Can a Texas county vote early to appoint an emergency services district board member?

Plain-English summary

Robert Vititow, the Rains County Attorney, asked the Attorney General a timing question about emergency services districts. These districts have a governing board, and under section 775.034 of the Health and Safety Code the county commissioners court appoints the board members. Subsection (d) says that "[o]n January 1 of each year, the commissioners court shall appoint a successor" for each commissioner whose term has expired. The question was whether that language means the court has to hold its vote precisely on January 1, or whether it can vote on an earlier date for a term that begins January 1.

The opinion read the statute to care about the date the appointment takes effect, not the date of the vote. Subsection (c) makes clear the term begins on January 1, but nothing in the statute says what happens if the court fails to vote on that exact day, and nothing makes the vote date itself a statutory requirement. So subsection (d) was read to require only that, whenever the court meets, the actual appointment takes place on January 1.

Two practical points reinforced that reading. January 1 is a legal holiday on which government bodies are typically closed, so insisting the vote happen that day would be impractical. And an appointee has to be notified, decide whether to accept, tell the court, take the oath, and get ready to serve, none of which is realistic if the vote cannot happen until the term has already started. Citing the principle that statutes are read to avoid absurd results, the opinion concluded the commissioners court may vote before January 1 for a term that begins January 1. Because that answered the first question yes, the opinion did not reach the county attorney's second question.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The Rains County Attorney (as the opinion described it): The opinion answered the county attorney's first question in the affirmative, reading section 775.034 to let the commissioners court vote before January 1 for a board term that begins January 1, and so it did not reach the second question.

County commissioners courts (as the opinion described it): The opinion read the statute to govern the effective date of an emergency services district board appointment (January 1), not the date of the appointing vote, so the court could take the vote earlier.

Emergency services district board appointees (as the opinion described it): The opinion noted that an appointee must be notified, decide whether to accept, notify the court, and take the oath, and treated an earlier vote as consistent with giving time for those steps before the January 1 term start.

Common questions

Does the commissioners court have to vote exactly on January 1 to appoint an ESD board member?
According to the opinion, no. The statute fixes January 1 as the date the appointment takes effect, but the date of the vote is not itself a statutory requirement, so the court may vote earlier.

Why did the opinion allow an earlier vote?
It read section 775.034(d) as concerned only with the appointment's effective date, noted that January 1 is a legal holiday when offices are usually closed, and reasoned that requiring the vote on that day would create an unworkable, rushed process the Legislature did not intend.

When does the new board member's term actually start?
The opinion treated the term as beginning January 1 under subsection (c), regardless of when the appointing vote occurs.

What about the county attorney's second question?
The opinion did not address it. Because it answered the first question yes, it had no need to reach the second.

Background and statutory framework

Section 775.034 of the Health and Safety Code governs how a county commissioners court appoints the board of emergency services commissioners for a single-county emergency services district. Subsection (c) provides that the initial commissioners serve until January 1 of the year following the district election, and subsection (d) provides that "[o]n January 1 of each year, the commissioners court shall appoint a successor for each emergency services commissioner whose term has expired." Tex. Health & Safety Code Ann. § 775.034(a), (c), (d) (West 2010).

The opinion read subsection (c) to fix the term's start at January 1 while treating the vote date as outside the statute's concern. Tex. Health & Safety Code Ann. § 775.034(c), (d). It observed that January 1 is a legal holiday on which government offices are generally closed, citing Government Code provisions recognizing January 1 as a national holiday, treating a national holiday as a legal holiday, and allowing public offices to close on a legal holiday. Tex. Gov't Code Ann. § 662.003(a)(1) (West 2004); id. §§ 662.021, 662.022. Applying the canon that statutes are interpreted to avoid an absurd result, drawn from Carreras v. Marroquin, 339 S.W.3d 68, 73 (Tex. 2011), the opinion concluded the vote may occur before January 1.

