ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

January 17, 2008

The Honorable Homero Ramirez

Webb County Attorney

1110 Washington Street, Suite 301

Laredo, Texas 78042

Dear Mr. Ramirez:

Opinion No. GA-0596

Re: Operation of Texas Education Code section

11.168 prohibiting certain school district agreements

(RQ-0609-GA)

You ask about the operation ofsection 11.168 ofthe Texas Education Code, which prohibits

certain school district agreements, with respect to an agreement entered into before the effective date

ofthe statute.! Section 11.168, in its entirety, provides as follows:

The board of trustees of a school district may not enter into an

agreement authorizing the use ofschool district employees, property,

or resources for the provision of materials or labor for the design,

construction, or renovation of improvements to real property not

owned or leased by the district.

TEX. EDUC. CODE ANN. § 11.168 (Vernon 2006). Section 11.168 became effective June 18, 2005.

See Act ofMay 27, 2005, 79th Leg., R.S., ch. 979,2005 Tex. Gen. Laws 3286. You specifically ask

whether section 11.168

applies retrospectively to an agreement entered before the effective

date of [the statute], where the agreement calls for the use ofschool

district resources for improvements to real property not owned or

leased by the ... district, and where such use of... district resources

will continue under the terms ofthe agreement afterthe effective date

of Section 11.168[.]

Request Letter, supra note 1, at 1. You contend that because section 11.168 does not apply

retrospectively it does not prohibit and affect the validity of an agreement entered into before June

18, 2005. See id. at 2.

lSee Letter from Honorable Homero Ramirez, Webb County Attorney, to Honorable Greg Abbott, Attorney

General ofTexas, at 1 (July 24,2007) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us)

[hereinafter Request Letter].
The Honorable Homero Ramirez - Page 2 (GA-0596)

We address here only the legal question you raise: whether section 11.168 applies

retroactively to an agreement otherwise validly entered into before its effective date. 2 When

interpreting a statute, like a court, we must "ascertain and effectuate the Legislat[ure's] intent." In

re MC.C., 187 S.W.3d 383, 384 (Tex. 2006) (quoting Tex. Dep 't ofProtective & Regulatory Servs.

v. Mega ChildCare., Inc., 145 S.W.3d 170, 176 (Tex. 2004)). The Code Construction Act provides

that "[a] statute is presumed to be prospective in its operation unless expressly made retrospective."

TEX. GOV'TCODEANN. § 311.022 (Vernon 2005). And the Supreme Court ofTexas has stated that

"[s]tatutes are only applied retroactively if the statutory language indicates that the Legislature

intended that the statute be retroactive." In re MC.C., 187 S.W.3dat 384 (citing Merch. Fast Motor

Lines, Inc. v. R.R. Comm 'n, 573 S.W.2d 502,504 (Tex. 1978), State v. Humble Oil & Ref Co., 169

S.W.2d 707, 708-09 (Tex. 1943)).

Section 11.168 does not indicate an intention by the Legislature to make the statute

retroactive. See TEX. EDUC. CODE ANN. § 11.168 (Vernon 2006). The statute does not expressly

state that it applies to agreements entered into before its adoption. See id.; see also TEX. GOV'T

CODE ANN. § 311.022 (Vernon 2005) (stating that statute is presumed prospective unless expressly

made retrospective); Subaru ofAm., Inc. v. DavidMcDavidNissan, Inc., 84 S.W.3d 212,219 (Tex.

2002) ("A retroactive law literally means a law that acts on things which are past.") (citing

Decordova v. City ofGalveston, 4 Tex. 470, 475 (1849)). Nor does the statutory language otherwise

indicate that the Legislature intended retroactive operation. See TEX. EDUC. CODE ANN. § 11.168

(Vernon 2006); see also In re MC.C., 187 S.W.3d at 384-85 (stating that statutes are applied

retroactively only ifthe language indicates such legislative intent). The statute providesthat a school

district board oftrustees "may not enter into" an agreement described by the statute. TEX. EDUC.

CODE ANN. § 11.168 (Vernon 2006). It does not attempt to reach past actions or decisions of a

school board oftrustees to contract with a party. Cf TEX. GOV'T CODE ANN. § 311.012 (Vernon

2005) ("Words in the present tense include the future tense.").

The only legislatively adopted language regarding the operation ofthe statute-"effective

immediately"-also does not support an intent that the statute apply retroactively. See Act ofMay

27, 2005, 79th Leg., R.S., ch. 979, § 2, 2005 Tex. Gen. Laws 3286 ("This Act takes effect

2We do not understand you to ask about the underlying validity ofthe type ofagreement at issue, and thus, we

do not address that question. See Request Letter, supra note 1, at 1-2. A school district possesses only the

powers-including the power to contract with reference to a particular purpose-expressly conferred on it by law or

necessarily implied from the powers so conferred. Harlingen Indep. Sch. Dist. v. Page, 48 S.W.2d 983, 986 (Tex.

