Untitled Texas Attorney General Opinion

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April 25, 1991

Honorable Alvin Roy Granoff Opinion No. DM-20

Chairman

Committee on State, Federal and Re: Authority of the Coordinating

International Relations Board to mandate training require-

Texas House of Representatives ments for locally elected community

P. 0. Box 2910 and junior college trustees, and related

Austin, Texas 78768-2910 questions (RQ-2171)

Dear Representative Granoffz

You ask two questions in regard to junior college’ districts. Your first

question is whether the Texas Higher Education Coordinating Board’ may establish

training requirements for trustees of junior college districts.

The authority of the Coordinating Board in regard to junior colleges is set

out in section 130.001 of the Education Code, which provides that the Coordinating

Board “shall exercise general control of the public junior colleges of Texas.” Educ.

Code $130.001(a). Subsection (b)(3) provides that the Coordinating Board shall

“adopt standards for the operation of public junior colleges and prescribe the rules

and regulations for such colleges.” Section 130.002, however, provides as follows:

All authority not vested by this chapter or by other laws of

the state in the coordinating board or in the Central Education

Agency is reserved and retained locally in each of the respective

public junior college districts or in the governing boards of such

junior colleges as provided in the laws applicable.

‘The term “junior college’ will be used to designate entities known either as junior colleges or

community colleges. See Educ. Code 0 130.005 (junior colleges may be redesignated as community

colleges).

*Statutory references to the Coordinating Board, Texas College and University System, arc

references to the Texas Higher Education Coordinating Board. Educ. Code 5 61.0X

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The statement in section 130.001 that the Coordinating Board has “general

control” over junior colleges suggests broader authority on the part of the

Coordinating Board than does the statement in section 130.002 that all authority not

granted to the Coordinating Board or the Central Education Agency is reserved to

the junior college districts. See generally Attorney General Opinious M-199 (1968);

WW-868 (1960). Regardless of how broad the authority of the Coordinating Board

is in regard to the operation of junior college districts, however, we do not think that

authority to operate the district includes authority to set educational requirements

for trustees.

The qualifications for trustees of junior college districts to seek and hold

office are set by statute. Educ. Code 3 130.082; Elec. Code Q 141.001. To interpret

the Coordinating Board’s authority over junior college districts to include authority

to establish educational requirements for individual trustees would allow a state

agency to add to those statutory qualifications by rule. The cases and opinions

discussed below support the proposition that the qualifications of an elected official

to seek or hold office cannot be increased or decreased in that manner.

In Dick-son v. Strickland, 265 S.W. 1012 (Tex. 1924), the court considered

whether the legislature could place a local residency requirement on a candidate for

the office of governor. The court held that when the constitution sets out the

qualifications for an office, it is not within legislature’s~power to change or add to

those qualifications. Similarly, in Brown v. Meek, 96 S.W.2d 839, 842 (Tex. Civ.

App.--San Antonio 1936, writ dism’d), the court held that a commissioners court

could not add to or take away from the statutory qualifications for the office of

constable. Also, in 1940 this office issued an opinion in response tc the question of

whether a blind person could take the oath.of office and act as Navarro County

Treasurer. The opinion stated:

We have thoroughly examined the Texas statutes and fail to

find any article referring to the qualifications of a county

treasurer. The county treasurer is elected by the popular vote of

the taxpaying citizens of the county; and in the absence of

specified qualifications for such officer, anyone who receives a

majority of the popular vote is elected and is eligible to take the

oath of office and serve as county treasurer.

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Such being the case, the disability of blindness does not in

any way interfere with the person elected from taking the oath

of office and acting as county treasurer.

Attorney General Opinion O-2910 (1940); see also Attorney General Opinions H-

1120 (1978) (holding that legislature may impose education requirement for county

tax assessor-collector where the constitution imposes no qualification); H-969

(1977) (holding that county, as opposed to home-rule city, could~not require officials

to file financial disclosure statements); M-728 (1970) (nepotism law does not

render Texas Supreme Court appointee ineligible because appointee’s son is

member of legislature; legislature may not add to or alter eligibility qualifications

prescribed by constitution). It follows from those cases and opinions that an

individual who satisfies the statutory requirements and who is elected to the office

of trustee may serve. Thus, absent specific statutory authority, the Coordinating

Board may not, by rule, condition service as a trustee on the satisfaction of an

educational requirement. See Educ. Code 3 23.33 (State Board of Education may

set training requirements for school board members);” Gov’t Code 3 27.005 (justices

of the peace may be removed for failure to complete continuing education

requirements).

