If two hospital district board candidates tie in the election, do they need a runoff or can both serve full terms?

Plain-English summary

Andrew Lucas, the Somervell County Attorney, asked the Attorney General about a tie vote on a hospital district board. The Somervell County Hospital District was created under chapter 286 of the Health and Safety Code, with a seven-member board elected at large. At the May 2014 election of the initial permanent board, seven candidates out of a field of eighteen received the highest vote totals and were elected, but two of them tied for the fourth-highest number of votes. Lucas asked whether those two tied directors both serve two-year terms, or whether the district had to hold a tie-breaking election under section 2.002 of the Election Code.

The AG started with the runoff question and concluded no second election was needed. Section 2.002 of the Election Code authorizes a second election only when, in an election requiring a plurality vote, two or more candidates tie for the votes "required to be elected" to the same office. Here, seven candidates received the votes required to be elected to the seven at-large seats, so every office was filled and no candidates tied for an unfilled office. The runoff provision exists to fill an office, not to decide whether a director who has already been elected serves a one-year or a two-year term.

That left the real question: how to assign the terms. Section 286.042 says the directors equal to a "majority of the directors who receive the highest number of votes" serve two-year terms and the rest serve one-year terms, but it does not say what happens when two directors tie. The AG observed that the by-place and by-precinct subsections (c) and (d) were each designed to stagger roughly half the board every year, and the Legislature likely intended the at-large subsection (b) to work the same way, but the words it chose do not cover a tie. Because courts read a clear statute as written unless that produces an absurd result, the AG concluded a court could hold that two directors who both received the fourth-highest total are included in the "majority" who serve two-year terms. The AG added that nothing appeared to stop the tied directors from agreeing to settle the matter by casting lots, a method the Legislature has used elsewhere.

Currency note

This opinion was issued in 2015. 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

Hospital district boards (as the opinion described it): The opinion described a chapter 286 district's at-large initial election as filling every seat when the right number of candidates receive the highest totals, even if two of them tie. It described the open issue as the length of the tied directors' terms, and said a court could include both tied directors in the "majority" who serve two-year terms under section 286.042(b)(2).

County election officials (as the opinion described it): The opinion described section 2.002 of the Election Code as authorizing a runoff only to fill an office where candidates tie for the votes required to be elected, and concluded that provision did not require or authorize a second election here because all seven seats were already filled.

The tied directors (as the opinion described it): The opinion described casting lots as a permissible way for the tied directors to agree which one serves the shorter term, noting the Legislature has recognized that method in other contexts though it was not specifically required here.

County attorney Lucas (as the opinion described it): The opinion framed its bottom line as a prediction of what a court could conclude, not a fixed rule, because section 286.042 does not address a tie, and it noted the creation petition's four-and-three split was likewise silent on a tie and so was not contrary to the statute.

Common questions

Do hospital district board candidates who tie have to hold a runoff?
The AG concluded no. The Election Code's runoff provision (section 2.002) applies only when a tie leaves an office unfilled. Here seven candidates won the seven seats, so there was no office to fill and no runoff was required.

If two candidates tie, do they both still get elected?
Yes. The AG explained that because seven candidates received more votes than the rest for seven at-large positions, all seven were elected, including the two who tied for fourth.

Do the tied directors serve one-year or two-year terms?
The AG said the statute does not directly answer that, but a court could conclude both tied directors are part of the "majority of the directors who receive the highest number of votes" and so both serve two-year terms under section 286.042(b)(2).

Can the board just draw lots to decide the terms?
The AG noted nothing appeared to prevent the tied directors from agreeing to cast lots to decide who serves the shorter term, and pointed out the Legislature has used casting lots elsewhere, though it was not specifically required in this situation.

Does the district's creation petition change the answer?
No. The AG explained the petition called for four two-year and three one-year terms but, like the statute, did not address a tie, so it was not contrary to the statutory election provisions.

Background and statutory framework

Chapter 286 of the Health and Safety Code governs certain county hospital districts. Section 286.042 lets a district elect its initial permanent directors at large, by place, or by a hybrid of precinct and at-large positions (Tex. Health & Safety Code Ann. § 286.042(b)-(d) (West 2010)). In an at-large district, the candidates receiving the highest number of votes become the directors, the number equal to a majority of them serve two-year terms, and the remaining directors serve one-year terms, after which all terms run two years with an election each year for the expiring seats (id. § 286.042(b)(1), (b)(2)-(3), (e)).

