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                                        &ate of Cexas
DAN MORALES                               June 1,1992
 ATSORSLI
       GENERAL



     Honorable John Hannah, Jr.                  Opinion No. DM-122
     Secretary of State of Texas
     P. 0. Box 12697                             Re: Methods of electing hospital district
     Austin, Texas 78711-2697                    directors under chapter 286 of the Health
                                                 and Safety Code (RQ-367)

     Dear Secretary Hannah:

             You ask about the provisions of Senate Bill 907 of the 71st Legislature
     (repealed by Acts 1991, 72d Leg., ch. 14, 5 285(b)(8)) which are now codified as
     chapter 286 of the Health and Safety Code. Chapter 286 provides for the creation
     of hospital districts pursuant to local petition and election. You seek clarification as
     to the methods of electing hospital district directors permitted by those provisions.
     Your specific questions are:

               1. Whether, in a hospital district created under chapter 286, all
               directors may be elected from single member districts;

               2. If so, whether such single member districts             must   be
               coterminous with county commissioners’ precincts.

              Creation of hospital districts under chapter 286 is initiated by the petition of
     registered voters of the territory of the proposed district. Health & Safety Code
     5 286.021. A petition is submitted to the county judge of each county in which the
     territory of the district is to be located, and if it is in order, the commissioners court
     calls an election on the issue of creation of the district. Id. $3 286.021, 286.023.
     Subsection (a)(7) of section 286.022 requires the petition to show “the method by
     which the permanent directors will be elected, as provided by Subsection (c).”
     Subsection (c)(2) of section 286.022 provides for the petition’s indicating:

                    the method by    which directors are to be elected, whether at
               large, by place, or   both, so that a specific number of directors
               are elected from      each commissioner precinct and a specific
               number are elected     at large.


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Honorable   John Hannah, Jr. - Page 2         (DM-122)




        Section 286.022(c)(2) appears to allow for three distinct schemes of electing
chapter 286 hospital district directors: “at large, by place, or both” so that some are
elected from commissioners precincts and some “at large.” Section 286.042, in pro-
viding for initial directors’ election and the staggering of their terms, again appears
to provide for the three alternative schemes set out in section 286.022(c)(2): “at
large” in subsection (b), “by place” in subsection (c), or “from commissioners pre-
cincts and at large” in subsection (d).

        The terminology, “by place,” is sometimes used to denote the scheme of
electing multiple candidates from the same territory by assigning distinct “place”
numbers to as many positions as are to be filled by the election. Candidates run and
receive votes from the entire election territory “by place.” Election “by place” in this
sense permits the election of multiple candidates from the same territory by
majority vote.    See, e.g., Local Gov’t Code 0 21.001 (election of general-law
municipality aldermen “by place”); Elec. Code 8 275.003 (“by place” election of
governing body in city of population of 200,000 or more).

        The scope of the terminology “by place” in the above-quoted provisions of
chapter 286, however, must not be limited to such a scheme whereby candidates for
“places” are voted on by the entire election territory. The third alternative scheme
of electing directors permitted under section 286.022(c)(2), election “both” at large
and by place, means, by the terms of that provision, “that a specific number of
directors are elected from each commissioner precinct and a specific number are
elected at large.” Election “by place” in that section, and in the chapter generally,
must therefore encompass election of candidates from only a portion of the district,
such as a county commissioners’ precinct.

         Your first question, again, is whether chapter 286 permits a district to elect
all of its directors from “single member districts.” The latter term clearly means the
election of each of the members of a governing body from a distinct portion of the
whole territory of the political unit over which that governing body has authority,
see, e.g., Avery v. Midland Counry, 390 U.S. 474 (1968). Thus, with respect to a
chapter 286 district, if each director were elected from a portion of the hospital
district to a discreet “place,” under the second alternative method of electing
directors set out in sections 286.022(c)(2) and 286.042(c) as discussed above, such
election method would be tantamount to electing all of the district’s directors from
single member districts.

         We note, at this point, that chapter 286 permits only an odd number of
directors to be elected. See Health & Safety Code § 286.022(c)( 1). For aI/ directors


                                         p.    630
Honorable   John Hannah, Jr. - Page 3        (DM-122)




to be elected from single member districts, there would thus have to be an odd
number of such single member districts.            Determining whether a chapter 286
hospital district may elect all of its directors from single member districts thus raises
the issue presented in your second question: whether a single member district -- or
territory from which a “place” is filled, in the language of chapter 286 -- must be
coterminous with commissioners precincts. If it must, then a hospital district could
not elect all of its directors from single member districts unless it was composed of
an odd number of commissioners precincts.            In that case, a simple county-wide
district could not elect all of its directors from single member districts because it
would be restricted to four such single member districts, corresponding to the
county’s four commissioner precincts,’ but, by the terms of the statute, would have
to elect an odd number of directors.

        We do not believe, however, in response to your second question, that a
chapter 286 hospital district’s single member districts -- that is, the territories from
which “places” are tilled--must       be cotenninous with commissioners precincts.
Although subsection (c)(2) of section 286.022 specifies that if both at large and “by
place” methods are used, the candidates for places are to be elected from
commissioners precincts, it does not limit the second alternative election method,
the election of all directors “by place,” to the use of commissioners precincts for the
portions of the district from which candidates for such places are to be elected. Nor
do we find any other provision of chapter 286 that does so.

         Indeed, other provisions of chapter 286 are consistent with the proposition
that “single member districts” within a chapter 286 district need not be coterminous
with commissioners precincts. For example, section 286.021 provides that a district
may be created “located wholly in one county” or “that contains territory located in
more than one county,” these provisions do not indicate that districts must be
coterminous with county or commissioners precinct lines. We note also that section
286.101 provides for the expansion of a district by the addition .of a “defined
territory” and section 286.029 provides that a district may not include territory
already a part of another hospital district.     These latter provisions appear to
contemplate inclusion or exclusion from districts of areas not amounting to entire
commissioners precincts, and thus the existence of districts not made up of entire
commissioners precincts. Similarly, section 286.022, in providing for the contents of
a petition, requires that the proposed boundaries of a district sought to be created
be “designated by metes and bounds or other sufficient legal description,” again,


       'SeeTex.Const.art.V,§
                         18.


                                          p.   631
Honorable    John Hannah, Jr. - Page 4        (DM-122)




appearing to allow for districts composed        other than of entire   commissioners
precincts. Id. 5 286.022(a)(3).

        In light of the foregoing, it is our opinion that chapter 286 districts may be
created utilizing the method of electing all directors from single member districts.
Where all directors are elected from such single member districts, the boundaries of
the latter need not be drawn so as to be coterminous with county commissioners
precincts.    Of course, in drawing single member district boundaries, particular
hospital districts will be subject to one-person-one-vote and other constitutional and
statutory requirements bearing on suffrage. See Voting Rights Act, 42 U.S.C.
$1973c (requiring United States Justice Department preclearance             of changes
affecting voting).


                                   SUMMARY

                 Hospital districts created under chapter 286 of the Health
            and Safety Code may elect all district directors from single
            member districts. Where all directors are elected from single
            member districts, the boundaries of the latter need not be
            coterminous with county commissioners’ precincts.




                                                     DAN      MORALES
                                                     Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee




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