## HE ,~%TOKNEY GENERAL OFTEXAS

Honorable Bevington Reed Commissioner of theCoordinating Board Texas College &University System P. 0. Box 12788, Capitol Station Austin, Texas 78711

Dear Dr. Reed: Opinion No. M- 1081
Re: Authority of the Board of Trustees of **Kilgore College**  District toprovide for interior redistricting of the district in order that trustees **may** be elected accordin topopulation.
You have requested this office to render an official opinion concerning the authority of theKilgore Junior College District to subdivide the district and elect **members** to the Board of Trustees from within each one of these sub-districts instead of electing all of the trustees from the entire district at large.

Specifically, your question is as follows:
"Does the Board of Trustees have the authority toprovide for interior redistricting of the district in order that trustees may be elected according topopulation?"
You have stated inyour letter that prior to September 1, 1969, the Board of Trustees of **Kilgore** Junior College District, acting underprovisions of Section 51.072(h) of the 1969 codification of the Texas Education Code*, adopted the lawspertaining to Junior College **Districts** of Texas.

Numerous amendments to this Code were enacted by the 62nd Legislature in 1971. Included in these changes was the renumbering ofmany of the Sections of the 1969 codification. Those portions of

*This first codification of the laws on education was enacted in 1969, effective September 1, 1969. Acts 61st Leg., 1969, R.S., ch. 889,p. 2735, H.B. 534.

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the 1969 codification with which we are concerned were carried forward by the 1971 amendments verbatim under different Section numbers. Wewill hereinafter use the new Section numbers inmaking references to theprovisions of the Code which we consider.

You have enclosed with your letter aproposed resolution which would subdivide thedistrict into geographical areas of approximate equal populations. Theproposed resolution provides that trustees elected from,each of the districts shallbe residents of the district inwhich they are elected. This resolution states that the Board of Trustees ofKilgore Junior College District isnow comprised ofnine persons. The stated need for theproposed resolution is predicated upon thepurpose of complying "withdecisions of theUnited States Supreme Court which require that trustees should be elected in proportion topopulation."

Avery v.Midland County, 394U.S. 474 (1968)applied the oneman, one-vote principle to county governments inTexas. The holding was restricted, however, to the following, (P.485)

"Ourdecision today isonly that the Constitution imposes one ground rule for the development of arrangements of local government: a requirement that units with general governmental powers over an entire geographic area not be apportioned among single-member districts of substantially unequal population." Hadley v. Junior College District,,-3.97 U.S. 50, 252 L.Ed.Zd 45, 90 S.Ct. 791 (1970)holds that a\SuniorCollege District is a "unit with general governmental powers", and that itmeets the criterion set out inAvery. However, neither of these cases stands for theproposition that at-large elections are unconstitutional per se.

Whitcomb v.Chavis, 403U.S. 124, 29L.Ed.Zd 563 (1970)holds thatmulti-member districts arenot inherently invidious orviolative of equal protection. At-large elections arenot, per se, unconstitutional, but the test iswhether ornot there is an invidious discrimination against aminority group. Dusch v. Davis,,. 387U.S. 112, 87 S.Ct. 1554 (1967).
In the absence of a finding that there exists an invidious discrimination against someminority group in at-large elections of Trustees~to the,Board of theKilgore Junior College District--in a

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direct attack on the constitutionality of Section 130.082(f) of the Texas Education Code--the statute iscontrolling.

Section 130.082 is captioned, "Governing board of junior college of other than independent school district." Section 130.082(h) reads as follows: "Notwithstanding anything in this code to the contrary, theprovisions of all or anypart of the laws of this state in effect immediately prior to the effective date of this act and relating to the name of any junior college district or the name of its governing board, or to the number ofmembers of its governing board, or the procedures and times of electing or choosing said members, shall remain in effect under the following conditions. If, at any time before the effectivedate of this act (butnot thereafter), the governing board of any junior college district shall specify by resolution or order theparticular provisions of the aforesaid laws applicable to it which itdesires to remain ineffect, then such particular provisions shall continue to apply to saidboard and its district: provided that at any time thereafter the governing board may make this section in its entirety applicable to it and its district by appropriate resolution or order, and thereby permanently cancel the effect of the aforesaid particular provisions of other laws. All resolutions and orders permitted by this section shall be filed immediately with theCoordinating Board, Texas College and University System." Prior to September 1, 1969, the Board of Trustees~of Kilgore Junior College elected to avail itself of this option and to retain thenumber of trustees and themanner of their selection on its Board of Trustees in accordance with itsprevious operations. The Board of Trustees consisted of nine members andhas continued tooperate with ninemembers byvirtue of the Board's action.

Section 130.082(f), in its relevant portion reads ,asfollows:

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"Members of aboard shall be elected at large from each junior college district at regular elections tobe called andheld by the board for suchpurpose, at the expense of the district, on the first Saturday inApril, in each even-numbered year. . . ." Theprecise question forour decision may thusbe restated: Do theprovisions of Subdivision (h),supra, which authorize board members tobe selected in amanner different from theprovisions of theAct, empower theboard tomake additional changes after the effective date of theAct, September 1, 1969?

Itappears that the legislative intent was to create uniformity among the various junior college districts of the same class. Although theLegislature saw fit topermit an existing Junior College District to continue to operate underpreexisting laws,we donot perceive that itwas the intention of the Legislature to allow orpermit any given Junior College District to change itsmode of operation after September 1, 1969, except in strict compliance with the terms of the Education Code. **It** is our opinion that itwas the intention of theLegislature that Junior College **Districts,** after September 1, 1969,,should operate as they were operating on that date or in accordance with the **terms** of the Education Code, andno other.

Stated another way, it isour opinion thatwhen the Trustees of the Kilgore Junior College District elected to continue operating as they had before the adoption of the Education Code, their method of operation thereby became frozen and could not thereafter be changed, except they could elect to abandon alldeviations from theparticular provisions of the Education Code and operate in toto under that Code.

We conclude under the factspresented that the Board of Trustees ofKilgore Junior College does not have the authority at this **time to**  provide for interior redistricting of the district in contravention of the requirement of at-large elections of Trustees pursuant,to Article 130,082(f), Texas Education Code.
SUMMARY The Board of Trustees under the circumstances and facts presented does not have authority to provide for internal redistricting of the Kilgore

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Hon. Bevington Reed, page 5 (M-1081)

Junior College District at this time in contravention ofArticle 130.082(f) of the Texas Education Code.

Prepared by Robert Gauss Assistant Attorney General
APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman W. E.Allen, Co-Chairman John Richards Lewis Jones Jack Goodman William Craig
SAMUEL D.MCDANIEL Staff Legal Assistant
ALFRED WALKER Executive Assistant
NOLA WHITE FirstAssistant

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