Untitled Texas Attorney General Opinion ( 1961 )

AUSTIN m.TE-
WILL WIILSON
A’FT0RNE-s GENERAI.
February 1, 1962
Honorable J. W. Edgar Opinion No. WW-111OA
Commissioner of Education
Austin, Texas Re: Terms of office of county
school trustees.
Dear Sir:
Your opinion request reads in part as follows:
"Attorney General Opinion WW-1110 (August,
1961) holds in substance that the term of
office of the elective county school trustees
of this State is four years, by virtue of Sec-
tion 64, Article XVI, Constitution of Texas,
adopted in the Fall of 19%. Prior to Section
64, supra, the term of office was governed by
Article 2676, V.C.S.; annually three or two
county trustees alternately were elected for
two-year terms at the regular school trustee
election held generally on the first Saturday
in April.
"The first election of county school trus-
tees following the adoption of Section 64 was held
in April, 1955. At that election and for each
year following (including the election held in
April 1961), county trustee elections have been
held annually when either three or two trustees
have been elected for presumed two-year terms,
as if Article 2676 had not been affected by Sec-
tion 64.
"No+ that county school authorities are
apprised of this irregularity they are anxious,
of course, to conform to the holding in WW-1110
and need to be advised as to how they may in-
augurate the process of electing county school
trustees on a four-year basis at elections that
would necessarily be held every two years.
'7* * *
"The Agency needs and would appreciate re-
ceiving at the earliest convenience of your
Honorable J. W. Edgar, page 2 (WW-111OA)
office, trustee election time fast approaching,
an opinion on the following problem:
"The proper method whereby now there may
be inaugurated the four-year term, every-two-
year elections of elective county school trustees
in counties which through April 1961 have elected
county school tcustees annually, presumably for
two-year terms.
Upon reconsideration of Opinion No. WW-1110, we have
concluded that we erred in holding that the office of county
school trustee is a county office within the meaning of Section
64 of Article XVI of the Texas Constitution and that the pro-
vision in Article 2676, Revised Civil Statutes, fixing the
terms of county school trustees at two years, is unconstitu-
tional as being in violation ,of that section.
Article 2676, R.C.S., reads in part as follows:
"Section 1. The general management and
control of the public free schools and high
schools in each county, unless otherwise pro-
vided by law shall be vested in five (5) county
school trustees elected from the county, one
of whom shall be elected from the county at
large by the qualified voters of the county and
one (1) from each Commissioner's Precinct by
the qualified voters of each Commissioner's
Precinct, who shall hold office for a term of
two (2) years. The time for such election shall
te,th;,,firstSaturday in April of each year;
Section 3 of Article 2676 provides that "each year there shall
be elected alternately two county scho:l trustees and three
county school trustees in each county.
Section 64 of Article XVI of the Constitution pro-
vides:
"Section 64. The office of Inspector of
Hides and Animals, the elective district, county
and precinct offices which have heretofore had
terms of two years, shall hereafter have terms
of four years; and the holders of such offices
shall serve until their successors are qualified."
This section was added to the Constitution as a part of a con-
stitutional amendment proposed by S.J.R. No. 4, j3rd Legislature,
Honorable J. W. Edgar, page 3 (WW-111OA)
1953, and adopted at the general election in 1954. The caption
of the Resolution stated its subject matter to be:
"Proposing an amendment to the Constitution
of the State of Texas to provide a four year
term of office for elective district, county and
precinct offices; staggering the terms of such
offices by having certain holders of sumces
t be elected for terms of varying length in the
N&ember 1954, general election; and providing
for the Necessary proclamation and election."
(Emphasis supplied.)
The staggering of the offices was accomplished by adding Sec-
tion 65 to Article XVI, providing that certain officers
elected at the general election in 1954 were to serve for the
full four-year terms and that certain other officers elected
at that election were to serve only for terms of two years.
Enumerated in this section were all the constitutional offices
created by the various sections of the Constitution which were
amended by S.J.R. No. 4 to change the terms from two to four
years, the office of criminal district attorney, judges of all
the kinds of statutory courts of county-wide jurisdiction then
in existence, and the statutory offices of inspector of hides
and animals and public weigher. No mention was made anywhere
in the amendment of the office of county school trustee.
We are of the opinion that the offices enumerated
in Section 65 included all offices then in existence which
S.J.R. No. 4 was intended to cover. The subject matter of
this section w%s stated in the caption of the Resolution bx
the language, staggering the terms of such offices * * *.
The phrase "of such offices" refers back to the elective dis-
trict, county and precinct offices whose terms were being in-
creased by the amendment. If Section 65 had been intended to
cover only part of those offices, the caption could easily
have so indicated by stating that the amendment provided for
the staggering of the terms of certain of such offices. The
use of the phrase 'of such officesl(without limitation rea-
sonably suggests that the staggering of -
all such offices was
provided for in the amendment.
It is also significant that the amendment expressly
mentioned the statutory office of inspector of hides and
animals--an office which now exists only in a small number of
counties (see Arts. 6972, 7005,7008, R.C.S.), and the statutory
office of public weigher, which has fallen into disuse in many
counties, but failed to mention the office of county school
trustee, which in 1953 had been in existence in practically
Honorable J. W. Edgar, page 4 (WW-111OA)
every county of the State for approximately forty years, and
for which office a yearly election was regularly held. S.J.R.
No. 4 obviously had been drafted with much thoroughness,
amending as it did each separate section of the Constitution
covering the constitutional offices and sifting through the
statutes to pick up statutory offices such as inspector of
hides and animals, public weigher, and judges of county courts-
at-law, county criminal courts, county probate courts, and
county domestic relations courts (which, as we have said, ln-
cluded all types of statutory courts of county-wide jurisdiction
then In existence). It would be surprising lnd?edto think that
the drafters, exercising such great care, would have failed to
make express mention of county school trustees if the intent
had been to Include this office In the term ncounty offices."
When one looks to the basic purpose of S.J.R. No. 4,
it Is seen that there was no necessity for including coun~ty
school trustees in the amendment. As we construe lt,the
object of the amendment was ta..lncreaseto four years the terms
of certain offices which the Constitution theretofore had
limited to two years. At the time of i~teadoption, the terms
of offices not specifically fixed by the Constitution were
governed by the followlng~constltutional provlslons:I
(1) Article XVI, Section 30, as amended ln 1894,
which provided:
"The duration of all offices not fired by
this Constitution shall never exceed two years;
provided, that when a Railroad Commission is
created by law it shall be composed of three
Commissioners who shall be elected by the people
at a general election for State officers, and
their terms of office shall be six years; * * *."
(2) Article XVI, Section 30a, added in 1912 to relax
the two-year limitation In Section 30 for terms of members of
state boards, so as to authorize staggered terms of six years
with one-third of the members being elected or appointed every
two years.
IArtIcle XVI, Section 30b, adopted in 1940, relates
to appointlve offices of municipalities which are placed under
civil service, and need not be noticed here. Article XI, Sec-
tion 11, also relating to terms of municipal offzces, was
adopted In 1958.
Honorable J. W. Edgar, page 5 (WW-111OA)
(3) Article VII, Section 16, added in 1928 as a
further relaxation of Article XVI, Section 30, to provide as
follows:
"The Legislature shall fix by law the
terms of all offices of the public school
system and of the State Institutions of higher
education, inclusive, and the terms of members
of thenrespective boards, not to exceed six
years.
Article VII, Section 16 was, beyond doubt, the consti-
tutional provision governing terms of county school trustees in
1953, when S.J.R. No. 4 was proposed. Article 2676, R.C.S.,
provides that "the general management and control of the public
free schools and high schools In each county, unless otherwise
provided by law shall be vested in five county school trustees
* * 36." Every duty performed by the trustees relates to the
public school system, and they are as much a part of the school
system as are the trustees of school districts or the county
school superintendent. Acting under this constitutional pro-
vision soon after its adoption, the Legislature increased the
county school superintendent's term of office from two to four
See Art. 2688 R.C.S and Popham v. Patterson, 121
;::%5 51 S W 2d 660 (19323 The Legislature has also fixed
the term; of the'trustees of school districts at lengths ranging
from two to six years. The Legislature had not seen fit to
increase the terms of the county school trustees, but in 1953
it nevertheless had the power under this section of the Consti-
tution to provide for terms up to six years. There was no
necessity for amending the Constitution to enable an increase
in the terms.
In Opinion No. WW-1110, it was concluded that county
school trustees are "county officers' within the meaning of
Section 64 because their title includes the word 'county' and
they are elected on a county basis. Officers classified as
county officers within the meaning of certain constitutional
or statutory provisions are not necessarily so classified in
other instances. For example, the trustees of school districts
have been held to be county officers within the terms of a
statute authorizing contests of election for county office.
Fowler v. Thomas, 275 S.W. 253 (Civ.App. 1S)2~;yMiller v.
c ffee 7 S W 26 1100 (Civ.App 1929). have also
bzen hild to be county sfficers &thin tn; terms of Article
V, Section 24 of the Constitution and Article 5970, R.C.S.,
providing for removal of county officers from office. Kimbrough
v. Harnett, 93 Tex. 301, 55 S.W.120 (1900); Walker v. Walter,
241 S.W. 524 (Civ.App. 1922); Lamb v. State ex rel. Johnson,
Honorable J. W. Edgar, page 6 (WW-111OA)
267 S.W.2d 28~5 (Civ.App. 1954). Yet it could hardly be con-
tended that trustees of school districts are county officers
within Section 64 of Article XVI, and that the trustees of
school districts whose terms were fixed by statute at two years
in 1954 were given four-year terms by that section.
In view of the decisions cited in the preceding
paragraph, a county school superintendent undoubtedly would
also be classified as a county officer within the contest and
removal statutes; but Attorney General's Opinion No. WW-1051
(1961) held that he was not a county official within the terms
of Article 2372h-2, V.C.S., authorizing the commissioners court
to provide hospitalization insurance to county officials and
employees.
In Webb County v. Board of School Trustees of Laredo_,
95 Tex. 131, 65 S.W. 876 (1901), it was held'that B county
could not be held responsible for the failure of the county
superintendent to make a proper apportionment of the available
school funds of the county, stating:
"Though, in a sense, a county officer, and
though called 'county superintendent,' he is,
in fact, the officer and agent of the state,--
the state having assumed the functions of main-
taining public free schools for the education
of the children throughout its domain, the
counties being recognized with reference to
that business merely as convenient subdivisions
of territory, and some of their officers as
proper agents for the administration of affairs
relating to the public free schools. Such
officers, with respect to such affairs, act for
the state, and not for the county. This is the
case, even as to officers who, in other respect;,
are county officers In fact as well as in name.
The same observation Is pertinent to the office of county school
trustee. Although it may be classed as a county office for some
purposes,it is not a county office for all purposes. In the
matter of terms of office, we think it should be classed as an
"office of the public school system" under Section 16 of Article
VII, rather than as a 'county office" under Section 64 of
Article XVI. It is our opinion that the "elective district,
county and precinct offices which have heretofore had terms of
two years' were included inSection 64 for the purpose of over-
coming the limitation in Section 30 of Article XVI, and were not
intended to include any offices of the public school system
whose terms were controlled by Section 1.6 of.Article VII. Again
Honorable J. W. Edgar, page 7 (WW-111OA)
adverting to the apparent care with which the amendment had
been drafted, we think it most unlikely that the drafters
would have failed to amend Section 16 of Article VII so as
to provide that the school offices covered by Section 64 of
Article XVI should thereafter have fixed terms of four years
if it had been the intent to include any such offices in
Section 64.
Our conclusion that county school trustees do not
come within Section 64 of Article XVI is further substantiated
by the legislative and administrative construction which has
been given to this section. It is a well-recognized rule that
the construction given to a constitutional provision by the
legislative and executive departments should be given weight
in determining its meaning. See cases collected in 12 Tex.
Jur. 2d, Constitutional Law, g 20, and 8A Tex. Digest, Consti-
tutional Law, 68 19 and 20.
In 1957 the Legislature amended Article 2676,R.C.S.,
to clarify certain ambiguities in the law respecting procedures
incident to election of county school trustees, but re-enacted
the provision fixing their term of office at two years. Chapter
472, Acts of the 55th Legislature, Regular Session, p. 1383.
This same Legislature, in H.J.R. No. 31, proposed an amendment
to Section 65 of Article XVI of the Constitution, which was
adopted at the general election in 1958. The caption of H.J.R.
No. 31 read in part:
"Proposing an Amendment to the Constitution
of Texas to provide that all county officials for
whom four-year terms of office were authorized in
1954 must resign such office prior to announcing
for a different office when more than one year
remains unserved of the term for which they were
elected, * * *." (Emphasis supplied.)
This change was brought about by adding a paragraph to Section
65 stating that "if any of the officers named herein" shall
announce their candidacy, etc., such candidacy shall constitute
an automatic resignation of the office then held. Section 65,
as thus amended, retained the same enumeration of offices as
when it was originally adopted in 1954, which, as we have noted,
did not contain the office of county school trustee. The under-
scored portion of the caption of H.J.R. No. 31 shows a legis-
lative interpretation that the enumeration included -all existing
offices whose terms had been increased by the 1954 amendment.
As evidenced by the second and third paragraphs of
your opinion request, the administrative construction of Section
Honorable J. W. Edgar, page 8 (WW-111OA)
64 from the date of its adoption to the date of issuance of
Opinion No. WW-1110, had been that county school trustees were
not covered by Section 64.
In the light of the foregoing discussion, it is our
opinion that the provisions of Article 2676, R.C.S., fixing the
terms of county school trustees at two years and providing for
yearly election of two and three trustees alternately, are
valid, and that this statute should be followed in the election
of these officers. Opinion No. WW-1110 is overruled and with-
drawn, and this opinion is substituted therefor.
SUMMARY
The provisions of Article 2676, Texas Revised
Civil Statutes, fixing the terms of office of county
school trustees at two years and prescribing the
times for their election, are valid, and this statute
should be followed in the election of these officers.
Attorney General's Opinion No. WW-1110, dated August
8, 1961, is overruled and withdrawn.
Yours very truly,
WILL WILSON
Attorney General of Texas
BY
Assistant
MKW:ljb
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Riley Eugene Fletcher
Dudley McCalla
Elmer McVey
REVIEWED FOR THE ATTORNEY GENERAL
By: Houghton Brownlee