Can a Texas hospital district board create a vice-chair position its enabling law doesn't mention?

Plain-English summary

A resignation on the Maverick County Hospital District board kicked off an internal fight, and a state representative brought it to the AG on the district's behalf. The board's chair had stepped down, and the members split over two things: whether the board's vice chair should automatically slide into the chair's seat, and whether the vice-chair position was even valid in the first place. The doubt came from the district's enabling law, chapter 1118 of the Special District Local Laws Code, which lists a president, secretary, and treasurer but never mentions a vice chair, even though the board's bylaws create one.

The AG upheld the vice-chair position. A hospital district like this one, created under article IX, section 9 of the Texas Constitution, can exercise only the powers the Legislature expressly gives it plus those that exist by clear implication. Chapter 1118 requires the board to elect a president, secretary, and treasurer (the word "shall" makes that mandatory), but staying silent about a vice chair only means the district does not have to have one. It is not a ban. Separately, section 1118.105 lets the district adopt rules for its efficient operation, and a vice chair who can keep the board running when the chair is absent serves that goal and the district's core mission of providing care for needy residents. A bylaw creating the seat differs from the statute's officer list but does not conflict with it, so the AG concluded a court would likely find the position valid.

The succession questions got a different answer: none. Because chapter 1118 does not address a vice chair at all, what the vice chair does after a chair resigns is governed entirely by the district's own bylaws, not by any statute or the constitution. The AG analogized a special district's bylaws to a city charter, which this office generally declines to interpret out of deference to the officials who run the entity. So the AG left it to the board to decide whether and how long the vice chair acts as chair.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG 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. Chapter 1118 of the Special District Local Laws Code and the district's bylaws may have changed since 2016, so confirm the current law and governance documents before relying on these specifics.

What the opinion meant for those who asked

The Maverick County Hospital District board (as the opinion described it): The opinion concluded a court would likely find the vice-chair position valid as an exercise of the district's implied power to adopt rules for efficient operation, while leaving the role of the vice chair after a chair's resignation to the board itself.

Special district boards generally (as the opinion described it): The opinion described an enabling statute's silence on an office as permission, not prohibition, and recognized a special district's authority to adopt governance rules consistent with applicable law.

Anyone asking about succession (as the opinion described it): The opinion expressly declined to decide whether the vice chair automatically becomes acting chair or for how long, treating those as bylaw questions for the board, analogous to a city's authority to construe its own charter.

Common questions

Can a hospital district have a vice chair if the statute only lists a president, secretary, and treasurer?
The AG concluded a court would likely uphold the vice-chair position, because the statute's silence is not a prohibition and creating the seat by bylaw falls within the district's implied power to adopt rules for efficient operation.

Does the vice chair automatically become chair when the chair resigns?
The AG did not decide this. It said the question turns on the district's bylaws, not on statute or the constitution, and is for the board to resolve.

Why wouldn't the AG answer the succession question?
The AG explained that a special district's bylaws are like a city charter, which this office generally declines to construe out of deference to the officials who govern the entity.

What powers does a hospital district have?
The AG noted such a district may exercise only the powers expressly delegated by the Legislature plus those that exist by clear and unquestioned implication as indispensable to its purpose.

Does adding a vice chair conflict with the required officer list?
The AG concluded it does not, because a rule providing for a vice chair differs from, but does not irreconcilably conflict with, the statute that requires a president, secretary, and treasurer.

Background and statutory framework

The Maverick County Hospital District was created under article IX, section 9 of the Texas Constitution and codified at chapter 1118 of the Special District Local Laws Code (Tex. Const. art. IX, § 9). Such a district may exercise only expressly delegated powers and those that exist by clear and unquestioned implication (Tri-City Fresh Water Supply Dist. No. 2 v. Mann, 142 S.W.2d 945; Jackson Cty. Hosp. Dist. v. Jackson Cty. Citizens for Continued Hosp. Care, 669 S.W.2d 147). Chapter 1118 requires the board to elect a president, secretary, and treasurer, using the mandatory "shall" (Tex. Spec. Dist. Code §§ 1118.051, 1118.055; Tex. Gov't Code § 311.016), but its silence on a vice chair is not a prohibition.

