                                   The Attorney General of Texas                                   .
JIM MATTOX                                          November 29.      1984
Attorney General



Supreme Court BuildIn
                                 Ronorable   Bill   IKey                         Opinion No. JM-235
P. 0. Box 12548                  Chairman
Austin. TX. 7S7! l- 2548         Public Education Ctmmittee                      Re: Effect of section 23.024 (h)
512l4752501                      Texas House of RelBresentatives                 of the Education Code on school
Telex 910IS7C13S7
                                 P. 0. Box 2910                                  trustee’s  term of office
Telecopier  5W475-0268
                                 Austin, Texas    711769

714 Jackson. Sulto 700           Dear Representative       Haley:
Dallas. TX. 75202-4506
2141742.8944
                                       You ask vhet’wr a school district     trustee,  elected to a six-year
                                 term in April, 19KI. is subject to having his term cut short by school
4S24 Alberta   Ave.. Suite 160   boaFd action pursuant to section      23.024 of the Education Code.      This
El P8s.a. TX. 79905.2793         statute,  enacted :Ln 1983, allows certain school districts     to establish
915/533-w                        single-member districts    for electing    70% or more of their trustees.
                                 Acts 1983, 68th Leg., ch. 316, Sl at 1687.        Subsection (h) of section
 CO1 Texas. Suite 700
                                 23.024 provides:
“ouston. TX. 77002-3111
7131222-5888                                 At the first election         at which some or all of the
                                             trustee:s     are elected     from trustee     districts    and
                                             after     c!s.ch redistricting,      all positions       on the
SW Broadway. Suite 312
Lubbock. TX. 79401.3479
                                             board s:lall be filled.           The trustees   then elected
SW7476238                                    shall d:&v lots for staggered terms as provided by
                                             Section      23.13. 23.14,      or 23.15 of this code, as
                                             applical):le.      (Emphasis added).
4309 N. Tenth. Suite B
McAllen, TX. 7850%16R5
5121592.4547
                                 Sections 23.13. 23.14. and 23.15 of the code provide that trustees                in
                                 various classific,lt:ions    of school districts     shall have staggered terms
                                 of three years, six yiars,       and four years respectively.          For example,
 200 Main Plaza. Suite 400       in a school dist:::lct ~where trustees      hold six-year      terms, in any one
 San Antonio. TX. 782052787
                                 election   year some trustees will be up for reelection,             some will have
 51212254191
                                 two years remaining of their six-year         terms, and some will have four
                                 years remaining t> serve.       In the first regular election         under section
 An Equal OpportUnW              23.13,   23.14,   or 23.15,    all trustee    positions    sre filled,      and the
 Aftirmative Action Efvl~v~      trustees   draw lots for term8 of varioug length, thereby establishing
                                 the staggered terns.      -See Educ. Code 1123.13(c),      23.14(c),    23.15(c).

                                       It is suggested that the single-member districts     might be phased
                                 in over several Iwars as the trustees      complete their six-year   terms.
                                 Section 23.024 01: the Education Code, however. does not authorize         a
                                 gradual changeovw.      At the first    election,  “all  positions  on the
                                 board shall be filled,”   and the trustees are to draw lots for terms of




                                                                    p. 1055
Honorable   Bill   Haley - Page Z!       (n!-235)




varying length.      The changeover occurs at once, and unequal terms are
necessary to reestablish      the scheme whereby only a portion of trustee
positions   are on the bsll,H      in each election   year.    Moreover.      the
statute   uses   mandatory lmguage       In directing   that all     positions
“shall”   be filled.      This Flrovision effectively    ends the terms of
incumbent trustees     who, for example, were elected      to six-year     terms
and would otherwise have tw3 or four years to serve.

       You ask whether a trustee elected to a six-year                  term prior    to the
effective    date of article      23.024 of the Education Code may be deprived
of his      full    term by board            action      under that      provision.       The
legislature      in enacting       m=I*tlon 23.024 has clearly
                                  s-.                                      authorized     the
school board to take this action.                See State v. Stanfield,        18 S.W. 577
(Tex.     1892).    Article     VII,      section     16 of the Texas Constitution
empowers the legislature              ‘to fix      any term of office           for   school
trustees,     not   to   exceed    :3:1x   years.       See   Attorney    General   Opinion
o-1995      (1940).       Section        23.024(h)     fixes       terms    WIthin      these
constitutional       limits.     Cf. Attorney General Opinion MU-536 (1982)
 (Tex. Const. art.        V, I6-Fixes          six-year     term for court of appeals
judges).

        The legislature      may enact a statute        shortening    an incumbent
officer’s     term. as long as the constitution        does not fix the term of
office.     Popham i. Patiersvn,       51 S.W.2d 680 (Tex. 1932).        In Tarrant
County v. Ashmore, 635 S.Wrrd 417 (Tex. 1982) cert. denied, 459 U.S.
1038 (1982). the Texas Supclzme Court considered”thepurported                  rights
of duly e&ted        officehol&rs     to complete their full terms of office.”
635 S.W.Zd at 418.          The Tzirrant County Comissioners       Court adopted a
redistricting      plan and concurrently        ordered    that all    justice     and
constable     precincts    and eclch office   located    therein be abolished       so
that the newly defined of:i:tces could be filled             by appointment.       The
justices    and constables      who were removed from office        sought damages
and other relief       against the commissioners court, claiming an entitle-
ment to complete their t(!Ims of office             and violation     of their due
process rights.

