Can a Texas school board move a single-member trustee into a new at-large seat?

Plain-English summary

The chair of the Texas House Committee on Business and Industry (the request came from his predecessor as chair) asked the Attorney General about the Beaumont Independent School District's plan to change how it elects trustees. The district's voters had voted to move from seven single-member districts to five single-member districts and two at-large positions, effective with the May 2013 election. Under a proposed transition plan, the board would appoint one of its current single-member district trustees, whose term was set to expire in May 2015, to one of the new at-large positions, which would expire in May 2017. The question was whether the board could make that appointment.

The opinion first cleared away a threshold argument. The district's attorney contended that Education Code sections 11.052 and 11.053 did not apply because the district already used a single-member scheme: the predecessor statute (former section 23.024) had a subsection (j) barring its application to districts that already elected trustees from single-member districts. But in 1995 the Legislature revised and renumbered the Education Code and removed that subsection. Citing the rule that deleting statutory language signals an intent to remove its effect, the opinion concluded sections 11.052 and 11.053 now apply to any district that adopts a plan under section 11.052. The opinion also addressed a separate objection that the AG could not answer a committee chair's request, explaining that Government Code section 402.042 lists "a committee of a house of the legislature" as an authorized requestor and that the office has long honored requests from committee chairs.

On the merits, the opinion read section 11.053's plain language. When a district adopts a transition plan that lets current trustees serve out their terms, the new trustee-district and at-large positions "shall be filled as the staggered terms of trustees then in office expire," and "shall" creates a mandatory duty. The board's plan to appoint a current trustee, whose term expired in 2015, to a new at-large position running from 2013 to 2017 contravened that instruction. Section 11.053 required the board to fill the new at-large position when a current trustee's term expired (in 2013 or 2015), not to install someone in it for a longer, mismatched term. So the opinion concluded the board may not appoint one of its current single-member district trustees, whose term expired in May 2015, to a new at-large position expiring in May 2017.

Currency note

This opinion was issued in 2013. 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 Beaumont ISD board and similar transitioning districts (as the opinion described it): The opinion told the board it could not appoint a sitting single-member trustee (term to 2015) into a new at-large seat running to 2017; under section 11.053 the new positions are filled as the staggered terms of current trustees expire.

School district trustees and voters (as the opinion described it): The opinion described section 11.053 as keeping current trustees in office for the remainder of their terms during a transition, with new seats opening up as those terms expire, rather than through appointment to longer terms.

Anyone questioning who may request an AG opinion (as the opinion described it): The opinion explained that a committee of a house of the legislature is an authorized requestor under section 402.042(b)(7), and that the office's long-standing practice is to answer requests from committee chairs.

Common questions

Can a Texas school board appoint a current single-member trustee to a new at-large seat during a transition?
No, according to the opinion. It read Education Code section 11.053 to require new positions to be filled as the staggered terms of trustees then in office expire, so the Beaumont ISD board could not appoint a sitting trustee whose term ran to 2015 into a new at-large seat running to 2017.

Do these election-scheme statutes apply to a district that already uses single-member districts?
Yes. The opinion explained that the old prohibition on applying the statute to existing single-member districts (former subsection (j)) was deleted in 1995, which signaled the Legislature no longer intended that limit, so sections 11.052 and 11.053 apply to any district adopting a plan under section 11.052.

How are the new seats supposed to be filled under a transition plan?
Under section 11.053 as described, the new trustee-district and at-large positions are filled as the staggered terms of the trustees then in office expire, and the board sets the order in which positions will be filled before the first election after redistricting.

Can a legislative committee chair even request an attorney general opinion?
Yes. The opinion noted that section 402.042(b)(7) authorizes a committee of a house of the legislature to request an opinion, and the office has a long-standing practice of responding to requests from committee chairs.

Background and statutory framework

The opinion construed chapter 11 of the Education Code, which governs the election of independent school district trustees. Section 11.052 authorizes a board to adopt a single-member or mixed (at least 70 percent single-member, remainder at-large) election scheme, with subsection (e) allowing voters to petition for a specific manner of election and subsection (h) setting the default post-redistricting method (all positions filled, then trustees draw lots for staggered terms). Section 11.053 provides the alternative transition plan at issue: current trustees may serve out their terms, and the new trustee-district and at-large positions "shall be filled as the staggered terms of trustees then in office expire," with the board determining the order before the first election.

