April 1, 1974
The Honorable J.W. Edgar Commissioner of Education Texas Education Agency 201E.” Eleventh Street Austin, Texas 78701 Dear Dr. Edgar: Opinion No. H- 266 Re: Whether ISD once having provided for a runoff election, must do so in each election thereafter

In 1955the Texas Legislature adopted Article 2775s-1, Vernon’s Texas Civil Statutea, authorizing the trustees of independent school districts to order that all candidatea for school trurtee be voted on by position and be designated on the ballot according to the number ofthe position which they sought. It further provided:

“Once the Board of Truateen of an independent school district shall have adopted the foregoing procedure for electiopr, said Board of Trusteesbi their auccee- #ors may not rescind the action which adopted the foregoing procedure. ” Pursuant to this legislation, the Board of Trustees of the Abilene Independent School District resolved that its trustees would be 80elected. Election wao on the basis of the winning candidate having a plurality of the votes. There were no runoff elections. In 1969, with the adoption of the Education Code, V. T. C.S., Article 2775a-1 became $23. I1of the Code. The language ofArticle 27758-l which we have quoted became Subsection (0 of 523.11:

‘l(f) Once the board oftrustees ofan independent school district has adopted the provisions of this section, neither the board of truatees nor their Buccee#or# may rescind the action. ”

p. 1248The Honorable ‘i. W. Edgar, page 2 (H-266)

In 1971byActs 1971, 62nd Leg., ch. 760, p. 2410, effective August 30, 1971, $23.11 ~8s amended by adding to it Subsection (h):

“(h) The board msy also provide by resolution, at least 60days prior to the election, th8t if no c8ndid8te for 8position receives 8majority ofthe votes cast for that position the bo8rd will order 8 runoff election ,tobe held not more th8n 30d8ya 8fter the date of the first election. At that runoff~election, the n8mea of the two persons receiving the higheot number, ofvotes for that position in the first election~sh811 be pl8ced on the bbllot. ” Pursubnt to this authority, the Borrd of Trustees of the Abilene District, in 1972sdopted the following resolution:

“BE IT FURTHER RESOLVED, that if in the election herein cslled,for April. 1, 1972, no:cbndidate for :8 position on the.ballot ah811receive 8mrjor,ity of the votes cart’for’.auch position, the Bosrd of Educ8tio,n will order 8 runoff election to be held not more thrn thirty days after the dste of the first election, and th8t the names of the two perrons receiving the highest number ofvotes for that position in the first election shall be plrced on the brllot for the runoff election.” There has been no rimilbr resolution adopted with reference to the election to be held April 6, 1974. ,Youhsve asked:

“Under the submitted facts. leg8lly must 8runoff election be called in the April 1974 trustee election * ofthe Abilene school district, should 8 candidrte not receive 8majority vote in 8numbered position up for election.

“St8ted 8nother way. where the district h8s **once** provided for 8 runoff election - even though limited

p. 1249The Honorbble J.W. Edgar, p8ge 3 (H-266)
by ite resolution to 8p8rticul.r year - must it there8fter hold runoff elections in plur8lity vote oituationr. ” Our function ib to attempt to determine the intent ofthe Legirlrture. 53 Tex. Jur. Zd, StatUtee, $125; p. 180et seq. Subsection (f) refere to “the provisions of thin section.” “This aection” is §23.Il. The 1971Act rdopting Subsection (h) epecificrlly m8de it 8part of 323.11. Therefore,‘re of the 1972adoption of the resolution providing for 8 runoff by the Abilene Dietrict. Subsection (h) w8e one of the “proviaione ofthis section” which, once bdopted, there8fter could not be rescinded byaction of the trueteer. It is our opinion, therefore, thrt, once h8ving adopted the provirionr of Subrection (h), even though itr reeolution referred epecificrlly to the 1972 election, the Borrd of Trurteee ofthe Abilene Independent School District w8e withdut 8uthority to ch8ngc the rule 8nd that, in the 8brence of 8 court decision or rhtutory chmge, the elections of trueteen for’th8t dirtrict murt be determined in runoff eleciione if there is no m8jority on the firae b8llot. SUMWRY Once 8 echool district,, rubjstt to the provisionr ofArticle 27758-1, V. T. C.S., or 023.11, Educrtion Code, V. T. C.S., h8e 8dopted 8 runoff 8e 8merne of determining the election of itr trusteea. all ouch elections there8fter will be dttermined in that manner. ’

DAVID KENDALL, Ch8irm8n Opinion Committee p. 1250