Untitled Texas Attorney General Opinion ( 2008 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
January 17, 2008
The Honorable Homero Ramirez Opinion No. GA-0596
Webb County Attorney
1110 Washington Street, Suite 301 Re: Operation of Texas Education Code section
Laredo, Texas 78042 11.168 prohibiting certain school district agreements
(RQ-0609-GA)
Dear Mr. Ramirez:
You ask about the operation of section 11.168 ofthe Texas Education Code, which prohibits
certain school district agreements, with respect to an agreement entered into before the effective date
of the statute.! Section 11.168, in its entirety, provides as follows:
The board of trustees of a school district may not enter into an
agreement authorizing the use of school district employees, property,
or resources for the provision of materials or labor for the design,
construction, or renovation of improvements to real property not
owned or leased by the district.
TEX. EDUC. CODE ANN. § 11.168 (Vernon 2006). Section 11.168 became effective June 18, 2005.
See Act of May 27, 2005, 79th Leg., R.S., ch. 979,2005 Tex. Gen. Laws 3286. You specifically ask
whether section 11.168
applies retrospectively to an agreement entered before the effective
date of [the statute], where the agreement calls for the use of school
district resources for improvements to real property not owned or
leased by the ... district, and where such use of ... district resources
will continue under the terms ofthe agreement after the effective date
of Section 11.168[.]
Request Letter, supra note 1, at 1. You contend that because section 11.168 does not apply
retrospectively it does not prohibit and affect the validity of an agreement entered into before June
18, 2005. See id. at 2.
lSee Letter from Honorable Homero Ramirez, Webb County Attorney, to Honorable Greg Abbott, Attorney
General ofTexas, at 1 (July 24,2007) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us)
[hereinafter Request Letter].
The Honorable Homero Ramirez - Page 2 (GA-0596)
We address here only the legal question you raise: whether section 11.168 applies
retroactively to an agreement otherwise validly entered into before its effective date. 2 When
interpreting a statute, like a court, we must "ascertain and effectuate the Legislat[ure' s] intent." In
re MC.C., 187 S.W.3d 383, 384 (Tex. 2006) (quoting Tex. Dep 't ofProtective & Regulatory Servs.
v. Mega Child Care., Inc., 145 S.W.3d 170, 176 (Tex. 2004)). The Code Construction Act provides
that "[a] statute is presumed to be prospective in its operation unless expressly made retrospective."
TEX. GOV'TCODEANN. § 311.022 (Vernon 2005). And the Supreme Court ofTexas has stated that
"[s]tatutes are only applied retroactively if the statutory language indicates that the Legislature
intended that the statute be retroactive." In re MC.C., 187 S.W.3dat 384 (citing Merch. Fast Motor
Lines, Inc. v. R.R. Comm 'n, 573 S.W.2d 502,504 (Tex. 1978), State v. Humble Oil & Ref Co., 169
S.W.2d 707, 708-09 (Tex. 1943)).
Section 11.168 does not indicate an intention by the Legislature to make the statute
retroactive. See TEX. EDUC. CODE ANN. § 11.168 (Vernon 2006). The statute does not expressly
state that it applies to agreements entered into before its adoption. See id.; see also TEX. GOV'T
CODE ANN. § 311.022 (Vernon 2005) (stating that statute is presumed prospective unless expressly
made retrospective); Subaru ofAm., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212,219 (Tex.
2002) ("A retroactive law literally means a law that acts on things which are past.") (citing
Decordova v. City ofGalveston, 4 Tex. 470, 475 (1849)). Nor does the statutory language otherwise
indicate that the Legislature intended retroactive operation. See TEX. EDUC. CODE ANN. § 11.168
(Vernon 2006); see also In re MC.C., 187 S.W.3d at 384-85 (stating that statutes are applied
retroactively only ifthe language indicates such legislative intent). The statute provides that a school
district board of trustees "may not enter into" an agreement described by the statute. TEX. EDUC.
CODE ANN. § 11.168 (Vernon 2006). It does not attempt to reach past actions or decisions of a
school board of trustees to contract with a party. Cf TEX. GOV'T CODE ANN. § 311.012 (Vernon
2005) ("Words in the present tense include the future tense.").
The only legislatively adopted language regarding the operation of the statute-"effective
immediately"-also does not support an intent that the statute apply retroactively. See Act of May
27, 2005, 79th Leg., R.S., ch. 979, § 2, 2005 Tex. Gen. Laws 3286 ("This Act takes effect
2We do not understand you to ask about the underlying validity ofthe type of agreement at issue, and thus, we
do not address that question. See Request Letter, supra note 1, at 1-2. A school district possesses only the
powers-including the power to contract with reference to a particular purpose-expressly conferred on it by law or
necessarily implied from the powers so conferred. Harlingen Indep. Sch. Dist. v. Page, 48 S.W.2d 983, 986 (Tex.
