Does a Texas school board trustee who resigns still have to file a personal financial statement?

Plain-English summary

El Paso County Attorney JoAnne Bernal asked the Attorney General three questions about a then-new financial disclosure law for certain school district trustees. Section 11.0641 of the Education Code, enacted in 2013, required covered trustees to file a personal financial statement with the board of trustees and the commissioners court "beginning January 1, 2015." The law applied only to school districts in a county on the international border that contained a municipality of 600,000 or more, which describes El Paso. A statement filed under section 11.0641 is treated as if the trustee were a state officer and the commissioners court were the Texas Ethics Commission, so the trustee had to file by April 30 each year and report financial activity for the preceding calendar year. The practical upshot: on January 1, 2015, a covered trustee had until April 30, 2015, to report 2014 financial activity.

Bernal's first two questions asked what happens when a trustee resigns. The AG looked to the Texas Ethics Commission, which administers the chapter 572 filing scheme, and to the constitutional holdover provision. The Commission's instructions say the filing requirement reaches anyone who served as a state officer for any part of the period from January 1 of the year the statement is due through April 30. The holdover provision (article XVI, section 17) keeps an officer in office until a successor is duly qualified. Putting those together, the AG concluded that a covered trustee who held office at any time on or after January 1, 2015, including only as a holdover, had to file a 2014 statement by April 30, 2015. A trustee who had resigned and whose successor was already qualified and sworn in before January 1, 2015, did not have to file a 2014 statement.

Bernal's third question asked whether the El Paso County Commissioners Court could adopt its own rule requiring trustees to file a statement for every year, or part of a year, they served, even after resigning. The AG said no. A commissioners court has only the powers the Constitution or Legislature expressly delegates, plus those necessarily implied to carry out its duties. Section 11.0641 gives the commissioners court one job in this area: deciding whether a required statement is late and, if so, assessing a civil penalty within limits. It does not authorize the court to require additional statements, and an administrative rule cannot impose burdens or conditions beyond what the statute allows. The AG stressed that this conclusion came from the statutory text, not from any view about whether the proposed rule was a good idea, and noted the Legislature could expand the filing requirement if it chose to.

Currency note

This opinion was issued in 2014. 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

County Attorney Bernal and the El Paso County Commissioners Court (as the opinion described it): The opinion answered that a covered trustee in office on or after January 1, 2015, including in holdover status, owed a 2014 statement, while a trustee whose successor was qualified before that date did not. On the third question, the opinion concluded the commissioners court lacked authority to adopt a rule imposing filing burdens beyond the statute, describing the court's role as limited to determining lateness and assessing penalties.

School district trustees in covered districts (as the opinion described it): The opinion described the section 11.0641 filing duty as turning on whether the trustee held office at any time on or after January 1, 2015 (a holdover counts), with the statement due April 30, 2015, covering 2014 financial activity. It described a trustee whose successor was duly qualified and sworn in before January 1, 2015, as not required to file a 2014 statement.

Anyone tracking the Texas Ethics Commission filing rules (as the opinion described it): The opinion described the Commission as charged with administering and enforcing the chapter 572 filing scheme, described the Commission's instruction that the requirement reaches a person who served for any part of the period from January 1 through April 30, and stated that courts would likely defer to that reasonable interpretation.

Common questions

Did a school trustee who resigned still have to file a financial statement?
The AG concluded it depended on timing. A covered trustee who held office at any time on or after January 1, 2015 (including only as a holdover because no successor had qualified) had to file a 2014 statement by April 30, 2015. A trustee whose successor was qualified and sworn in before January 1, 2015, did not.

What is a "holdover," and why did it matter here?
The AG explained that under article XVI, section 17 of the Texas Constitution, an officer continues to perform the office's duties until a successor is duly qualified. So a trustee who tried to resign but had no qualified successor still held office on January 1, 2015, and was caught by the filing requirement.

Which school districts did section 11.0641 apply to?
The AG noted the statute applied only to the board of trustees of an independent school district located in a county on the international border that contains a municipality with a population of 600,000 or more.

Could the county commissioners court add its own filing requirements?
No. The AG concluded the commissioners court lacked authority to adopt a rule requiring trustees to file statements for partial years of service, because its power is limited to what the statute grants (determining lateness and penalties) and a rule cannot add burdens beyond the statute.

