                                              KEN PAXTON
                                         ATTORNEY GENERAL OF TEXAS



                                                 July 13, 2016



The Honorable Ana Markowski Smith                         Opinion No. KP-0102
Val Verde County Attorney
207 East Losoya Street                                    Re: Whether a school district board of trustees
Del Rio, Texas 78840                                      may fill a vacancy through a special election on
                                                          a uniform election date more than 180 days from
                                                          the onset of the vacancy (RQ-0091-KP)

Dear Ms. Smith:

       You ask whether an: independent school district board of trustees may fill a vacancy
through a special election on a uniform election date more than 180 days from the onset of the
vacancy. 1 You state that a member of the board of trustees of the San Felipe Del Rio Consolidated
Independent School District (the "District") retired on October 14, 2015, creating a vacancy in a
term that does not expire until May 2018. Request Letter at 1. Section 11.060 of the Education
Code provides:

                 (a) If a vacancy occurs on the board of trustees of an independent
                     school district, the remaining trustees may fill the vacancy by
                     appointment until the next trustee election.



                 (c) Instead of filling a vacancy by appointment under Subsection (a)
                     ... , the board or municipal governing body may order a special
                     election to fill the vacancy. A special election is conducted in
                     the same manner as the district's general election except as
                     provided by the Electfon Code.

                 (d) If more than one year remains in the term of the position vacated,
                     the vacancy shall be filled under this section not later than the
                     180th day after the date the vacancy occurs.



         1
          Letter from Honorable Ana Markowski Smith, Val Verde Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y
Gen. at I (Jan. 20, 2016), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").
The Honorable Ana Markowski Smith - Page 2                      (KP-0102)



TEX. EDUC. CODE § 11.060. Thus, the statute authorizes appointment and special election as
alternative methods of filling a vacancy. Id.§ 1 l.060(a), (c). Here, because the trustee resigned
with more than a year remaining in his term, subsection (d) creates a period for filling the vacancy
of 180 days from October 14, 2015, or until April 11, 2016. Id.§ 1 l.060(d); see Request Letter at
1.2

        Subsection 11.060(c) recognizes that there may be exceptions in the Election Code
pertaining to the district's conducting a special election. See TEX. EDUC. CODE§ l l.060(c). The
Election Code "applies to all general, special, and primary elections held in this state" and
"supersedes a conflicting statute outside" of the Election Code unless a statute expressly provides
otherwise. TEX. ELEC. CODE§ l.002(a), (b). Subsection 41.00l(a) of the Election Code designates
uniform election dates:

                  (1) the first Saturday in May in an odd-numbered year;

                  (2) the first Saturday in May in an even-numbered year, for an
                      election held by a political subdivision other than a county; or

                  (3) the first Tuesday after the first Monday in November.

Id § 41.00l(a). "[E]ach general or special election in this state" must be held on one of these dates
"[ e]xcept as otherwise provided" by chapter 41, subchapter A of the Election Code. Id. After the
trustee's resignation in October 2015, the next two uniform election dates were November 3, 2015,
and May 7, 2016. Id.; Request Letter at 2-3. The November 3 date, however, would not have
allowed enough time after the resignation to issue an order sufficiently in advance of the election
as required by subsection 201.052(a) of the Election Code. TEX. ELEC. CODE § 201.052(a)
(generally requiring a special election to fill a vacancy to "be held on the first authorized uniform
election date occurring on or after the 46th day after the date the election is ordered"). A special
election ordered earlier than 46 days before the May 7 uniform election date would comport with
subsection 201.052(a) of the Election Code. ld. 3 But an election on May 7 would not have filled
the vacancy on the Board within 180 days of the onset of the vacancy as specified by subsection
11.060(d) of the Education Code. See TEX. EDUC. CODE § 11.060(d); Request Letter at 1.



          2
            Subsection 11.060(d) states that the vacancy "shall" be filled within the 180-day period. TEX. EDUC. CODE
§ 11.060(d). While the word "shall" is generally construed as mandatory, it is sometimes held to be directory,
particularly when a statute sets a time for taking some action but does not restrict or provide consequences for taking
the action at a different time. Lewis v. Jacksonville Bldg. & Loan Ass 'n, 540 S.W.2d 307, 310 (Tex. 1976); see also
Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 495 (Tex. 2001) ("Ifa provision requires that an act be performed within
a certain time without any words restraining the act's performance after that time, the timing provision is usually
directory."); Burton v. Ferrill, 531 S.W.2d 197, 198-99 (Tex. Civ. App.-Eastland 1975, writ dism'd) (determining
that a statute providing that temporary directors "shall" be appointed on a certain date was directory with respect to
the date of appointment).

        3The Board's February 15, 2016 order to hold a special election on May 7, 2016 to fill Place 1 on the board

is posted on the District's website. See http://www.sfdr-cisd.org/sites/default/files/Order%20of>/o20Election
%20For%200ther%20Political%20Subdivisions%20Place% 201.pdf.
The Honorable Ana Markowski Smith - Page 3                       (KP-0102)



        Subsection 41.004(a) of the Election Code addresses potential difficulties with conducting
a special election within a particular statutory period:

                   (a) If a law outside this code ... requires a special election subject
                       to Section 41.00l(a) to be held within a particular period after
                       the occurrence of a certain event, the election shall be held on an
                       authorized uniform election date occurring within the period
                       unless no uniform election date within the period affords enough
                       time to hold the election in the manner required by law. In that
                       case, the election shall be held on the first authorized uniform
                       election date occurring after the expiration of the period.

TEX. ELEC. CODE § 41.004(a). Subsection 11.060(d) of the Education Code is a law outside of the
Election Code that "requires a special election ... to be held within a particular period after the
occurrence of a certain event," that is, within 180 days from the occurrence of a vacancy on a board
of trustees. Id.; see TEX. EDUC. CODE§ 11.060(d). As discussed above, "no uniform election date
within the [ 180-day] period affords enough time to hold the election in the manner required by
law." TEX. ELEC. CODE § 41.004(a). Therefore, subsection 41.004(a) of the Election Code
authorizes a special election to fill the vacancy on the Board "on the first authorized uniform
election date occurring after the expiration of the [180-day] period," which was May 7, 2016. Id. 4




          4 A brief submitted by the Office of the Texas Secretary of State states that "it is this Office's position that

Section 41.004 of the Texas Election Code supersedes [section 11.060(d)] of the Education Code to the extent of any
conflict, and it is permissible for [the District] to hold its special election on May 7, 2016." Letter from Ms. Lindsey
Wolf, Gen. Counsel, Office of the Tex. Sec'y of State, to Honorable Ken Paxton, Tex. Att'y Gen. at 4 (Feb. 24, 2016).
The brief also discusses other election issues, but because the issues are beyond the scope of your question, we do not
address them in this opinion.
The Honorable Ana Markowski Smith - Page 4          (KP-0102)



                                     SUMMARY

                      Subsection 11.060 of the Education Code authorizes a board
              of trustees of an independent school district to fill a vacancy within
              180 days of the occurrence of the vacancy by special election. Ifno
              uniform election date falls during the 180-day period that would
              afford enough time to hold a special election in the manner required
              by law, subsection 41.004(a) of the Election Code authorizes the
              board to hold the special election on the first authorized uniform
              election date following the 180-day period.

                                             Very truly yours,




                                             KEN PAXTON
                                             Attorney General of Texas



JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee
