,




                             QBfficeof tfp Elttornep QBeneral
                                     &date of llCexae
DAN MORALES
 ATTORNEY
      CENERAL
                                            November 1,199l

     Mr. Lionel R. Meno                                Opinion No. DM-53
     Commissioner
     Texas ~Education Agency                           Re: Construction of section 23.023(h) of
     1701 North Congress                               the Texas Education Code (RQ-157)
     Austin, Texas 78701-1494

     Dear Commissioner Meno:

            You ask for a construction of section 23.023(h) of the Education Code.
     Specifically, you ask how that provision applies to an independent school district
     governed by a seven-member board that becomes subject to the provisions of
     section 23.023 of the Education Code at a time when fewer than four positions on
     the board of trustees are scheduled to be filled at the school district’s next regularly
     scheduled trustee election.

             Section 23.023 of .the Education Code provides that independent school
     districts with 64,000 or more students in average daily attendance shall be governed
     by nine-member boards of trustees elected in biennial elections to staggered four-
     year terms. Educ. Code 9 23@3(a). (h).l

            Independent school districts not subject to the requirements of section 23.023
     are generally governed by boards of trustees of seven members. Educ. Code Q
     23.01.2 Subsection (h) of section 23.023 provides a transition mechanism for the
     conversion from a seven-member board to a nine-member board. Subsection (h)
     appears to assume that a school district becoming subject to the requirements of


              %cept as provided by .subsections (j) and (k), section 21.023 applies, by its terms, to all
     independent sckool districts whether created by general or special law. Subs&ion (i) of section 23.023
     excepts a sckool district, all or part of which is located in certain cities, from the coverage of the
     section. Subsection Q excepts any school district which adopted a plan for electing any part of its
     trustees from single-member dktrkts before August 31,199l.

              %depdeat        school d&rifts with fewer than 150 students may be governed by boards of
     trustees of three or five members. Id 0 23.022.




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section 23.023 will have four-year terms. The terms for which such trustees are
elected, however, vary among independent school districts. Educ. Code $5 23.12 -
23.16. The subsection additionally appears to assume that such a school district will
have four trustee positions up for reelection at the first election after the district
becomes subject to the requirements of section 23.023.” It does so by providing
that at the first election held under section 23.023 six board members will be elected
and also that members of the board of trustees serving on the date at which a
district becomes subject to section 23.023 shall serve the remainder of their terms.
It is possible, though, for a district to become subject to the act at a time when only
three of its current trustee positions are up for election. In that case, at the first
election to be held under section 23.023, four of the current members would retain
their seats for another two years. If six positions were filled at the election in
compliance with subsection (h),~a ten-member board would result. This result is
inconsistent with subsection (a) of section 23.023 which requires a nine-member
board.

        We are advised that the Austin Independent School District (AND) has
exceeded 64,000 students and has become subject to section 23.023 of the Education
Code. Thenboard members of AISD have four-year terms. However, AISD has only
three of its current trustee positions up for election at its next biennial trustee
election. Accordingly, as explained above, if AISD follows the procedure prescribed
by subsection (h) of section 23.023 literally, it will exceed the number of trustees
authorized by law.4

       We believe that the legislature’s intent as expressed by subsection (a) of
section 23.023 is clear and unambiguous. Any construction which results in a ten-
member board of directors, even temporarily, creates radical changes in the
composition and operation of the board of trustees and cannot find support in the
language of the statute. For example, subsection (h) provides, in part, that the

         %&&ion        (k) requires that a school distrid that becomea subject to section 23.023 will begin
electing trustees in accordance with the section “no later than the tint regular election held in the next
calendar year or Subsequent year.’ For districts with biennial elections, this requires compliance with
the section at the fust eledion held in a year after the calendar year in which the district becomes
subject to the section.

         4We are further advised by the Texas Education Agency that no other school district is likely
to become subject to the requirements  of section 23.023 before the legislature meets again in regular
session, at which time the other obvious administrative difficulties with section 23.023 may be
addressed.