When was the statement due and what did it cover?
The AG explained that, treated like a state officer's filing under chapter 572, the statement was due not later than April 30 each year and had to account for the individual's financial activity for the preceding calendar year.

Background and statutory framework

Section 11.0641 of the Education Code, enacted in 2013, required certain school district trustees to file a personal financial statement with the board of trustees and the commissioners court "beginning January 1, 2015" (Tex. Educ. Code Ann. § 11.0641(a)-(b) (West Supp. 2013)). The provision applied only to a board of trustees of an independent school district located in a county on the international border in which a municipality with a population of 600,000 or more is located (id. § 11.0641(a)). A statement filed under section 11.0641 is governed by chapter 572, subchapter B, of the Government Code "as if the trustee were a state officer and the commissioners court ... were the Texas Ethics Commission" (id. § 11.0641(c); Tex. Gov't Code Ann. §§ 572.021-.034 (West 2012 & Supp. 2013)). State officers, and thus covered trustees, must file "[n]ot later than April 30 each year" (Tex. Gov't Code Ann. § 572.026(a) (West 2012)) and must include "an account of the financial activity of the individual ... for the preceding calendar year" (id. § 572.023(a)).

The Texas Ethics Commission administers and enforces the chapter 572 filing scheme (id. § 571.061(1)), and its instructions state that the filing requirement extends to each person who served as a state officer for any part of the period beginning January 1 of the year the statement is due and ending April 30 (id. § 572.030(b)). The AG concluded a court would likely defer to that reasonable interpretation (Osterberg v. Peca, 12 S.W.3d 31, 51 (Tex. 2000)). Read together with the constitutional holdover provision, under which officers "shall continue to perform the duties of their offices until their successors shall be duly qualified" (Tex. Const. art. XVI, § 17), a covered trustee in office at any time on or after January 1, 2015, including in a holdover capacity, owed a 2014 statement by April 30, 2015 (Tex. Educ. Code Ann. § 11.0641(b) (West Supp. 2013); Tex. Gov't Code Ann. § 572.023(a) (West 2012)).

On the third question, a commissioners court's power "is limited to that which is expressly delegated to it by the Texas Constitution or Legislature, or necessarily implied to perform its duties" (City of San Antonio v. City of Boerne, 111 S.W.3d 22, 29 (Tex. 2003)). Section 11.0641 assigns the commissioners court the duty to determine whether a required statement is late and, if so, to assess a civil penalty within limits (Tex. Educ. Code Ann. § 11.0641(e) (West Supp. 2013)), but does not authorize rules requiring additional statements; an administrative rule "may not impose additional burdens, conditions or restrictions" beyond what a statute authorizes (Tex. Dep't of Pub. Safety v. Story, 115 S.W.3d 588, 592 n.10 (Tex. App.-Waco 2003, no pet.)). The AG concluded the commissioners court therefore lacked authority to adopt the contemplated rule, adding that the result was dictated by the statutory text and that the Legislature could expand the requirement if it wished.

Citations

Constitutional and statutory provisions:

• Tex. Const. art. XVI, § 17 (holdover provision)
• Tex. Educ. Code Ann. § 11.0641(a)-(b) (West Supp. 2013) (financial statement requirement beginning January 1, 2015)
• Tex. Educ. Code Ann. § 11.0641(a) (West Supp. 2013) (districts covered by the statute)
• Tex. Educ. Code Ann. § 11.0641(b) (West Supp. 2013) (filing obligation)
• Tex. Educ. Code Ann. § 11.0641(c) (West Supp. 2013) (treated as a chapter 572 filing)
• Tex. Educ. Code Ann. § 11.0641(e) (West Supp. 2013) (commissioners court determines lateness and penalty)
• Tex. Gov't Code Ann. §§ 572.021-.034 (West 2012 & Supp. 2013) (personal financial statement scheme)
• Tex. Gov't Code Ann. § 572.026(a) (West 2012) (April 30 filing deadline)
• Tex. Gov't Code Ann. § 572.023(a) (West 2012) (preceding calendar year)
• Tex. Gov't Code Ann. § 571.061(1) (West 2012) (Ethics Commission administration)
• Tex. Gov't Code Ann. § 572.030(b) (West 2012) (Commission identifies filing dates and forms)

