Untitled Texas Attorney General Opinion

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