Untitled Texas Attorney General Opinion ( 1991 )

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April 25, 1991
Honorable Alvin Roy Granoff Opinion No. DM-20
Chairman
Committee on State, Federal and Re: Authority of the Coordinating
International Relations Board to mandate training require-
Texas House of Representatives ments for locally elected community
P. 0. Box 2910 and junior college trustees, and related
Austin, Texas 78768-2910 questions (RQ-2171)
Dear Representative Granoffz
You ask two questions in regard to junior college’ districts. Your first
question is whether the Texas Higher Education Coordinating Board’ may establish
training requirements for trustees of junior college districts.
The authority of the Coordinating Board in regard to junior colleges is set
out in section 130.001 of the Education Code, which provides that the Coordinating
Board “shall exercise general control of the public junior colleges of Texas.” Educ.
Code $130.001(a). Subsection (b)(3) provides that the Coordinating Board shall
“adopt standards for the operation of public junior colleges and prescribe the rules
and regulations for such colleges.” Section 130.002, however, provides as follows:
All authority not vested by this chapter or by other laws of
the state in the coordinating board or in the Central Education
Agency is reserved and retained locally in each of the respective
public junior college districts or in the governing boards of such
junior colleges as provided in the laws applicable.
‘The term “junior college’ will be used to designate entities known either as junior colleges or
community colleges. See Educ. Code 0 130.005 (junior colleges may be redesignated as community
colleges).
*Statutory references to the Coordinating Board, Texas College and University System, arc
references to the Texas Higher Education Coordinating Board. Educ. Code 5 61.0X
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Honorable Alvin Roy Granoff - Page 2 (D&l-20)
The statement in section 130.001 that the Coordinating Board has “general
control” over junior colleges suggests broader authority on the part of the
Coordinating Board than does the statement in section 130.002 that all authority not
granted to the Coordinating Board or the Central Education Agency is reserved to
the junior college districts. See generally Attorney General Opinious M-199 (1968);
WW-868 (1960). Regardless of how broad the authority of the Coordinating Board
is in regard to the operation of junior college districts, however, we do not think that
authority to operate the district includes authority to set educational requirements
for trustees.
The qualifications for trustees of junior college districts to seek and hold
office are set by statute. Educ. Code 3 130.082; Elec. Code Q 141.001. To interpret
the Coordinating Board’s authority over junior college districts to include authority
to establish educational requirements for individual trustees would allow a state
agency to add to those statutory qualifications by rule. The cases and opinions
discussed below support the proposition that the qualifications of an elected official
to seek or hold office cannot be increased or decreased in that manner.
In Dick-son v. Strickland, 265 S.W. 1012 (Tex. 1924), the court considered
whether the legislature could place a local residency requirement on a candidate for
the office of governor. The court held that when the constitution sets out the
qualifications for an office, it is not within legislature’s~power to change or add to
those qualifications. Similarly, in Brown v. Meek, 96 S.W.2d 839, 842 (Tex. Civ.
App.--San Antonio 1936, writ dism’d), the court held that a commissioners court
could not add to or take away from the statutory qualifications for the office of
constable. Also, in 1940 this office issued an opinion in response tc the question of
whether a blind person could take the oath.of office and act as Navarro County
Treasurer. The opinion stated:
We have thoroughly examined the Texas statutes and fail to
find any article referring to the qualifications of a county
treasurer. The county treasurer is elected by the popular vote of
the taxpaying citizens of the county; and in the absence of
specified qualifications for such officer, anyone who receives a
majority of the popular vote is elected and is eligible to take the
oath of office and serve as county treasurer.
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Honorable Alvin Roy Granoff - Page 3 (DM-20 1
Such being the case, the disability of blindness does not in
any way interfere with the person elected from taking the oath
of office and acting as county treasurer.