For interpretation, the opinion relied on Entergy Gulf States, Inc. v. Summers (deleting statutory language indicates intent to remove its effect; and giving effect to legislative intent), City of DeSoto v. White (plain language is the surest guide to intent), and Helena Chem. Co. v. Wilkins ("shall" generally creates a mandatory duty). It traced the deleted subsection (j) to former section 23.024 (Act of May 30, 1983) and the 1995 recodification (Act of May 27, 1995). On the procedural objection, it cited Government Code section 402.042(b)(7) and a prior opinion, GA-0685 (2008), recognizing committee-chair requests.

Citations

Cases:

• Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 443 (Tex. 2009)
• City of DeSoto v. White, 288 S.W.3d 389, 394 (Tex. 2009)
• Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001)

Statutes:

• Tex. Educ. Code Ann. §§ 11.052-.62 (West 2006 & Supp. 2012); § 11.052(a); § 11.052(e); § 11.052(h); § 11.053; § 11.053(b)
• Tex. Gov't Code Ann. § 402.042(b)(7) (West 2005)

Other authority:

• Tex. Att'y Gen. Op. No. GA-0685 (2008)
• Act of May 30, 1983, 68th Leg., R.S., ch. 316, 1983 Tex. Gen. Laws 1687, 1690 (former section 23.024)
• Act of May 27, 1995, 74th Leg., R.S., ch. 260, 1995 Tex. Gen. Laws 2207, 2223

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0996
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2013/ga0996.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

March 19, 2013

The Honorable Rene Oliviera Opinion No. GA-0996
Chair, Committee on Business and Industry
Texas House of Representatives Re: Whether a school district board of trustees
Post Office Box 2910 may appoint a single-member district trustee to
Austin, Texas 78768-2910 an at-large position as the district transitions to a
new election scheme (RQ-1091-GA)

Dear Representative Oliviera:

Your predecessor explained that the voters in the Beaumont Independent School District (the "District") voted to change the District's trustee election scheme from seven single-member districts to five single-member districts and two at-large positions.[1] He further explained that the transition is "to be effective in the May 2013 election." Request Letter at 1. Under a proposed transition plan, the District's Board of Trustees (the "Board") would appoint one of its current single-member district trustees, whose term will expire in May 2015, to one of the new at-large positions that will expire in May 2017. Your predecessor asked whether the Board may make such an appointment to a new at-large position that the Board plans to fill this year.[2] Id. at 3.

Chapter 11 of the Education Code describes procedures for the election of an independent school district's board of trustees. See TEX. EDUC. CODE ANN. §§ 11.052-.62 (West 2006 & Supp. 2012). Section 11.052 authorizes a board of trustees to adopt an election scheme in which "trustees of the district are to be elected from single-member trustee districts or . . . not fewer than 70 percent of the members of the board of trustees are to be elected from single-member trustee districts with the remaining trustees to be elected from the district at large." Id. § 11.052(a) (West 2006).[3] Subsection 11.052(h) provides that "[a]t the first election at which some or all of the trustees are elected in a manner authorized by this section and after each redistricting, all positions on the board shall be filled. The trustees then elected shall draw lots for staggered terms . . . ." Id. § 11.052(h). While section 11.052(h) establishes the default method for holding elections after redistricting, section 11.053 provides an alternative transition plan that allows current trustees to remain in office until their terms expire:

(a) The board of trustees of an independent school district that adopts a redistricting plan under Section 11.052 may provide for the trustees in office when the plan is adopted or the school district is redistricted to serve for the remainder of their terms in accordance with this section.

(b) The trustee district and any at-large positions provided by the district's plan shall be filled as the staggered terms of trustees then in office expire. Not later than the 90th day before the date of the first election from trustee districts and after each redistricting, the board shall determine the order in which the positions will be filled.

Id. § 11.053.

