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