Untitled Texas Attorney General Opinion

The Attorney General of Texas .
JIM MATTOX November 29. 1984
Attorney General
Supreme Court BuildIn
Ronorable Bill IKey Opinion No. JM-235
P. 0. Box 12548 Chairman
Austin. TX. 7S7! l- 2548 Public Education Ctmmittee Re: Effect of section 23.024 (h)
512l4752501 Texas House of RelBresentatives of the Education Code on school
Telex 910IS7C13S7
P. 0. Box 2910 trustee’s term of office
Telecopier 5W475-0268
Austin, Texas 711769
714 Jackson. Sulto 700 Dear Representative Haley:
Dallas. TX. 75202-4506
2141742.8944
You ask vhet’wr a school district trustee, elected to a six-year
term in April, 19KI. is subject to having his term cut short by school
4S24 Alberta Ave.. Suite 160 boaFd action pursuant to section 23.024 of the Education Code. This
El P8s.a. TX. 79905.2793 statute, enacted :Ln 1983, allows certain school districts to establish
915/533-w single-member districts for electing 70% or more of their trustees.
Acts 1983, 68th Leg., ch. 316, Sl at 1687. Subsection (h) of section
CO1 Texas. Suite 700
23.024 provides:
“ouston. TX. 77002-3111
7131222-5888 At the first election at which some or all of the
trustee:s are elected from trustee districts and
after c!s.ch redistricting, all positions on the
SW Broadway. Suite 312
Lubbock. TX. 79401.3479
board s:lall be filled. The trustees then elected
SW7476238 shall d:&v lots for staggered terms as provided by
Section 23.13. 23.14, or 23.15 of this code, as
applical):le. (Emphasis added).
4309 N. Tenth. Suite B
McAllen, TX. 7850%16R5
5121592.4547
Sections 23.13. 23.14. and 23.15 of the code provide that trustees in
various classific,lt:ions of school districts shall have staggered terms
of three years, six yiars, and four years respectively. For example,
200 Main Plaza. Suite 400 in a school dist:::lct ~where trustees hold six-year terms, in any one
San Antonio. TX. 782052787
election year some trustees will be up for reelection, some will have
51212254191
two years remaining of their six-year terms, and some will have four
years remaining t> serve. In the first regular election under section
An Equal OpportUnW 23.13, 23.14, or 23.15, all trustee positions sre filled, and the
Aftirmative Action Efvl~v~ trustees draw lots for term8 of varioug length, thereby establishing
the staggered terns. -See Educ. Code 1123.13(c), 23.14(c), 23.15(c).
It is suggested that the single-member districts might be phased
in over several Iwars as the trustees complete their six-year terms.
Section 23.024 01: the Education Code, however. does not authorize a
gradual changeovw. At the first election, “all positions on the
board shall be filled,” and the trustees are to draw lots for terms of
p. 1055
Honorable Bill Haley - Page Z! (n!-235)
varying length. The changeover occurs at once, and unequal terms are
necessary to reestablish the scheme whereby only a portion of trustee
positions are on the bsll,H in each election year. Moreover. the
statute uses mandatory lmguage In directing that all positions
“shall” be filled. This Flrovision effectively ends the terms of
incumbent trustees who, for example, were elected to six-year terms
and would otherwise have tw3 or four years to serve.
You ask whether a trustee elected to a six-year term prior to the
effective date of article 23.024 of the Education Code may be deprived
of his full term by board action under that provision. The
legislature in enacting m=I*tlon 23.024 has clearly
s-. authorized the
school board to take this action. See State v. Stanfield, 18 S.W. 577
(Tex. 1892). Article VII, section 16 of the Texas Constitution
empowers the legislature ‘to fix any term of office for school
trustees, not to exceed :3:1x years. See Attorney General Opinion
o-1995 (1940). Section 23.024(h) fixes terms WIthin these
constitutional limits. Cf. Attorney General Opinion MU-536 (1982)
(Tex. Const. art. V, I6-Fixes six-year term for court of appeals
judges).
The legislature may enact a statute shortening an incumbent
officer’s term. as long as the constitution does not fix the term of
office. Popham i. Patiersvn, 51 S.W.2d 680 (Tex. 1932). In Tarrant
County v. Ashmore, 635 S.Wrrd 417 (Tex. 1982) cert. denied, 459 U.S.
1038 (1982). the Texas Supclzme Court considered”thepurported rights
of duly e&ted officehol&rs to complete their full terms of office.”
635 S.W.Zd at 418. The Tzirrant County Comissioners Court adopted a
redistricting plan and concurrently ordered that all justice and
constable precincts and eclch office located therein be abolished so
that the newly defined of:i:tces could be filled by appointment. The
justices and constables who were removed from office sought damages
and other relief against the commissioners court, claiming an entitle-
ment to complete their t(!Ims of office and violation of their due
process rights.
The supreme court found that there was no taking of property in
violation of article I, section 17 of the Texas Constitution or the
due process clause of the Fifth and Fourteenth Amendments of the
United States Constitution. It quoted from State ex rel. Maxwell v.
Crumbau h. 63 S.W. 925, 9:!i (Tex. Civ. App. - San Antonio 1901, writ
Tiim+
A public offi,ce is not ‘property,’ within the
meaning of the ~:``nstitutional provision that ‘no
person shall bt! deprived of life, liberty or
property without due process of law.’ It is a
mere public agency. revocable according to the
will and appoint,nlent of the people, .as exercised
p. 1056
Honorable Bill Hsl.ey - Psge :3 (JM-235)
in the constitut~lon and the laws enacted in
conformity therawl~th. Moore v. Strickling (U.Va.)
146 W.Va. 5151. _ . ,33 S.E. 274. 50 L.R.A. 279. In
;he case cited the court- in its opinion
makes . . . the following quotation: ‘It is
impossible to cclt.ceive how, under our form of
government, a person can own or have a title to a
governmental office. Offices are created for the
administration of public affairs. When a person
is inducted into an office he thereby becomes
empowered to exerc:ise its powers and perform its
duties, not for 111.8, but for the public, benefit.
It would be a mi,3nomer and a perversion of terms
to say that an i,ccumbent owned an office or had
any title to it.’
The Texas Supreme Court determined that
every public offj,ceholder remains in his position
at the sufferance and for the benefit of the
public, subject to removal from office by edict of
the ballot box at the time of the next election,
or before that tj.me by any other constitutionally
permissible means.
635 S.W.Zd at 421. Its de::Lsion is in accord vith the majority rule
in other jurisdictions, ac shown by its survey of authorities from
other states. An officer may have a property interest in his office
that can be protected agsjnst interference by s private person, but
“the qualified interest htld by a public officer is not ‘property’
within the sense of constitutional guarantees against governmental
taking of property without compensation.” Id. at 422. See also
Aigginbotham v. Baton Rougjr, 306 U.S. 535 (19m; Taylor v. Beckham,
178 U.S. 548 (1900); -- Moore v. El Paso Commissioners Court, 567 S.W.2d
15 (Tex. Civ. App. - El Paso 1978, writ ref’d n.r.e.); Attorney
General Opinion H-955 (19;‘i). Cf. Childress County v. Sac&e, 310
S.W.2d 414. (Tex. Civ. App. - Amarillo, writ ref’d n.r.e.), per curiam.
312 S.W.2d 380 (Tex. 1958) (county commissioner’s office not vacated
by change of precinct boundaries which removed his residence from his
precinct).
We conclude, based on Jarrant County v. Ashmore, that the terms
of incumbent school board members may constitutionally be shortened
pursuant to legislative ac eion. The trustees have no right to serve
out full terms that would bar the legislature from enacting section
23.024 and making it applicable to incumbents. The board’s action
pursuant to this sectjon did not unlawfully deprive a previously
elected trustee from serving out a full term.
p. 1057
Monorable Bill Haley - Page ,4 (a-235)
SUMMARY
Section 23.024 of the Education Code authorizes
certain school. districts to establish
single-member d:lstricts for trustees. Under
subsection 23.026(h) of the code, all trustees’
positions will bir filled by election at the same
time, with the result that the terns of some
incumbent tNst ees will be shortened. The
shortening of incumbent trustees' terms pursuant
to section 23.024(h) of the Education Code does
not deprive the trustees of a property right or
any entitlement t,c serve out a full term.
s k
Very
-J I M
ruly yours
k
MATTOX
Attorney General of Texas
-
TOMGREEN
First Assistant Attorney Goneral
DAVID R. RICRARDS
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committelr
Prepared by Susan L. Garrison
Assistant Attorney General
APPROVED:
OPINIONCOMMITTEE
Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Hoellinger
Jennifer Riggs
p. 1058