Before considering the application of these provisions to the District's proposed transition plan, we first address the more general question of whether these statutory provisions apply only "to an election scheme change from an at-large system to single members." Request Letter at 3. As the request letter notes, the attorney for the District argues that sections 11.052 and 11.053 do not apply to the District because it already has a single-member district scheme.[4] Her argument is that when the predecessor to section 11.052 was originally enacted as section 23.024, it included a subsection (j), which expressly prohibited the application of the section to an independent school district that already elected trustees from single-member districts.[5] In 1995, the Legislature revised, reenacted and renumbered significant portions of the Education Code.[6] Along with other changes, the Legislature removed subsection (j), suggesting that the Legislature no longer intended to prohibit the application of section 11.052 to school districts that already elect trustees from single-member trustee districts. See Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 443 (Tex. 2009) ("[D]eletion of language better indicates the Legislature's intent to remove its effect, rather than to preserve it."). Thus, section 11.052 and section 11.053 apply to any school districts that choose to adopt a plan authorized by section 11.052.

In construing these provisions as they apply to the District, our primary objective is to give effect to the Legislature's intent. Id. at 437. The plain language of the statute is the surest guide to discerning that intent. City of DeSoto v. White, 288 S.W.3d 389, 394 (Tex. 2009). When a District adopts a transition plan pursuant to section 11.053, the statute's plain language requires that the new trustee positions "shall be filled as the staggered terms of trustees then in office expire." TEX. EDUC. CODE ANN. § 11.053(b) (West 2006) (emphasis added); see Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001) (explaining that the term "shall" is generally recognized as creating a mandatory duty or obligation).

The Board's plan to appoint a current trustee, whose term expires in 2015, to a new, at-large position that begins in 2013 and would expire in 2017 contravenes the Legislature's clear instructions under section 11.053 to fill positions as they expire. Instead, section 11.053 requires the Board to fill the new at-large position when a current trustee's term expires in either 2013 or 2015. TEX. EDUC. CODE ANN. § 11.053(b) (West 2006). Thus, the Board may not appoint one of the current single-member district trustees, whose term will expire in May 2015, to a new at-large position that will expire in May 2017.

SUMMARY

Pursuant to Education Code section 11.053, the Board of Trustees of Beaumont Independent School District may not appoint one of its current single-member district trustees, whose term will expire in May 2015, to a new at-large position that will expire in May 2017.

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chairman, Opinion Committee

Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Joe Deshotel, Chair, House Comm. on Bus. & Industry, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Sept. 28, 2012), http://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] A brief submitted in response to the request argues that the "attorney general is not authorized to render an opinion for a chairman or individual member of a committee." See Brief from David Vann de Cordova, Jr., to Honorable Greg Abbott, Tex. Att'y Gen. at 2 (Oct. 18, 2012) (on file with the Op. Comm.). Section 402.042 of the Government Code includes, among the list of authorized requestors, "a committee of a house of the legislature." TEX. GOV'T CODE ANN. § 402.042(b)(7) (West 2005). With regard to that provision, the Legislature has established a precedent of allowing the chairperson of a committee to request an opinion under that section, and the long standing practice of this office has been to respond to those requests. See Tex. Att'y Gen. Op. No. GA-0685 (2008) at 2-3. If the Legislature intended some other practice, it could have amended the statute to require another procedure.

[3] Subsection (e) allows voters of the school district to petition the board of trustees "requesting submission to the voters of the proposition that trustees of the district be elected in a specific manner . . . that the board could have ordered on its own motion." TEX. EDUC. CODE ANN. § 11.052(e) (West 2006).

[4] Request Letter at 3; see also Brief from Melody G. Chappell, General Counsel, Beaumont Indep. Sch. Dist., to Office of the Tex. Att'y Gen. at 2-3 (Nov. 15, 2012) (on file with the Op. Comm.).

[5] See Act of May 30, 1983, 68th Leg., R.S., ch. 316, 1983 Tex. Gen. Laws 1687, 1690 ("(j) This section does not apply to an independent school district that elects trustees from single-member trustee districts in accordance with Section 23.023 of this code or other general or special law.").

[6] See Act of May 27, 1995, 74th Leg., R.S., ch. 260, 1995 Tex. Gen. Laws 2207, 2223.