The Election Code's runoff provision authorizes a second election only when, in an election requiring a plurality vote, two or more candidates "tie for the number of votes required to be elected" to the same office (Tex. Elec. Code Ann. § 2.002(a) (West 2010)). Texas courts have long read predecessor versions of that rule as meant to apply where no one was actually elected, and have upheld the election of the correct number of candidates to fill the available positions even when some received an equal number of votes (Beeler v. Loock, 135 S.W.2d 644 (Tex. Civ. App.-Galveston 1939, writ dism'd)); the authority to hold an election must come from a statute or the constitution (Countz v. Mitchell, 38 S.W.2d 770 (Tex. 1931)).

Because section 286.042 does not address how to set terms when two at-large directors tie, the AG applied the rule that a court construes a clear statute as written unless doing so yields an absurd result (Tex. Lottery Comm'n v. First State Bank of DeQueen, 325 S.W.3d 628 (Tex. 2010)) and concluded a court could read both tied directors into the two-year "majority." The opinion also pointed to casting lots, a tie-resolution method the Legislature has used by statute elsewhere (Tex. Spec. Dist. Code Ann. § 7201.052(i) (West 2014), for the Agua Special Utility District).

Citations

Statutory provisions:

• Tex. Health & Safety Code Ann. § 286.042 (West 2010) (election of hospital district directors; at-large, by place, by precinct)
• Tex. Health & Safety Code Ann. § 286.042(b)(1), (b)(2) (West 2010) (highest-vote directors; majority serve two-year terms)
• Tex. Elec. Code Ann. § 2.002, § 2.002(a) (West 2010) (second election on a tie for the votes required to be elected)
• Tex. Spec. Dist. Code Ann. § 7201.052(i) (West 2014) (casting lots to determine terms)

Cases:

• Beeler v. Loock, 135 S.W.2d 644, 647 (Tex. Civ. App.-Galveston 1939, writ dism'd)
• Countz v. Mitchell, 38 S.W.2d 770, 774 (Tex. 1931)
• Tex. Lottery Comm'n v. First State Bank of DeQueen, 325 S.W.3d 628, 637-38 (Tex. 2010)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0002
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2015/kp0002.pdf

Original opinion text

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

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

February 11, 2015

The Honorable Andrew Lucas Opinion No. KP-0002
Somervell County Attorney
Post Office Box 1335 Re: Determination of the terms of office for
Glen Rose, Texas 76043 county hospital district board members who
received the same number of votes in the initial
election (RQ-1213-GA)

Dear Mr. Lucas:

You ask about the determination of the terms of office for members of a county hospital district board of directors when, in an at-large election of the members of the initial permanent board, two of the members received the same number of votes. [1] You inform us that the Somervell County Hospital District (the "District") was created pursuant to chapter 286 of the Health and Safety Code. Request Letter at 1. The petition to create the District calls for a board of seven directors who are to be elected at large. See id., Exhibit A ("Petition to Create the Somervell County Hospital District") (on file with the Op. Comm.).

Section 286.042 allows a chapter 286 hospital district to elect its initial permanent directors either at large, by place, or by a hybrid of precinct and at-large positions. TEX. HEALTH & SAFETY CODE ANN. § 286.042(b)-(d) (West 2010). For a district that elects its directors at large under subsection (b), "the appropriate number of candidates receiving the highest number of votes at the initial election of directors are directors for the district." Id. § 286.042(b)(1). In an at-large district, "the number of directors equal to a majority of the directors who receive the highest number of votes at the initial election serve for a term of two years; and ... the remaining directors serve for a term of one year." Id. § 286.042(b)(2)-(3). Thereafter, directors serve two-year terms, so that the district holds an election each year to select the appropriate number of successor directors for a two-year term. Id. § 286.042(e).

You state that at the May 2014 election of the initial permanent board, seven persons received the highest votes out of a field of eighteen candidates. Request Letter at 1. Two of the seven received the same number of votes, however, tying for the fourth-highest number of votes. Id. Because seven candidates for seven at-large positions received more votes than the remaining candidates, the seven have been elected to office. See TEX. HEALTH & SAFETY CODE ANN. § 286.042(b)(1) (West 2010). Your question is not about who has been elected to office, but about the directors' terms of office. You ask whether the directors who received the same number of votes are part of the "majority of the directors who receive the highest number of votes" and therefore both serve a two-year term under section 286.042(b)(2) of the Health and Safety Code, or whether the District must hold a tie-breaking election under section 2.002 of the Election Code. Id.; Request Letter at 1-2; see also TEX. ELEC. CODE ANN. § 2.002 (West 2010).