Attorney General Opinion O-2910 (1940); see also Attorney General Opinions H-
1120 (1978) (holding that legislature may impose education requirement for county
tax assessor-collector where the constitution imposes no qualification); H-969
(1977) (holding that county, as opposed to home-rule city, could~not require officials
to file financial disclosure statements); M-728 (1970) (nepotism law does not
render Texas Supreme Court appointee ineligible because appointee’s son is
member of legislature; legislature may not add to or alter eligibility qualifications
prescribed by constitution). It follows from those cases and opinions that an
individual who satisfies the statutory requirements and who is elected to the office
of trustee may serve. Thus, absent specific statutory authority, the Coordinating
Board may not, by rule, condition service as a trustee on the satisfaction of an
educational requirement. See Educ. Code 3 23.33 (State Board of Education may
set training requirements for school board members);” Gov’t Code 3 27.005 (justices
of the peace may be removed for failure to complete continuing education
requirements).
Your second question is whether a junior college district is authorized to
request an attorney general opinion under section 402.042(b)(6) of the Government
Code, which includes among the list of persons authorized to request opinions “a
regent or trustee of a state educational institution.” We conclude that junior college
districts are not state educational institutions for purposes of section 402.042(b)(6)!
3Seetion l30.084 of the Education Code provides that the board of trustees of a junior college
district shag be governed by the general law governing the establishment, management, and control of
independent school districts “insofar as the general law is applicable.” Because the State Board of
Education dots not implement policy for public junior colleges, as it does for the public school system.
see Bduc Code g 11.24(a), we do not think that section 23.33 of the Education Code could be
considered applicable to public college districts. But see Educ. Code g 11.24(b) (role of State Board of
Education in regard to technical-vocational programs, including those at public junior colleges).
“You also suggest that the legislature must have used the term ‘trustees” in referencc to junior
college districts. In response to that suggestion, WCnote that *trustees of State educational institutions”
were fust authorized to request attorney general opinions in 1913. Ads 19W, 33d Leg., eh. 26, at 48.
At that time there were no statutes creating or authorizing creation of junior college districts. See Acts
1929,41st Leg., eh. 290, at 648. Therefore, it is clear that the legislature did not USCthe term “trustees”
with junior college districts in mind.
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Honorable Alvin Roy Granoff - Page 4 (DM-20 1
The substance of section 402.042(b)(6) was adopted in 1913. Acts 1913,33d
Leg., ch. 26, at 48. As adopted in 1913, the provision regarding attorney general
opinions stated in part:
I,I]n addition to the duties now or that may hereafter, be
imposed upon the Attorney General by law, he shall, at the
request of the Governor or the heads of the departments of the
State Government, including the heads and boards of penal and
eleemosynary institution, and all other State boards, regents,
trustees of the State educational institutions, and committees of
either branch of the Legislature, give them advice in writing
upon any question touching the public interest, or concerning
their official duties.
Acts 1913, 33d Leg., ch. 26, at 48. Although the wording of section 402.042 of the
Government Code is noticeably different from the language of the 1913 statute, that
difference stems from the 1987 enactment of title 4 of the Government Code, which
was a nonsubstantive revision. Acts 1987, 70th Leg., ch. 147, 0 7; see also V.T.C.S.
art. 4399 (1925) (making minor and nonsubstantive changes to article 4399,
V.T.C.S., the statute regarding attorney general opinions). If there is a conflict
between a former statute and a revision that was intended to be nonsubstantive, the
former statute will control. Johnson v. Cify of Fan Worrh, 774 S.W.2d 653 (Tex.
1989). Therefore, it is appropriate to look to the language of the 1913 enactment in
defining “state educational institution” within the present statute. Although the
scope of the word “state” varies according to context, case law supports the
conclusion that the language of the 1913 enactment refers to departments whose
jurisdiction is statewide. Therefore, the phrase “state educational institution” in the
current statute regarding attorney general opinions does not include entities that
serve only a limited geographical area of the state. See gene&y Attorney General
Opinion JM-1005 (1989) (entity may be “state” body for some purposes and not
others).
In San Antonio Indep. Sclrool Dist. v. State, 173 S.W. 525 (Tex. Civ. App.--San
Antonio 1915, writ ref d), the issue was the scope of article XVI, section 30% of the
Texas Constitution. As part of its analysis, the court considered the meaning of the
phrase “the board of regents of the state university and boards of trustees or
managers of the educational, eleemosynary and penal institutions of the state.” In
regard to that language, the court stated, ‘The boards enumerated in the
Constitution are clearly all state boards, or boards of the state.” Id. at 526. Accord
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Lower Colorado River Auth v. McGraw, 83 S.W.2d 629, 634 (Tex. 1935). The
opinion then determined that independent school districts were not “state boards”
for purposes of article XVI, section 30a San Ayonio Indep. School Dirt, supm, at
538. In reaching that conclusion, the court noted that the school board “is
responsible to the electors in such school district alone.” Id; c$ Lower Colomdo
River Auth. v. McGmw, supm, at 636 (Lower Colorado River Authority, which has
“many duties that are coextensive with the limits of the state” is a state. board for
purposes of article XVI, I&?