Your second question is whether a junior college district is authorized to

request an attorney general opinion under section 402.042(b)(6) of the Government

Code, which includes among the list of persons authorized to request opinions “a

regent or trustee of a state educational institution.” We conclude that junior college

districts are not state educational institutions for purposes of section 402.042(b)(6)!

3Seetion l30.084 of the Education Code provides that the board of trustees of a junior college

district shag be governed by the general law governing the establishment, management, and control of

independent school districts “insofar as the general law is applicable.” Because the State Board of

Education dots not implement policy for public junior colleges, as it does for the public school system.

see Bduc Code g 11.24(a), we do not think that section 23.33 of the Education Code could be

considered applicable to public college districts. But see Educ. Code g 11.24(b) (role of State Board of

Education in regard to technical-vocational programs, including those at public junior colleges).

“You also suggest that the legislature must have used the term ‘trustees” in referencc to junior

college districts. In response to that suggestion, WCnote that *trustees of State educational institutions”

were fust authorized to request attorney general opinions in 1913. Ads 19W, 33d Leg., eh. 26, at 48.

At that time there were no statutes creating or authorizing creation of junior college districts. See Acts

1929,41st Leg., eh. 290, at 648. Therefore, it is clear that the legislature did not USCthe term “trustees”

with junior college districts in mind.

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The substance of section 402.042(b)(6) was adopted in 1913. Acts 1913,33d

Leg., ch. 26, at 48. As adopted in 1913, the provision regarding attorney general

opinions stated in part:

I,I]n addition to the duties now or that may hereafter, be

imposed upon the Attorney General by law, he shall, at the

request of the Governor or the heads of the departments of the

State Government, including the heads and boards of penal and

eleemosynary institution, and all other State boards, regents,

trustees of the State educational institutions, and committees of

either branch of the Legislature, give them advice in writing

upon any question touching the public interest, or concerning

their official duties.

Acts 1913, 33d Leg., ch. 26, at 48. Although the wording of section 402.042 of the

Government Code is noticeably different from the language of the 1913 statute, that

difference stems from the 1987 enactment of title 4 of the Government Code, which

was a nonsubstantive revision. Acts 1987, 70th Leg., ch. 147, 0 7; see also V.T.C.S.

art. 4399 (1925) (making minor and nonsubstantive changes to article 4399,

V.T.C.S., the statute regarding attorney general opinions). If there is a conflict

between a former statute and a revision that was intended to be nonsubstantive, the

former statute will control. Johnson v. Cify of Fan Worrh, 774 S.W.2d 653 (Tex.

1989). Therefore, it is appropriate to look to the language of the 1913 enactment in

defining “state educational institution” within the present statute. Although the

scope of the word “state” varies according to context, case law supports the

conclusion that the language of the 1913 enactment refers to departments whose

jurisdiction is statewide. Therefore, the phrase “state educational institution” in the

current statute regarding attorney general opinions does not include entities that

serve only a limited geographical area of the state. See gene&y Attorney General

Opinion JM-1005 (1989) (entity may be “state” body for some purposes and not

others).

In San Antonio Indep. Sclrool Dist. v. State, 173 S.W. 525 (Tex. Civ. App.--San

Antonio 1915, writ ref d), the issue was the scope of article XVI, section 30% of the

Texas Constitution. As part of its analysis, the court considered the meaning of the

phrase “the board of regents of the state university and boards of trustees or

managers of the educational, eleemosynary and penal institutions of the state.” In

regard to that language, the court stated, ‘The boards enumerated in the

Constitution are clearly all state boards, or boards of the state.” Id. at 526. Accord

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Lower Colorado River Auth v. McGraw, 83 S.W.2d 629, 634 (Tex. 1935). The

opinion then determined that independent school districts were not “state boards”

for purposes of article XVI, section 30a San Ayonio Indep. School Dirt, supm, at

538. In reaching that conclusion, the court noted that the school board “is

responsible to the electors in such school district alone.” Id; c$ Lower Colomdo

River Auth. v. McGmw, supm, at 636 (Lower Colorado River Authority, which has

“many duties that are coextensive with the limits of the state” is a state. board for

purposes of article XVI, I&?

