                                ATTORNEY            GE&RAL            OF TEXAS
                                             GREG         ABBOTT




                                                September 5,2006



Raymund A. Paredes, Ph.D.                                      Opinion No. GA-0452
Commissioner of Higher Education
Texas Higher Education Coordinating            Board           Re: Annexation of territory by ajunior college
Post Office Box 12788                                          district (RQ-0446-GA)
Austin, Texas 78711

Dear Commissioner        Paredes:

        On behalf of Coastal Bend College, you ask our opinion regarding the authority of a
governing board~of a junior college district to order an annexation election under chapter 130, Texas
Education Code.’ Specifically, you inquire about the operation of sections 130.065 and 130.068.
See Request Letter, supra note 1, at 1.

          Section 130.065 provides the requirements for the annexation ofterritory by ajunior college
district by election. See TEX. EDUC. CODE ANN. 5 130.065 (Vernon Supp. 2006). The governing
board of a junior college district is authorized to call an annexation election upon the “presentation
     of a petition proposing the annexation ofterritory to the district.” Id. S 130.065(a). The petition
must adequately describe the territory proposed for annexation and “be signed by a number of
registered voters in the territory       equal to at least five percent of the registered voters in that
territory.” Id. $ 130,065(a)(l>(2).     Section 130.065 also sets forth the procedures for conducting
the election; procedures that include a public hearing, an informational service plan, the ballot
language, and a majority vote. See id. 5 130.065(b) (public hearing), (c) (service plan), (g) (ballot
language), (h) (majority vote); see also id. 5 130.065(d)-(f), (i)-(l) (additional procedures and
requirements),.

         Section 130.068 provides that        a “governing board of a’junior college district may order an
election on the question of establishing       expanded boundaries for the junior college district. . within
[all or part ofI2 the district’s service      area established by Subchapter J” in two instances. Id. 5
130.068(ah(b).     Those two instances        occur:


        ‘See Letter from Raymund A. Panda, Ph.D., Commissioner of Higher Education, Texas Higher Education
Coordinating Board, to Honorable Greg Abbott, Attorney General of Texas, at 1 (Feb. 6, 2006) (on tile with the
Opinion Committee, also available af http:llwww.oag.state.tx.us) [hereinafter Request Letter].

         ‘Subsection 130.068(a) relates to the expansion ofthe juniqr college district to “encompass all of the territory
located within the district’s service area established by Subchapter J.” TEX. EDUC.CODEANN. 5 130.068(a) (Vernon
Supp. 2006) (emphasis added). Subsection 130.068(b) pertains to the expansion of the junior college district to
“encompasspart ofthe territory located within the district’s service area established by Subchapter J.” Id. $ 130.068(b)
(emphasis added); see generally Tex. Att’y Gen. Op. No. GA-0314 (2005).
Raymund A. Paredes, Ph.D. - Page 2                (GA-0452)




                (a) . . if more than 35 percent of the total number of students who
                enrolled in the junior college district in the most recent academic year
                resided outside of the existing junior college district[, or]

                (b)      if more than 15 percent of the high school graduates for each
                of the preceding five academic years in the territory proposed to be
                added to the district have enrolled in the junior college district.

Id. Section 130.068 also provides that “[elxcept as otherwise provided by this section, Section
130.065 applies to an action taken under this section, including the provisions of Section 130.065
requiring a petition to be submitted before an election may be called.” Id. 5 130.068(c). Coastal
Bend College wants to know whether its governing board may call an annexation election without
a petition when one of these alternative circumstances exist. See Request Letter, supva note 1, at
l-2. Your question requires us to construe sections 130.065 and 130.068.

         The cardinal rule of statutory construction is to ascertain the legislature’s intent and to give
effect to that intent. See Union Bankers Ins. Co. v. Shelton, 889 S.W.2d 278,280 (Tex. 1994). The
plain language of the statute is the primary indication of legislative intent. See Fitzgerald v.
Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865-66 (Tex. 1999). Where the intent is
unclear from the literal language we may consider aids to construction such as the legislative history,
the object to be obtained, and the consequences of a particular construction. See Union Bunkers Ins.
Co., 889 S.W.2d at 280; see also TEX. GOV'T CODE ANN. 3 311.023 (Vernon 2005) (Code
Construction Act). A statute is to be construed so that it harmonizes with other law unless the statute
clearly contains a contrary intention. See Blackv. Am. Bankers Ins. Co., 478 S. W.2d 434,437 (Tex.
1972). But we will not apply the statutory language literally if the statute’s plain language would
lead to absurd consequences that the legislature could not have possibly intended. See Sharp v.
House ofLloyd, Inc., 815 S.W.2d 245,249 (Tex. 1991). And we strive to always “give effect to all
the words of a statute and not treat any statutory language as surplusage.” Chevron Corp. v. Redmon,
745 S.W.2d 314,316 (Tex. 1987) (citing Perkins v. State, 367 S.W.2d 140 (Tex. 1963)).

