Untitled Texas Attorney General Opinion ( 1971 )

Hon. Bevington Reed Opinion No. M-851
Commissioner, Coordinating Board
Texas College and University System Re: Can the Houston In-
P. 0. Box 12788, Capitol Station dependent School District
Austin, Texas 78711 establish a junior college
district under provisions
of Section 51.011 of the
Dear Dr. Reed: Texas Education Code?
You have requested the opinion of this office concern-
ing whether the Houston Independent School District may utilize
the provisions of Section 51.011 of the Texas Education Code to
organize a junior college district coterminous with the bound-
aries of the Houston Independent School District or must the
organization and creation of such a junior college district be
pursuant to the provisions of Article 2815h-2a, Vernon’s, Civil
Statutes.
Both Section 51.011 of the Texas Education Code and
Article 281Sh-2a were enacted by the 61st Legislature in 1969.
Section 5 of House Bill 534, Acts of 61st Legislature, 1969,
Regular Session, Chapter 889, the Texas Education Code, pro-
vides that:
“If any act,passed at the same session of
the legislature conflicts with any provision of
the Texas Education Code, the.act prevails.”
(Emphasis added.)
This office has previously-held that’ ininstances where a pro-
vision of the Texas Education Code conflicts with another statute
passed at the same session of the Legislature which enacted the
Code that the provisions of the statute control over the pro-
visions of the Texas Education Code. Attorney General’s Opinion
No. M-649 (1970). In view of the foregoing, it becomes necessary
to ascertain whether Section 51.011 of the Texas Education Code
and Article 2815h-2a are in conflict.
Section 51.011 of the Texas Educ,ation code and the en-
suing sections of Subchapter B thereof, as well as Article 2815h-2a,
deal with the creation of junior college districts.
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‘Hon. Bevington Reed, page 2 (M-851)
Section 51.011 authorizes the establishment of an
independent school district junior college in instances where
the assessed property valuation of the district is not less than
$12,000,000 and the average daily attendance in the high schools
within the district is not less than 400 students, or where
the assessed property valuation of the district is $20,000,000
or more and the average daily attendance in the high schools
within the district is less than 400 students but not less than
300 students.
The petition for an election to create a junior college
district pursuant to Section 51.011 is provided for in Section
51.012, and such petition must be signed by not less than five
percent (5%) of the qualified taxpaying electors of the proposed
district. Pursuant to the provisions of Section 51.016 and
Section 51.017 a junior college district established pursuant
to Section 51.011 may be governed by either the board of trustees
of the independent school district or a separate board of trustees
for the junior college district. Section 51.012 authorizes the
governing board of a junior colelge district created pursuant to
Section 51.011 to issue bonds and levy ad valorem taxes. The
annual bond tax rate is limited to fifty cents ($.SO) on the
$100 valuation of taxable property in the district, and the annual
bond tax together with the annual maintenance tax cannot exceed
the aggregate of one dollar ($1) on the $100 valuation of tax-
able property in the district.
Article 2815h-2a authorizes the creation of junior
college districts by school districts having an assessed valu-
ation of more than $3,868,000,000 and located in a county having
a population of 1,200,OOO or more. Section 2 of Article 2815h-2a
provides for the calling of an election to create a junior col-
lege district upon the petition of at least ten percent (10%) of
the qualified taxpaying voters of the district. If authorized
by the voters a junior college district created pursuant to
Article 2815h-2a may issue bonds and levy a tax not to exceed
ten cents ($.lO) per $100 of the assessed valuation of all taxable
property situated within the district. Section 5 of Article
2815h-2a requires the election of a board of trustees to govern
the junior college district at the time of the election to decide
the issue of creating the junior college district.
The foregoing observation concerning the provisions
of Article 2815h-2a and Subchapter B of the Texas Education
Code disclose that there exist numerous differences between the
two procedures for creating junior college districts -- the
percentage of voters to be obtained on the petition calling
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Hon. Bevington Reed, page 3 (M-851)
for an election on the issue of creating the junior college
district, the tax vote, the manner of providing for the govern-
ing board of the junior college district, and the basic require-
ments that a district must have to avail itself of either Section
51.011 of the Texas Education Code or Article 2815h-2a.
As Section 51.011 of the Texas Education Code and
Article 2815h-2a do differ in their provisions, this then raises
the question of whether the Houston Independent School District
may comply with the provisions of Subchapter B of the Texas
Education Code or must it comply and be governed by the pro-
visions of Article 2815h-2a in connection with the creation of a
junior college district. Pursuant to our holding in Attorney
General's Opinion M-649 (1970), if these provisions are in con-
flict then the provisions of Article 2815h-2a will control.
