                                  April   1, 1974


The Honorable    J. W. Edgar              Opinion      No.   H-   266
Commissioner     of Education
Texas Education     Agency                Re:          Whether    ISD once having pro-
201 E.” Eleventh   Street                              vided for a runoff election,
Austin,  Texas 78701                                   must do so in each election
                                                       thereafter
Dear   Dr.   Edgar:

         In 1955 the Texas Legislature        adopted Article     2775s-1, Vernon’s
Texas Civil Statutea,      authorizing     the trustees    of independent    school
districts    to order that all candidatea      for school trurtee     be voted on by
position    and be designated    on the ballot according        to the number of the
position    which they sought.      It further   provided:

               “Once the Board of Truateen        of an independent   school
               district   shall have adopted the foregoing     procedure
               for electiopr,    said Board of Trusteesbi      their auccee-
               #ors may not rescind      the action which adopted the
               foregoing    procedure.  ”

        Pursuant   to this legislation,     the Board of Trustees      of the Abilene
Independent    School District     resolved    that its trustees   would be 80 elected.
Election   wao on the basis of the winning candidate           having a plurality   of
the votes.    There were no runoff elections.

      In 1969, with the adoption   of the Education   Code, V. T. C. S., Article
2775a-1 became    $23. I1 of the Code.   The language   of Article 27758-l
which we have quoted became Subsection       (0 of 5 23.11:

               ‘l(f) Once the board of trustees   of an independent     school
               district  has adopted the provisions    of this section,
               neither the board of truatees    nor their Buccee#or#      may
               rescind   the action. ”




                                          p.    1248
The Honorable     ‘i. W.   Edgar,    page   2     (H-266)




         In 1971 by Acts 1971, 62nd Leg.,          ch. 760,   p. 2410, effective
August     30, 1971, $23.11 ~8s amended           by adding   to it Subsection   (h):

                       “(h) The board msy also provide           by resolution,
               at least 60 days prior to the election,          th8t if no c8n-
               did8te for 8 position   receives    8 majority   of the votes
               cast for that position   the bo8rd will order 8 runoff
               election  ,to be held not more th8n 30 d8ya 8fter the
               date of the first election.     At that runoff~election,    the
               n8mea of the two persons       receiving   the higheot num-
               ber, of votes for that position    in the first election~sh811
               be pl8ced on the bbllot. ”

         Pursubnt  to this authority,  the Borrd of Trustees            of the Abilene
District,    in 1972 sdopted the following  resolution:

               “BE IT FURTHER          RESOLVED,       that if in the election
               herein   cslled,for  April. 1, 1972, no: cbndidate      for :8
               position   on the. ballot ah811 receive     8 mrjor,ity   of the
               votes cart’for’.auch     position,  the Bosrd of Educ8tio,n
               will   order 8 runoff election     to be held not more thrn
               thirty days after the dste of the first election,          and th8t
               the names of the two perrons         receiving   the highest
               number of votes for that position         in the first election
               shall be plrced on the brllot for the runoff election.”

       There     has been no rimilbr  resolution adopted with reference                   to
the election    to be held April 6, 1974. ,Youhsve   asked:

               “Under    the submitted     facts.  leg8lly   must   8 runoff
               election   be called in the April      1974 trustee      election      *
               of the Abilene     school district,     should 8 candidrte       not
               receive    8 majority    vote in 8 numbered       position    up
               for election.

               “St8ted 8nother way.         where the district h8s once
               provided  for 8 runoff       election - even though limited




                                            p.   1249
The Honorbble      J. W.    Edgar,    p8ge   3      (H-266)




              by ite resolution        to 8 p8rticul.r    year - must it
              there8fter   hold      runoff elections    in plur8lity vote
              oituationr.  ”

       Our   function ib to attempt        to determine   the intent   of the Legirlrture.
53 Tex.   Jur. Zd, StatUtee,   $125;       p. 180 et seq.

        Subsection    (f) refere   to “the provisions     of thin section.”       “This
aection”   is § 23. Il.    The 1971 Act rdopting       Subsection   (h) epecificrlly    m8de
it 8 part of 3 23.11.      Therefore,‘re     of the 1972 adoption      of the resolution
providing    for 8 runoff by the Abilene        Dietrict.   Subsection     (h) w8e one of
the “proviaione     of this section”     which,   once bdopted,      there8fter    could not
be rescinded     by action of the trueteer.

         It is our opinion,   therefore,    thrt, once h8ving adopted the provirionr
of Subrection     (h), even though itr reeolution       referred    epecificrlly    to the
1972 election,     the Borrd of Trurteee       of the Abilene    Independent     School
District     w8e withdut 8uthority     to ch8ngc the rule 8nd that, in the 8brence
of 8 court decision      or rhtutory     chmge,    the elections    of trueteen    for’th8t
dirtrict    murt  be determined     in runoff eleciione     if there is no m8jority       on
the firae b8llot.

                                          SUMWRY

                       Once 8 echool district,,   rubjstt   to the provisionr
               of Article   27758-1, V. T. C.S.,    or 0 23.11, Educrtion
               Code,    V. T. C. S. , h8e 8dopted 8 runoff 8e 8 merne of
               determining     the election of itr trusteea.    all ouch elec-
               tions there8fter    will be dttermined     in that manner.      ’




DAVID KENDALL,             Ch8irm8n
Opinion Committee
                                             p.   1250