        The supreme court found that there             was no taking of property in
 violation   of article  I, section   17 of          the Texas Constitution   or the
 due process    clause  of the Fifth and              Fourteenth Amendments of the
 United States Constitution.      It quoted          from State ex rel. Maxwell v.
 Crumbau h. 63 S.W. 925, 9:!i (Tex. Civ.              App. - San Antonio 1901, writ
 Tiim+

                  A public offi,ce   is not ‘property,’     within the
              meaning of the ~:~~nstitutional provision       that ‘no
              person   shall   bt! deprived    of life,    liberty   or
              property without due process of law.’            It is a
              mere public    agency.    revocable  according     to the
              will and appoint,nlent of the people, .as exercised



                                          p. 1056
Honorable   Bill   Hsl.ey - Psge :3    (JM-235)




            in the constitut~lon          and the laws enacted            in
            conformity therawl~th. Moore v. Strickling              (U.Va.)
            146 W.Va. 5151.   _ . ,33 S.E. 274. 50 L.R.A.        279.     In
            ;he     case    cited     the    court-    in    its   opinion
            makes . . .      the    following      quotation:      ‘It    is
            impossible     to cclt.ceive how,       under our form of
            government, a person can own or have a title               to a
            governmental office.         Offices    are created for the
            administration       of public affairs.        When a person
            is inducted       into an office        he thereby becomes
            empowered to exerc:ise its powers and perform its
            duties,    not for 111.8, but for the public,        benefit.
            It would be a mi,3nomer and a perversion             of terms
            to say that an i,ccumbent owned an office                or had
            any title    to it.’

      The Texas Supreme Court determined          that

            every public offj,ceholder   remains in his position
            at the sufferance      and for the benefit    of the
            public,  subject to removal from office  by edict of
            the ballot   box at the time of the next election,
            or before that tj.me by any other constitutionally
            permissible   means.

635 S.W.Zd at 421.          Its de::Lsion is in accord vith the majority rule
in other     jurisdictions,       ac shown by its survey of authorities             from
other states.       An officer      may have a property interest       in his office
that can be protected          agsjnst   interference   by s private person, but
“the qualified       interest     htld by a public officer       is not ‘property’
within     the sense of constitutional           guarantees against       governmental
taking of property          without    compensation.”     Id. at 422.         See also
Aigginbotham v. Baton Rougjr, 306 U.S. 535 (19m;                Taylor v. Beckham,
178 U.S. 548 (1900); --      Moore v. El Paso Commissioners Court, 567 S.W.2d
15 (Tex. Civ. App. - El Paso 1978, writ ref’d                    n.r.e.);      Attorney
General Opinion H-955 (19;‘i).             Cf. Childress    County v. Sac&e,         310
S.W.2d 414. (Tex. Civ. App. - Amarillo, writ ref’d n.r.e.),                per curiam.
312 S.W.2d 380 (Tex. 1958) (county commissioner’s               office     not vacated
by change of precinct boundaries which removed his residence                   from his
precinct).

      We conclude,  based on Jarrant County v. Ashmore, that the terms
of incumbent school board members may constitutionally       be shortened
pursuant to legislative   ac eion.  The trustees have no right to serve
out full   terms that would bar the legislature     from enacting section
23.024 and making it applicable      to incumbents.    The board’s  action
pursuant to this sectjon      did not unlawfully    deprive  a previously
elected trustee from serving out a full term.



                                       p. 1057
Monorable Bill    Haley - Page ,4    (a-235)




                                 SUMMARY

               Section 23.024 of the Education Code authorizes
           certain      school.       districts       to     establish
           single-member     d:lstricts       for  trustees.      Under
           subsection   23.026(h)      of the code, all trustees’
           positions   will bir filled      by election    at the same
           time, with the result           that the terns of some
           incumbent     tNst ees      will     be   shortened.      The
           shortening   of incumbent trustees'          terms pursuant
           to section    23.024(h)     of the Education Code does
           not deprive the trustees          of a property right or
           any entitlement    t,c serve out a full term.




                                               s k
                                                Very



                                               -J I M
                                                       ruly yours


                                                       k
                                                         MATTOX
                                                 Attorney General of Texas
                                                                             -



TOMGREEN
First Assistant    Attorney   Goneral

DAVID R. RICRARDS
Executive Assistant Attorney        General

 RICK GILPIN
 Chairman, Opinion Committelr

 Prepared by Susan L. Garrison
 Assistant Attorney General

 APPROVED:
 OPINIONCOMMITTEE

 Rick Gilpin, Chairman
 Colin Carl
 Susan Garrison
 Tony Guillory
 Jim Hoellinger
 Jennifer Riggs




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