We first consider whether section 2.002 of the Election Code authorizes a second election in the present circumstances. Subsection 2.002(a) of the Election Code authorizes a second election only when, "in an election requiring a plurality vote, ... two or more candidates for the same office tie for the number of votes required to be elected." TEX. ELEC. CODE ANN. § 2.002(a) (West 2010) (emphasis added). Even if the election at issue required a plurality vote, that section authorizes a second election only to fill an office, not merely to establish whether directors who have been elected will serve a one-year or a two-year term. Here, seven candidates received the votes required to be elected to the seven at-large director positions, and therefore, each has been elected to an office. See TEX. HEALTH & SAFETY CODE ANN. § 286.042(b)(1) (West 2010). No directors tied for the same office. Section 2.002 does not require or authorize a second election when there is no office to fill because the appropriate number of candidates have been elected to the same number of at-large positions. See Beeler v. Loock, 135 S.W.2d 644, 647 (Tex. Civ. App.-Galveston 1939, writ dism'd) (stating that a predecessor statute was "intended to apply in cases where no one was actually elected," and upholding the election of seven candidates to fill seven positions even though two or more may have received an equal number of votes); see also Countz v. Mitchell, 38 S.W.2d 770, 774 (Tex. 1931) (holding that the right to conduct an election must be authorized by a statute or the constitution).

Section 286.042 of the Health and Safety Code does not prescribe how to determine the terms of office of members elected to a governing body when two received the same number of votes in an at-large election. See TEX. HEALTH & SAFETY CODE ANN. § 286.042 (West 2010). Subsection (b) does not explain what constitutes "a majority of the directors who receive the highest number of votes at the initial election." Id. § 286.042(b)(2)-(3).

The Legislature may have anticipated that the statutory mechanism it created in section 286.042(b) would result in annual elections of roughly one-half of a board elected at large. Subsection (c), applicable to the districts that elect directors by place, and subsection (d), applicable to districts that elect directors by precinct and at large, both provide for elections of approximately half of the members of the board each year. Id. § 286.042(c)-(d). But while annual elections for approximately half of the board in at-large districts may have been the Legislature's intended goal, the language it chose does not produce that result in all cases. Specifically, section 286.042(b) does not contemplate the possibility that two of the directors may receive the same number of votes under the unique circumstances presented here. [2] Even if it appears that there may have been an inadvertent omission in a statute, courts will construe a clear statute as written unless it produces absurd results. Tex. Lottery Comm'n v. First State Bank of DeQueen, 325 S.W.3d 628, 637-38 (Tex. 2010). A court could conclude, therefore, that two directors of a seven member board who both receive the fourth-highest total number of votes are included in the "majority of the directors who receive the highest number of votes" and that both serve a two-year term under section 286.042(b)(2). TEX. HEALTH & SAFETY CODE ANN. § 286.042(b)(2) (West 2010). [3]

SUMMARY

When a hospital district created under chapter 286 of the Health and Safety Code elects its initial permanent board of directors in an at-large election, the majority of the directors who receive the highest number of votes serve two-year terms. A court could conclude that when two directors of a seven member board both receive the fourth-highest total number of votes, they both are included in the majority who serve two-year terms.

Very truly yours,

KEN PAXTON
Attorney General of Texas

CHARLES E. ROY
First Assistant Attorney General

BRANTLEY STARR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Andrew Lucas, Somervell Cnty. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. (Aug. 13, 2014), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] You note that the petition calling for the creation of the District specifies that four directors will serve a two-year term and three will serve a one-year term. Request Letter at 1, Exhibit A (providing that "four (4) directors who receive the most votes at the initial election of directors will serve for two years[, and the] remaining three (3) directors will serve for one (1) year") (on file with the Op. Comm.). Like section 286.042 of the Health and Safety Code, the petition does not address terms of office when there are not four directors elected who received more votes than the remaining three. Thus, the petition is not contrary to the statutory election provisions.

[3] You state that you understand "that the district's board of directors is ready to cast lots" to determine who will serve a two-year term and who will serve a one-year term. Id. at 2. The Legislature has recognized casting lots as a method for resolving some election issues, although that method is not specifically required here. See TEX. SPEC. DIST. CODE ANN. § 7201.052(i) (West 2014) (requiring the directors of the Agua Special Utility District to cast lots to determine terms of office). We are not aware of any statute that would preclude the directors of the District who received the same number of votes from agreeing that one will serve a one-year term as determined by casting lots.