30a).S
The language in the statute regarding attorney general opinions is quite
similar to the language of article XVI, section 30a, and, we think, just as clearly
excludes bodies such as school districts that serve only a portion of the state. See
genemlly Love v. Ciryof Dallas, 40 S.W.2d 20,26-27 (Tex. 1931) (school districts are
“state agencies” inasmuch as they administer the state system of public schools and
derive their powers by delegation from the state, but they are local entities inasmuch
as they are for the benefit of the public within their boundaries); Ex parte Preston,
161 S.W. 115 (Tex. Crim. App. 1913) (designation “state officer” can be limited to
officer whose jurisdiction is coextensive with the state or it can include any officer
who receives his authority under the laws of the state, even if the officer’s
jurisdiction is limited to a particular area of the state); Orndoflv. State, 108 S.W.2d
206 (Tex. Civ. App.-El Paso 1937, writ refd) (county commissioners are officers
“under the Government of the State” even if they may not be officers “of the
Government of the State”); Attorney General Opinion M-1177 (1972) (school
employees are not “state” employees for purposes of article XVI, section 40, of the
Texas Constitution); see ako Tex. Const. art. IV, 3 22 (directing attorney general to
give legal advice to “Governor and other executive officers”upon request).
Junior colleges, like independent school districts, serve only a limited area of
the state. Section 130.0011 of the Education Code, which was added in 1987,
sAuthoritks have differed in regard to whether river authorities are state or local bodies for
purposes of different constitutional and statutory provisions. See Attorney General Opinion H-10
(1973) (iplicitly fiiding that river authority was “local governmental district” for purposes of article
XVI, section 14); see genemf& Attorney General Opinion JM-1005 (1989) (river authority is not state
agency for purposes of representation by attorney general). Our conclusion that “departments of the
State Government” does not include local governmental bodies is bolstered by the fact that in 1977 the
legislature added chairmen of the governing board of river authorities to the list of persons authorized
to request attorney general opinions. If heads of any governmental body created under the laws of the
state, regardless of their jurisdiction, were authorized to request opinions, adding river authorities to
the lists of authorized requesters would have been a pointless act.
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Honorable Alvin Roy Granoff - Page 6 ( oM-2o )
provides that Texas public junior colleges “shall be two-year institutions primarily
serving their local taxing districts and service areas in Texas.” The taxing authority
of junior college districts is limited to property within the district. Educ. Code
9 130.121. Junior college districts may exempt residents of the district from payment
of tuition. Id 9 130.085. Junior college districts do receive state funds, id.
4 13d.003, and are subject to supervision by the Coordinating Board, a state agency.
Id. 4 130.001. These features, however, do not give them statewide responsibility
and therefore do not make them “state” institutions any more than state funding
and supervision by the Central Education Agency make school districts state
institutions. Educ. Code 9 11.02 (authority of Central Education Agency in regard
to school districts); id. ch. 16 (Foundation School Program); see Attorney General
Opinions M-199 (1968); W-868 (1960) (concluding that junior college districts are
part of local public school system). Therefore. a junior college district is not a “state
educational institution” for purposes of section 402.042(b)(6), and its board of
trustees is not authorized to request attorney general opinions.
SUMMARY
The Higher Education Coordinating Board may not by rule
set training requirements for trustees of junior college districts.
A junior college district is not authorized to request an attorney
general opinion under section 402.042(b)(6) of the Government
Code.
Very truly yours,
DAN MORALES
Attorney General of Texas
WILL PRYOR
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General
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Honorable Alvin Roy Granoff - Page 7 (DM-20 1
RENEL4 HICKS
Special Assistant Attorney General
MADELEINE B. JOHNSON
Chair, Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General
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