30a).S

The language in the statute regarding attorney general opinions is quite

similar to the language of article XVI, section 30a, and, we think, just as clearly

excludes bodies such as school districts that serve only a portion of the state. See

genemlly Love v. Ciryof Dallas, 40 S.W.2d 20,26-27 (Tex. 1931) (school districts are

“state agencies” inasmuch as they administer the state system of public schools and

derive their powers by delegation from the state, but they are local entities inasmuch

as they are for the benefit of the public within their boundaries); Ex parte Preston,

161 S.W. 115 (Tex. Crim. App. 1913) (designation “state officer” can be limited to

officer whose jurisdiction is coextensive with the state or it can include any officer

who receives his authority under the laws of the state, even if the officer’s

jurisdiction is limited to a particular area of the state); Orndoflv. State, 108 S.W.2d

206 (Tex. Civ. App.-El Paso 1937, writ refd) (county commissioners are officers

“under the Government of the State” even if they may not be officers “of the

Government of the State”); Attorney General Opinion M-1177 (1972) (school

employees are not “state” employees for purposes of article XVI, section 40, of the

Texas Constitution); see ako Tex. Const. art. IV, 3 22 (directing attorney general to

give legal advice to “Governor and other executive officers”upon request).

Junior colleges, like independent school districts, serve only a limited area of

the state. Section 130.0011 of the Education Code, which was added in 1987,

sAuthoritks have differed in regard to whether river authorities are state or local bodies for

purposes of different constitutional and statutory provisions. See Attorney General Opinion H-10

(1973) (iplicitly fiiding that river authority was “local governmental district” for purposes of article

XVI, section 14); see genemf& Attorney General Opinion JM-1005 (1989) (river authority is not state

agency for purposes of representation by attorney general). Our conclusion that “departments of the

State Government” does not include local governmental bodies is bolstered by the fact that in 1977 the

legislature added chairmen of the governing board of river authorities to the list of persons authorized

to request attorney general opinions. If heads of any governmental body created under the laws of the

state, regardless of their jurisdiction, were authorized to request opinions, adding river authorities to

the lists of authorized requesters would have been a pointless act.

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provides that Texas public junior colleges “shall be two-year institutions primarily

serving their local taxing districts and service areas in Texas.” The taxing authority

of junior college districts is limited to property within the district. Educ. Code

9 130.121. Junior college districts may exempt residents of the district from payment

of tuition. Id 9 130.085. Junior college districts do receive state funds, id.

4 13d.003, and are subject to supervision by the Coordinating Board, a state agency.

Id. 4 130.001. These features, however, do not give them statewide responsibility

and therefore do not make them “state” institutions any more than state funding

and supervision by the Central Education Agency make school districts state

institutions. Educ. Code 9 11.02 (authority of Central Education Agency in regard

to school districts); id. ch. 16 (Foundation School Program); see Attorney General

Opinions M-199 (1968); W-868 (1960) (concluding that junior college districts are

part of local public school system). Therefore. a junior college district is not a “state

educational institution” for purposes of section 402.042(b)(6), and its board of

trustees is not authorized to request attorney general opinions.

SUMMARY

The Higher Education Coordinating Board may not by rule

set training requirements for trustees of junior college districts.

A junior college district is not authorized to request an attorney

general opinion under section 402.042(b)(6) of the Government

Code.

Very truly yours,

DAN MORALES

Attorney General of Texas

WILL PRYOR

First Assistant Attorney General

MARY KELLER

Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret.)

Special Assistant Attorney General

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RENEL4 HICKS

Special Assistant Attorney General

MADELEINE B. JOHNSON

Chair, Opinion Committee

Prepared by Sarah Woelk

Assistant Attorney General

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