Citations

Cases:

• Carreras v. Marroquin, 339 S.W.3d 68, 73 (Tex. 2011)

Statutes:

• Tex. Health & Safety Code Ann. § 775.034(a), (c), (d) (West 2010)
• Tex. Health & Safety Code Ann. § 775.034(c)
• Tex. Health & Safety Code Ann. § 775.034(d)
• Tex. Gov't Code Ann. § 662.003(a)(1) (West 2004)
• Tex. Gov't Code Ann. § 662.021
• Tex. Gov't Code Ann. § 662.022

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0941
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2012/ga0941.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

May 29, 2012

The Honorable Robert Vititow Opinion No. GA-0941
Rains County Attorney
Post Office Box 1075 Re: Whether, under section 775.034, Health and
Emory, Texas 75440 Safety Code, a county commissioners court may
meet to vote on the appointment of a member of
the governing board of an emergency services
district prior to January 1 of the year in which the
appointment takes effect (RQ-1027-GA)

Dear Mr. Vititow:

You ask whether, under the terms of section 775.034 of the Health and Safety Code, a county commissioners court may meet to vote on the appointment of a member of the governing board of an emergency services district prior to January 1 of the year in which the appointment takes effect.[1] Section 775.034 of the Health and Safety Code provides, in relevant part:

(a) The commissioners court of a county in which a single county [emergency services] district is located shall appoint a five member board of emergency services commissioners to serve as the district's governing body ....

(c) After the votes are canvassed and the commissioners court enters the order creating the district, the commissioners court shall appoint the initial emergency services commissioners to serve until January 1 of the year following the district election ....

(d) On January 1 of each year, the commissioners court shall appoint a successor for each emergency services commissioner whose term has expired.

TEX. HEALTH & SAFETY CODE ANN. § 775.034(a), (c), (d) (West 2010). You question whether subsection (d) requires the appointment of an emergency services commissioner precisely on January 1, or, in the alternative, whether the county commissioners court may make the appointment on a prior date for the term that begins on January 1.

Subsection (c) of section 775.034 does make clear that the term of the office at issue begins on January 1. Id. § 775.034(c). But the statute does not state the consequences of a failure to hold a vote to appoint on the precise date of January 1. See id. The date of the vote is not a matter of statutory consideration. The statute's only concern is the date of appointment. As a consequence, we read subsection (d) to require only that, regardless of the date on which the commissioners court meets to vote on the appointment at issue, the actual appointment shall take place on January 1. See id. § 775.034(d). We take note of the incontrovertible fact that January 1 is a legal holiday on which governmental bodies are invariably closed. TEX. GOV'T CODE ANN. §§ 662.003(a)(1) (West 2004) (January 1 is a national holiday), 662.021 (a national holiday is a "legal holiday"), 662.022 (recognizing that a public office of this state may be closed on a legal holiday).[2]

In addition, to disallow prior to January 1 a meeting to vote on the appointment to an office whose term begins on that date would necessarily result in the appointee's failure to begin her term until a later time. Any appointee must be notified of the appointment, determine whether to accept the appointment, notify the commissioners court of her decision, take the oath of office, and prepare to begin the exercise of her duties. We do not believe that the Legislature intended to prescribe such a rushed process. See Carreras v. Marroquin, 339 S.W.3d 68, 73 (Tex. 2011) (stating courts will "interpret statutes to avoid an absurd result").

We conclude that a county commissioners court may meet to vote on the appointment of a member of the governing board of an emergency services district on a date prior to January 1 of the year in which the appointment takes effect. Because we answer your first question in the affirmative, we need not address your second question.

SUMMARY

A county commissioners court may meet to vote on the appointment of a member of the governing board of an emergency services district on a date prior to January 1 of the year in which the appointment takes effect.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Robert Vititow, Rains Cnty. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Dec. 7, 2011), http://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] January 1 is a legal holiday in Rains County. Tel. conversations with Misty Johnson, Legal Assistant to Rains Cnty. Att'y and Kathy Lucas, Assistant to Rains Cnty. Judge (Mar. 14, 2012).