Section 1118.105 authorizes the district to adopt rules for efficient operation, and the district's bylaws (which adopt Robert's Rules of Order) provide for a vice chair (Tex. Spec. Dist. Code §§ 1118.101, 1118.105). The AG concluded that providing for a vice chair fits within the district's implied powers and does not irreconcilably conflict with the required officer list (State v. Jackson, 370 S.W.2d 797). Because chapter 1118 does not address the vice chair's role on a chair's resignation, the AG treated the succession questions as bylaw matters for the board and declined to answer them.

Citations

Constitutional and statutory provisions:

• Tex. Const. art. IX, § 9 (authority for hospital districts; care for needy inhabitants)
• Tex. Spec. Dist. Code § 1118.051 (board membership and terms)
• Tex. Spec. Dist. Code § 1118.055 (board shall elect a president, secretary, and treasurer)
• Tex. Spec. Dist. Code § 1118.101 (district responsibility to provide hospital and medical care)
• Tex. Spec. Dist. Code § 1118.105 (authority to adopt rules for efficient operation)
• Tex. Gov't Code § 311.016 ("shall" imposes a duty)

Cases:

• Tri-City Fresh Water Supply Dist. No. 2 v. Mann, 142 S.W.2d 945, 946 (Tex. 1940)
• Jackson Cty. Hosp. Dist. v. Jackson Cty. Citizens for Continued Hosp. Care, 669 S.W.2d 147, 154 (Tex. App.-Corpus Christi 1984, no writ)
• State v. Jackson, 370 S.W.2d 797, 800 (Tex. Civ. App.-Houston [1st Dist.] 1963), aff'd, 376 S.W.2d 341 (Tex. 1964)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0062
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2016/kp0062.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 3, 2016

The Honorable Larry Phillips Opinion No. KP-0062
Chair, Committee on Homeland Security
and Public Safety Re: Questions relating to the position of
Texas House of Representatives Vice Chairman on the Maverick County
Post Office Box 2910 Hospital District Board of Directors
Austin, Texas 78768-2910 (RQ-0044-KP)

Dear Representative Phillips:

On behalf of the Maverick County Hospital District ("District") you ask three questions concerning the District's governance. [1] You first ask our opinion on the validity of the position of vice chair. Request Letter at 2. Assuming its validity, you then ask whether the vice chair automatically becomes the acting chair upon the chair's resignation. Id. Finally, you ask whether the vice chair continues as the acting chair until the District's board of directors appoints a new chair or until the expiration of the resigned chair's term. Id. at 3.

As background, you tell us that the chair of the District resigned from the board of directors ("board"). See id. at 2. You state that at a subsequent board meeting, "a dispute arose among the Board members as to whether the Vice Chairperson should automatically move into the Chairperson position." Id. You inform us that "[a] director also disputed whether the Vice Chairperson position was valid since the District's enabling legislation, Chapter 1118 of the Texas Special District Code, did not specifically provide for the position of Vice Chairperson, even though the Bylaws authorize such a position." Id. With this background, we consider your questions.

The District is a hospital district created under the authority of article IX, section 9 of the Texas Constitution by special law codified at Special District Local Laws Code chapter 1118. See TEX. SPEC. DIST. CODE §§ 1118.001-.253, .002 (noting creation under article IX, section 9 and citing Act of Apr. 29, 1965, 59th Leg., R.S., ch. 172, § 1, 1965 Tex. Gen. Laws 360, 360); see also TEX. CONST. art. IX, § 9. Such a district may exercise only those powers that are "expressly delegated to it by the legislature, or which exist by clear and unquestioned implication." Tri-City Fresh Water Supply Dist. No. 2 v. Mann, 142 S.W.2d 945, 946 (Tex. 1940); see also Jackson Cty. Hosp. Dist. v. Jackson Cty. Citizens for Continued Hosp. Care, 669 S.W.2d 147, 154 (Tex. App.-Corpus Christi 1984, no writ). Implied powers are those that are "indispensable to .... the accomplishment of the purposes" for which the special district is created. Tri-City Fresh Water Supply Dist. No. 2, 142 S.W.2d at 947.

Article IX, section 9 generally provides that the purpose of a hospital district is to provide "medical and hospital care for its needy inhabitants." TEX. CONST. art. IX, § 9; see also TEX. SPEC. DIST. CODE § 1118.101(a)-(b) (providing that "district has the responsibility of undertaking [and shall undertake] any measure, consistent with Section 9, Article IX, ... and this chapter, that the board determines is necessary to provide hospital and medical care to the district's needy residents"). Yet, article IX, section 9 is silent regarding the governance of the hospital districts created thereunder. See TEX. CONST. art. IX, § 9. Relevant to the District's governance, chapter 1118 of the Special District Local Laws Code provides that the District's board, "elected by district voters," shall consist of five members and that the "board shall elect from among its members a president, a secretary, and a treasurer." TEX. SPEC. DIST. CODE §§ 1118.051(a), .055. Because of the use of the word "shall," section 1118.055 imposes a mandatory requirement that the District elect a president, secretary, and treasurer. See id. § 1118.055; see also TEX. GOV'T CODE § 311.016 ("'Shall' imposes a duty."). The silence of section 1118.055 regarding the office of vice chair means only that the District is not required to elect a vice chair: It does not serve as a prohibition against the election of a vice chair.

Section 1118.105 authorizes the District to adopt rules "for the efficient operation of the district." TEX. SPEC. DIST. CODE § 1118.105(a); see also id. § 1118.101. This office has said that special districts and political subdivisions may adopt governance rules under such authority provided that the rules are consistent with other applicable constitutional and statutory provisions. See Tex. Att'y Gen. Op. Nos. GA-0412 (2006) at 2 (stating that hospital district may adopt Robert's Rules of Order to govern its meetings), DM-228 (1993) at 3 (recognizing that a commissioners court may adopt reasonable rules that are consistent with relevant law to govern its meetings). You tell us that pursuant to this authority the District has adopted bylaws to provide for the governance of the District, which bylaws provide that Robert's Rules of Order shall govern parliamentary procedure. See Request Letter at 5-6. The bylaws provide for the election of a vice chair. See id. at 4; see also id., Appendix D § 5.1 (Bylaws, Board of Directors, Maverick Cty. Hosp. Dist.) (on file with the Op. Comm.). To the extent the position of vice chair promotes efficient operation of the District by allowing for the continued governance of the board in the absence of the chair and thus serves the District's purpose of providing medical and hospital care for the needy inhabitants, providing for the office of vice chair is within the scope of the District's implied powers. Moreover, a rule adopted pursuant to section 1118.105 to provide for the election of a vice chair differs from but does not conflict with section 1118.055, which neither requires nor prohibits the position of vice chair. See Tex. Att'y Gen. Op. No. GA-1079 (2014) at 3 (recognizing that an irreconcilable conflict involves a direct conflict such that "it is impossible to comply with both provisions at the same time") (citing State v. Jackson, 370 S.W.2d 797, 800 (Tex. Civ. App.-Houston [1st Dist.] 1963), aff'd, 376 S.W.2d 341 (Tex. 1964)); see also Tex. Att'y Gen. Op. No. GA-0369 (2005) at 4 ("Mere difference is insufficient to constitute an irreconcilable conflict."). Accordingly, a court would likely conclude that the position of vice chair on the District's board is valid.

Your remaining questions concern the role and duties of the vice chair upon the resignation of the chair. Request Letter at 2-3. Chapter 1118 provides that directors serve staggered four-year terms. TEX. SPEC. DIST. CODE § 1118.051(b). It also provides that the board shall elect its officers at the first meeting after each director's election. Id. § 1118.055. Thus, if some directors are elected by District voters in an election every two years, then the board shall elect its officers as frequently. But as chapter 1118 does not provide for the position of vice chair, it does not expressly outline the role of the vice chair after the resignation of the chair. Thus, your remaining questions involve only the District's governance documents and are not questions determined purely by reference to Texas statutes or the constitution. The bylaws of a special district are analogous to the charter of a municipality in that they are the governing documents for the different entities. And this office typically does not construe municipal charters out of deference to the city official's authority to construe their own charter. Tex. Att'y Gen. Op. No. JC-0035 (1999) at 3. Accordingly, we do not address these questions and instead leave it to the District's board to determine the role and duties of the vice chair upon the resignation of the chair.

SUMMARY

A court would likely conclude that the position of vice chair on the board of the Maverick County Hospital District is valid.

Absent guidance from chapter 1118 of the Special District Local Laws Code, questions regarding the role and duties of the vice chair upon the resignation of the chair are for the District's board to resolve.

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

CHARLOTTE M. HARPER
Assistant Attorney General, Opinion Committee

[1] See Request Letter from Honorable Larry Phillips, Chair, House Comm. on Homeland Sec. & Pub. Safety, to Honorable Ken Paxton, Tex. Att'y Gen. at 2-3 (Aug. 14, 2015), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").