Section 1 of Article 2815h-2a provides, in part,
that: .
"A~school district . . . ma establish a
junior college district as prove
-3 ed by the Act<"
(Emphasis added.)
Subdivision (a) of Section 51.011 of the Texas Edu-
cation Code provides that:
"An independent school district junior
college w be established in either of the
following types of units:" (Emphasis added.)
By the information contained in your request for our
opinion, it would appear that the Houston Independent School
District meets the basic requirements to avail itself of either
the provisions of Article 2815h-2a or the provisions of Section
51.011 of'the Texas Education Code in connection with the
creation of a junior college district. However, your request
further indicates that the Houston Independent School District
has elected to proceed pursuant to the provisions of Subchapter
B of the Texas Education Code rather than Article 2815h-2a.
Where statutes relating to the same subject matter
are enacted at the same session of the Legislature, it is pre-
sumed that they were enacted by the same policy and imbued
with the same intent, and in ascertaining legislative intent
they will be read together as though they were embraced in one
act or were supplemental to each other since they are in pari
materia. Garrett v. Mercantile National Bank at Dallas, 140
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Hon. Bevington Reed, page 4 (M-851)
Tex. 394, 168 S.W.2d 636 (1943). . . The courts will generally .
interpret the language usea in a statute in a manner to make
all relevant laws harmonious if possible. State v. Standard
Oil Co., 130 Tex. 313, 107 S.W.Zd 550 (1937); Griffin v. City
mahachie, 276 S.W. 201 (Comm.App. 1925). Statutes enacted
by the same Legislature relating to the same subject should be
interpreted, if possible, so as to harmonize their provisions.
Slater v. Ellis County Levee Improvement District No. 9, 120
Tex. 272. 36 S.W.2d 1014 11931‘1. Statutes will not be con-
strued as conflicting if such construction can be reasonably
avoided. Mitchell v. Hancock, 196 S.W. 694 (Tex.Civ.App. 1917,
no writ).
Both Article 2815h-2a and Section 51.011 of the
Texas Education Code make use of.the word "may" in connection
with the creation of a junior college district. In the case
of Ross v. Tide Water Oil Co., 136 Tex. 66, 145 S.W.2d 1089
(1941), the Court stated:
"'May' will not be treated as a word of
command unless there is something in the con-
text or subject matter of the act to indicate
it was used in that sense. . . .ll
The courts have normally interpreted the word "may" to be oer-
missive rather than mandatory.- See Hudson Underwriters Agency
of Franklin Fire Insurance Co. v. Ablon, 203 S.W.2d 584 (Tex.
Civ.App. 1947 d' ) Kleck v. Zoning Board of Adjustment
of City of Sai ~X:%01s!i9'S.W.2d 406 (T .C' A . 1958 error
ref.); State v. Clemen;s 319 S.W.2d 450 ~~exl~ivP~pp. 1958
error ref.). As the Leeislature has made use'of the word "Aav"
in both Article 2815h-2: and Section 51.011 of the Texas Edu-'
cation Code, it would seem to indicate that the intent was to make
available alternative procedures which could be used in creat-
ing a junior college district. Had the Legislature desired that
only Article 2815h-2a or Section 51.011 of the Texas Education
Code be available, it would seem that mandatory rather than per-
missive language would have been used.
In view of the foregoing rules of statutory construction,
and in view of the use of the word "may" in both Section 51.011
of the Texas Education Code and Section 1 of Article 2815h-2a,
we are of the opinion that the provisions of Subchapter B of the
Texas Education Code and Article 2815h-2a should be given a
construction or interpretation which would harmonize them rather
than raise a conflict between them. Consequently, we are of the
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Hon. Bevington Reed, page 5 (M-851)
opinion that Section 51.011 of the Texas Education Code and
Article 2815h-2a provide for alternative means of creating or
establishing a junior college district, and the Houston In-
dependent School District has the option of selecting which
of the procedures available it will follow and by which it
will be governed in establishing such district.
SUMMARY
Section 51.011 of the Texas Education Code
and Article 2815h-2a, Vernon's Civil Statutes,
provide for alternative means of creating or
establishing a junior college district and are
not in conflict. The Houston Independent School
District has the option of selecting which of
the procedures available it will follow and by
which it will be governed in establishing such
district. A
Prepared by Pat Bailey
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Bob Lattimore
Vince Taylor
Tom Sedberry
Linward Shivers
MEADEF. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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