Cases:

• Osterberg v. Peca, 12 S.W.3d 31, 51 (Tex. 2000)
• City of San Antonio v. City of Boerne, 111 S.W.3d 22, 29 (Tex. 2003)
• Tex. Dep't of Pub. Safety v. Story, 115 S.W.3d 588, 592 n.10 (Tex. App.-Waco 2003, no pet.)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1082
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2014/ga1082.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

September 23, 2014

The Honorable JoAnne Bernal Opinion No. GA-1082
El Paso County Attorney
500 East San Antonio, Room 503 Re: Whether section 11.0641 of the Education
El Paso, Texas 79901 Code requires school district trustees to file
personal financial statements in specific
circumstances (RQ-1194-GA)

Dear Ms. Bernal:

You ask three questions regarding the filing of personal financial statements by school district trustees who resign from office.[1] Your questions arise from section 11.0641 of the Education Code, a provision enacted in 2013 that requires certain school district trustees[2] to file a financial statement with the board of trustees and the commissioners court "beginning January 1, 2015." Act of May 22, 2013, 83rd Leg., R.S., ch. 853, §§ 2-3, 2013 Tex. Gen. Laws 2200, 2201 (codified at TEX. EDUC. CODE ANN. § 11.0641(a)-(b) (West Supp. 2013)). A financial statement filed pursuant to section 11.0641 is governed by chapter 572, subchapter B, of the Government Code "as if the trustee were a state officer and the commissioners court ... were the Texas Ethics Commission." TEX. EDUC. CODE ANN. § 11.0641(c) (West Supp. 2013); see also TEX. GOV'T CODE ANN. §§ 572.021-.034 (West 2012 & Supp. 2013) (governing the contents, timeliness of filing, and public inspection of personal financial statements). State officers, and consequently school district trustees, must file the statement "[n]ot later than April 30 each year." TEX. GOV'T CODE ANN. § 572.026(a) (West 2012). The financial statement must include "an account of the financial activity of the individual ... for the preceding calendar year." Id. § 572.023(a). Thus, pursuant to section 11.0641, on January 1, 2015, a school district trustee has until April 30, 2015, to file a statement concerning that trustee's personal financial activity that occurred during the 2014 calendar year.

Your first two questions, which we address together, concern the effect of a resignation on the financial statement filing requirement. You ask whether a school district trustee "who resigns before and does not hold over" the office either "after January 1, 2015" or "between January 1, 2015 and April 29th 2015" is required by section 11.0641 to file a financial statement for the 2014 calendar year. Request Letter at 1, 3. The Texas Ethics Commission (the "Commission") is charged with administering and enforcing the financial statement filing scheme of chapter 572. TEX. GOV'T CODE ANN. § 571.061(1) (West 2012). Pursuant to that authority, the Commission has issued instructions[3] stating that the filing requirement "extends to each person who served as a state officer for any part of the period beginning January 1 of the year the statement is due and ending April 30." TEX. ETHICS COMM'N, FORM PFS-INSTRUCTION GUIDE at 1 (June 19, 2014); see also TEX. GOV'T CODE ANN. § 572.030(b) (West 2012) (requiring the Commission to identify the filing dates for financial statements and provide forms and instructions on its Internet website). Courts would likely defer to the Commission's interpretation of the filing requirement because it is reasonable and not contrary to the statute. See Osterberg v. Peca, 12 S.W.3d 31, 51 (Tex. 2000) (stating that "[a] reasonable construction of a statute by an administrative agency charged with its enforcement is entitled to great weight").

Under article XVI, section 17 of the Texas Constitution, known as the holdover provision, all state officers "shall continue to perform the duties of their offices until their successors shall be duly qualified." TEX. CONST. art. XVI, § 17. If a trustee resigns prior to January 1, 2015, but a successor is not duly qualified and sworn into office prior to that date, then the trustee who resigned still holds office on January 1 by operation of the constitutional holdover provision. Id. Likewise, a trustee who resigns between January 1, 2015, and April 29, 2015, is still an officeholder on January 1. Under section 11.0641, a school district trustee holding office at any time on or after January 1, 2015, including in a holdover capacity, must file a financial statement by April 30, 2015, for the 2014 calendar year. TEX. EDUC. CODE ANN. § 11.0641(b) (West Supp. 2013); TEX. GOV'T CODE ANN. § 572.023(a) (West 2012). A school district trustee who has resigned and whose successor has been qualified and sworn into office prior to January 1, 2015, is not required to file a 2014 financial statement under section 11.0641.