Comm'n App. 1932, judgm't adopted); see also Tex. Roofing Co. v. Whiteside, 385 S.W.2d 699, 701 (Tex. Civ.

App.-Amarillo 1964, writ ref'd n.r.e.). An agreement's validity necessarily depends on whether the agreement is

authorized by law and whether its terms conform to the applicable law. Cf Harlingen Indep. Sch. Dist., 48 S.W.2d at

986 (stating that courtmust look at pertinentstatutesto determine validity ofschool district construction contractpayable

from bond proceeds). You do not reference or discuss the statutes authorizing the type ofagreement you ask about, its

terms, or any other facts about the agreement. See Request Letter, supra note 1, at 1-2; see also Tex. Att'y Gen. Ope

Nos. GA-O 176 (2004) at 2 (stating that attorney general opinions may "address a public entity's authority to agree to a

particular contract term, if the question can be answered as a matter of law," but they do not generally construe '

contracts); JM-1218 (1990) at 1-2 (in absence offactual information, assuming that contract for the purchase ofgoods

was validly entered into and delivery of the goods made before the effective date of statute in analyzing retroactive

application ofstatute).
The Honorable Homero Ramirez - Page 3 (GA-0596)

immediately if it receives a vote of two-thirds of all the members ...."); cf In re MC.C., 187

S.W.3d at 385 ("The effective date language merely statesthe amending date and then defines the

types of support to which [the amendment] applies without any suggestion of retroactive

application."). That language, in fact, leads to the conclusion that the legislative intent was that the

statutory prohibition apply prospectively. See Houston Indep. Sch. Dist. v. Houston Chronicle

Publ'g Co., 798 S.W.2d 580, 587 (Tex. App.-Houston [1st Dist.] 1990, writ denied). ("The

legislature's sole enacted pronouncement on the effective date ofthe bill is the emergency 'effective

immediately' clause; ifthe legislature believed the provision could be applied retroactively, there

would be no reason to make it effective immediately.").

In answer to your question, we conclude that section 11.168 does not apply retroactively to

an agreement entered into before the effective date ofthe statute. You do not ask about a particular

agreement, and we do not determine whether section 11.168 would apply to a particular agreement

that may be described as being entered into before the statute's effective date. See, e.g., Lamar Life

Ins. Co. v. Jordan, 163 S.W.2d 215, 217 (Tex. Civ. App.-Waco 1942, writ refd w.o.m.)

(distinguishing between extension ofrights vested at inception of a contract and a novation ofsuch

a contract); GreenbeltElec. Coop., Inc. v. Johnson, 608 S.W.2d 320, 325 (Tex. Civ. App.-Amarillo

1980, no writ) (recognizing that under Texas law a contract modified by mutual consent is a new

contract); see also Tex. Att'y Gen. Ope No. GA-0302 (2005) at 2 (stating that "this office does not

review or construe contracts").

Because we conclude that section 11.168 does not apply retroactively, we need not address

your contention that retroactive application of the statute would impair a school district's vested

interest under an agreement entered into before the effective date ofthe statute. See Request Letter,

supra note 1, at 2; see also Subaru ofAm., Inc., 84 S.W.3d at 219 (stating that only retroactive

statutes that impair vested rights are constitutionally prohibited); In re MC.C., 187 S.W.3d at 385

(stating that because the court concluded thatstatutory amendment lowering interest rate on child

support arrearages applied prospectively, "we do not reach the issue ofwhether the beneficiary has

a vested right to the interest"); Price Pfister, Inc. v. Moore & Kimmey, Inc., 48 S.W.3d 341,353-54

(Tex. App.-Houston [14th Dist.] 2001, pet. denied) (considering whether retroactive application

ofstatute altered company's vested rights under a contract to pay commission).
The Honorable Homero Ramirez - Page 4 (GA-0596)

SUMMARY

The general rule in Texas is that statutes apply prospectively

unless the statutory language indicates that the Legislature intended

the statute to apply retroactively. Texas Education Code section

11.168 prohibits a school district board oftrustees from entering into

an agreement authorizing the use of school district resources for

improvement of real property not owned or leased by the school

district. Because the statute does not indicate that the Legislature

intended the statute to apply retroactively, it does not apply to such an

agreement entered into before the effective date ofthe statute.

Very truly yours,

KENT C. SULLIVAN

First Assistant Attorney General

ANDREW WEBER

Deputy Attorney General for Legal Counsel

NANCY S. FULLER

Chair, Opinion Committee

Sheela Rai

Assistant Attorney General, Opinion Committee