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Mr. Lionel R. Meno - Page 3           (DM-53)




members of the board for whom there was no election (the four remaining members
of the seven-member board) will draw lots to determine which of the three
remaining trustee districts each of them will represent. As there are more
remaining members than districts to represent, a construction resulting in a ten-
member board would create, perforce, an additional at-large member, diluting the
voting strength of each of the other members. With a nine-member board, five
votes carries a motion. With a ten-member board six votes are needed.

        Similarly, we do not think that the legislature intended that the adoption of
the provisions of section 23.023 be delayed for a biennium in order to wait for a
situation in which only three current members would be in a position to hold over.
This construction would violate express language in subsection (k): We note that
when section 23.023 was first adopted in 1977, the legislature found that in the
school districts with the largest number of students, the at-large election of all
members of the board of trustees hinders communication between trustees and
constituents and may dilute the voting power of ethnic groups. Acts 1977,65th Leg.,
ch. 852, 5 3. Given the importance of these concerns, we believe the legislature
intended that subsection (k) be given effect.

       Subsection (h) clearly states that the members of the current board shall
serve out their terms. There is no mechanism under state law to remove a duly
elected offtcial who is guilty of no wrongdoing. Accordingly, the provision of
subsection (h) providing that current members of the board serve out their terms
must be given effect.

         It is axiomatic that the fundamental rule controlling the construction of
statutes is to ascertain the intent of the legislature. Calvert v. Texu.rPipe Line. Co.,
517 S.W.2d 777 (Tex. 1974). Even a ‘cursory examination of subsection (h) of
section 23.023 reveals that it is intended to provide a transition mechanism to
expand a board of trustees from seven to nine members. Where. subsection (h)
presents a problem in thin regard with respect to AISD is in requiring that six
members be elected in the first election under section 23.023. We think that in
stating that six members be elected, the legislature was merely making the (as it
turns out, unwarranted) assumption that there would be four vacancies to fill on the
previous seven-member board at the time of conversion. Accordingly, we believe
the intent of the legislature was not to prescribe a set number of trustees that must
be elected at that time, but to instruct the school district to elect enough members to
fill its existing vacancies plus the two new positions created by the conversion to
nine members.


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Mr. Lionel R. Meno - Page 4                    (DM-53)




       Texas authorities support the interpolation of words into a statute where it is
necessary to achieve a clear legislative intent. Mauzy v. Lcgirlarive RedistrictingBd,
471 S.W.2d 570 (Tex. 1971). Reading words into a statute must be done with
circumspection.     However, we believe that the present instance creates an
appropriate circumstance for this method of statutory construction.              Where
necessary to avoid irrationality or inconsistency, and where, as here, the legislative
intent may be inferred from other parts of the statute, and where the omission is
apparently the result of a mistake, the rules of statutory construction support
reading words into a statute. 2A, SUTHERLAM)STATUTORYCONSTRUCTION$
47.38 (4th ed. 1986). Accordingly, we find that in order to give effect to the intent of
the legislature in enacting section 23.023 of the Education Code, subsection (h) of
that section should be read, in pertinent part, as follows:

            jive or six members, as appropriate, shall be elected - the
             president, vice-president, and three or four regular members, us
             approptiate.. . . (Emphasis indicates words that should be read
             into the statute.)

       For the reasons stated herein, we believe that subsection (h) requires the
election of five members to the board of trustees of a district subject to section
23.023 of the Education Code when three positions of the prior seven-member
board are up for election in the first election held under section 23.023.s

                                            SUMMARY

                 Subsection (h) of section 23.023 of the Education Code
            requires the election of five members to the board of trustees of
            a district subject to,section 23.023 when three positions of the
            prior seven-member board are up for election in the first
            election held under section 23.023.




         SThis opinion does not address any issues arising from the application of section 5 of the
Voting Rights Act of 1%5, as amended, 42 U.S.C. P 1973c, to the statute in question or its
implementation. Submission, pursuant to section 5 of the Voting Rights Act of 1965, to the United
States Department of Justice of the 1991 amendments to section 23.0’23,or of any local implementation
thereof, is the responsibility of either the Secretary of State or the local school district, as appropriate.




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Mr. Lionel R. Meno - Page 5          (DM-53)




                                                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

RENEAHICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by John Steiner
Assistant Attorney General




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