Comm'n App. 1932, judgm't adopted); see also Tex. Roofing Co. v. Whiteside, 385 S.W.2d 699, 701 (Tex. Civ.
App.-Amarillo 1964, writ ref'd n.r.e.). An agreement's validity necessarily depends on whether the agreement is
authorized by law and whether its terms conform to the applicable law. Cf Harlingen Indep. Sch. Dist., 48 S.W.2d at
986 (stating that court must look at pertinent statutes to determine validity ofschool district construction contract payable
from bond proceeds). You do not reference or discuss the statutes authorizing the type of agreement you ask about, its
terms, or any other facts about the agreement. See Request Letter, supra note 1, at 1-2; see also Tex. Att'y Gen. Ope
Nos. GA-O 176 (2004) at 2 (stating that attorney general opinions may "address a public entity's authority to agree to a
particular contract term, if the question can be answered as a matter of law," but they do not generally construe '
contracts); JM-1218 (1990) at 1-2 (in absence of factual information, assuming that contract for the purchase of goods
was validly entered into and delivery of the goods made before the effective date of statute in analyzing retroactive
application of statute).
The Honorable Homero Ramirez - Page 3 (GA-0596)
immediately if it receives a vote of two-thirds of all the members ...."); cf In re MC.C., 187
S.W.3d at 385 ("The effective date language merely states the amending date and then defines the
types of support to which [the amendment] applies without any suggestion of retroactive
application."). That language, in fact, leads to the conclusion that the legislative intent was that the
statutory prohibition apply prospectively. See Houston Indep. Sch. Dist. v. Houston Chronicle
Publ'g Co., 798 S.W.2d 580, 587 (Tex. App.-Houston [1st Dist.] 1990, writ denied). ("The
legislature's sole enacted pronouncement on the effective date ofthe bill is the emergency 'effective
immediately' clause; if the legislature believed the provision could be applied retroactively, there
would be no reason to make it effective immediately.").
In answer to your question, we conclude that section 11.168 does not apply retroactively to
an agreement entered into before the effective date ofthe statute. You do not ask about a particular
agreement, and we do not determine whether section 11.168 would apply to a particular agreement
that may be described as being entered into before the statute's effective date. See, e.g., Lamar Life
Ins. Co. v. Jordan, 163 S.W.2d 215, 217 (Tex. Civ. App.-Waco 1942, writ refd w.o.m.)
(distinguishing between extension of rights vested at inception of a contract and a novation of such
a contract); Greenbelt Elec. Coop., Inc. v. Johnson, 608 S.W.2d 320, 325 (Tex. Civ. App.-Amarillo
1980, no writ) (recognizing that under Texas law a contract modified by mutual consent is a new
contract); see also Tex. Att'y Gen. Ope No. GA-0302 (2005) at 2 (stating that "this office does not
review or construe contracts").
Because we conclude that section 11.168 does not apply retroactively, we need not address
your contention that retroactive application of the statute would impair a school district's vested
interest under an agreement entered into before the effective date ofthe statute. See Request Letter,
supra note 1, at 2; see also Subaru ofAm., Inc., 84 S.W.3d at 219 (stating that only retroactive
statutes that impair vested rights are constitutionally prohibited); In re MC.C., 187 S.W.3d at 385
(stating that because the court concluded that statutory amendment lowering interest rate on child
support arrearages applied prospectively, "we do not reach the issue of whether the beneficiary has
a vested right to the interest"); Price Pfister, Inc. v. Moore & Kimmey, Inc., 48 S.W.3d 341,353-54
(Tex. App.-Houston [14th Dist.] 2001, pet. denied) (considering whether retroactive application
of statute altered company's vested rights under a contract to pay commission).
The Honorable Homero Ramirez - Page 4 (GA-0596)
SUMMARY
The general rule in Texas is that statutes apply prospectively
unless the statutory language indicates that the Legislature intended
the statute to apply retroactively. Texas Education Code section
11.168 prohibits a school district board oftrustees from entering into
an agreement authorizing the use of school district resources for
improvement of real property not owned or leased by the school
district. Because the statute does not indicate that the Legislature
intended the statute to apply retroactively, it does not apply to such an
agreement entered into before the effective date of the statute.
Very truly yours,
KENT C. SULLIVAN
First Assistant Attorney General
ANDREW WEBER
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Sheela Rai
Assistant Attorney General, Opinion Committee