         Subsection 130.068(c) is unclear. See nx. EDUC. CODE ANN. § 130.068(c) (Vernon Supp.
2006). The language-“[elxcept         as otherwise provided by this section, Section 130.065 applies to
an action taken under this section”-indicates       that where section 130.068 provides otherwise, it does
so as an exception to section 130.065. Id.; see Fain v. State, 986 S.W.2d 666, 672 (Tex.
App.-Austin      1998, pet. ref d) (recognizing the language “except as otherwise provided” creates an
exception). Section 130.068 provides otherwise from section 130.065 in only one respect-section
130.068 authorizes the governing board to call, an election based on student benchmarks,. while
section 130.065 authorizes an election upon presentment of a petition. See TEX. EDUC. CODE ANN.
$5 130.065(a) (Vernon Supp. 2006) (“Onpresentation..              ofapetition.     .“); 130.068(a)-(b) (“[tlhe
governing board       may order an election.    . . if [specified  student  attendance  thresholds are metI”).
In all other respects the two provisions are harmonious, so that the requirements and procedures in
section 130.065 apply to an election authorized by subsections 130.068(a) or@). Thus, the authority
to call an election based on student benchmarks and the authority based on a petition appear to be
alternatives, so that subsections 130.068(a) and (b) are exceptions to section 130.065 to the extent
that section 130.065 requires a petition.
Raymund A. Paredes, Ph.D. - Page 3              (GA-0452)




         But subsection 130.068(c) also states that section 130.065 applies to actions taken under
section 130.068, “including the provisions of section 130.065 requiring a petition to be submitted
before an election may be called.” Id. $ 130.068(c). This language which can be interpreted to
require a petition would directly conflict with the construction that subsections 130.068(a) and (b)
are alternatives to the petition requirement. Were we to construe this phrase literally and under the
ordinary rules of grammar, a petition wouid seem to be required in all instances. Such a construction
would render subsections 130.068(a) and (b) meaningless and make the first part of subsection
130.068(c) surplusage. If a petition under subsection 130.065(a) is a prerequisite to an annexation
election, then satisfaction of that requirement alone would authorize the governing board to call the
election under section 130.065-the       student benchmark provisions in subsections 130.068(a) and
(b) would be unnecessary. And there is no need for subsection 130.068(c) to create an exception to
section 130.065 when it provides otherwise if section 130.068 does not provide otherwise in any
respect. Based on a purely plain reading of subsection 130.068(c), we appear to be faced then with
a choice between construing as meaningless either (1) the last phrase of subsection 130.068(c) or (2)
the fast phrase of subsection 130.068(c) as well as the entirety of subsections 130.068(a) and (b).

         But there is a construction that gives full effect to all of~section 130.068 and section 130.065
and that at the same time retains all of the statutory language of subsection 130.068(c). That
construction requires us to interpret the language of subsection 130.068(c) that states “including the
provisions of Section 130.065 requiring a petition to be submitted before an election may be called”
to relate to the “[elxcept as otherwise provided” language atthe beginning of subsection 130.068(c)
and not to the immediately preceding language that states that “Section 130.065 applies to an action
taken under this section.” Id. Under this construction, subsection 130.068(c) can be understood to
provide that section 130.068 operates as an exception to section 130.065 including section 130.065’s
petition requirement. Such a construction harmonizes sections 130.065 and 130.068 and preserves
the legislative enactment. Though this construction may not follow the ordinary rules of grammar,
we are to avoid treating statutory language as surplusage unless doing so is absolutely unavoidable.
See Davis v. State, 225 S.W. 532,535 (Tex. Crim. App. 1920); see also Escobar v. Sutherland, 917
S.W.2d 399, 407 (Tex. App.-El         Paso 1996, no writ) (recognizing that courts may disregard the
rules of grammar to give effect to legislative intent). Much like the Texas Supreme Court, here we

                do not lightly presume the Legislature [to] have done a useless act,
                and [do] not read statutory language to be pointless if it is reasonably
                susceptible of another construction.    But as both these statements
                suggest, we must recognize that possibility. It is at least theoretically
                possible that legislators-like  judges or anyone else-may         make a
                mistake.

Brown v. De Jo Cruz, 156 S.W.3d 560,566 (Tex. 2004) (footnotes omitted).

        When subsection 130.068(c) is given this construction, subsections 130.068(a) and (b)
operate as narrow exceptions to only the petition requirement of section 130.065. The remaining
provisions of section 130.065 would apply to an annexation election called by a governing board
under subsections 130.068(a) or(b). Accordingly, we conclude that the governing body of ajunior
college district may call an annexation election without a petition when authorized by subsections
130.068(a) or(b).
Raymund A. Paredes, Ph.D. - Page 4          (GA-0452)




                                     SUMMARY

                      Under the Texas Education Code, chapter 130, a governing
              board of a junior college district may call or order an annexation
              election without a voter petition when authorized by subsections
              130.068(a) or (b). An election so called must nevertheless comply
              with all other procedural requirements of section 130.065.

                                            Very truly yours,




                                        4kiZBW
                                            Attorney General of Texas



KENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee
