
See also Attorney General's Opinion No. o-5903, 1944,
citing Peonle v; Chicaoo 8. & Q. R. Co., 137 N.E. 392, 305 Ill.
567, where the court wrote2
"Curative acts do not apply to defects arising
after passage of the act. The object of a curative
act is not to change the law governing future actions,
but to waive acme reguirement~of the law affecting
past action," citing People v. Rinsev. 128 N.E. 561,
294 Ill. 530.
SUMMARY
The 1966 election to the Board of Trustees of
a person who was not a resident of the original
Tyler Junior College District at the time of the
election was validated by the enactment of Section
51.004, Subsection (c) (3) of the Texas Education
code, effective September 1, 1969.
-3329-
,
Dr. Bevington Reed, page 6 (M-690)
A validating statute does not act prospectively,
however, and at an election held subsequent to Sep-
tember 1, 1969, the requirement of residency will-re-
main in effect.
V truly yours,
Attor y General of Texas
#
Prepared by James S. Swearingen
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Austin Bray
Malcolm Quick
R. D. Green
Robert Giddings
WBADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLAWBITB
First Assistant
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