Your last question is whether the commissioners court may "adopt a rule requiring school trustees who resign before and do not hold over after January 1, 2016 to file a personal financial statement under the new statute such that a trustee must file a financial statement for every year, or part of a year, during which he held office after January 1, 2015." Request Letter at 1, 4. By way of example, you explain that under such a rule, "a trustee who leaves office during 2015 and is replaced before the end of the 2015 calendar year either by resignation [or] end of term would still be subject to filing a personal financial statement in April of 2016 for the period of time he served as a trustee during 2015." Id. at 4-5.

"[A] commissioners court's power is limited to that which is expressly delegated to it by the Texas Constitution or Legislature, or necessarily implied to perform its duties." City of San Antonio v. City of Boerne, 111 S.W.3d 22, 29 (Tex. 2003). Section 11.0641 assigns a commissioners court the specific duty to "determine from any available evidence whether a statement required to be filed under [section 11.0641] is late," and if it is late, to determine the amount of a civil penalty, subject to certain limitations. TEX. EDUC. CODE ANN. § 11.0641(e) (West Supp. 2013). Section 11.0641 does not give the commissioners court express authority to promulgate rules requiring the filing of additional financial statements. Such authority would be implied only if the promulgation of the rules was "necessary to accomplish its assigned duty." City of San Antonio, 111 S.W.3d at 28. The rule you describe is not related to the assigned duty of determining timeliness of statements and, instead, imposes additional burdens and conditions in excess of the existing statutory filing requirements. An administrative rule "'may not impose additional burdens, conditions or restrictions'" beyond what is authorized by statute. Tex. Dep't of Pub. Safety v. Story, 115 S.W.3d 588, 592 n.10 (Tex. App.-Waco 2003, no pet.) (citation omitted). Thus, the commissioners court lacks authority to adopt a rule requiring a school district trustee who has resigned and whose successor has been duly qualified and sworn into office prior to January 1, 2016, to file a personal financial statement under section 11.0641 of the Education Code concerning the personal financial activity that occurred during the 2015 calendar year. Our conclusion is dictated by the statutory text chosen by the Legislature and is not a judgment about the wisdom of the commissioners court's contemplated rule. If the Legislature wishes to expand the section 11.0641 filing requirements to require filing by a trustee who served for only part of the preceding year, it can do so.

SUMMARY

A school district trustee subject to section 11.0641 of the Education Code who holds office at any time on or after January 1, 2015, including in a holdover capacity, must file a financial statement under section 11.0641 for the 2014 calendar year. A school district trustee who has resigned and whose successor has been duly qualified and sworn into office prior to January 1, 2015, is not required to file a 2014 financial statement under section 11.0641.

The El Paso County Commissioners Court lacks authority to impose additional burdens or conditions in excess of the existing statutory filing requirements chosen by the Legislature.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

Becky P. Casares
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable JoAnne Bernal, El Paso Cnty. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Apr. 3, 2014), http://www.texasattorneygeneral.gov/opin ("Request Letter").

[2] Section 11.0641 "applies only to the board of trustees of an independent school district that is located in a county that is located on the international border and in which a municipality with a population of 600,000 or more is located." TEX. EDUC. CODE ANN. § 11.0641(a) (West Supp. 2013).

[3] The Commission's instructions illustrate a holdover situation as follows: "For example, a person who resigned or whose term ended in November of one year will need to file a personal financial statement covering that year if the person was not replaced until January 1 of the following year or later." TEX. ETHICS COMM'N, FORM PFS-INSTRUCTION GUIDE, at 1 (June 19, 2014) (emphasis added). See also TEX. ETHICS COMM'N, HELPFUL HINTS FOR FILING YOUR PERSONAL FINANCIAL STATEMENT (June 19, 2014) ("Assume for example, that you resign from a state board on October 3, 2005, but your replacement is not appointed until February 1, 2006. You will be required to file the report due April 30, 2006. You will not be required to file in 2007.").