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 districtagreements (RQ-0609-GA)

You ask aboutthe operation ofsection 11.168 ofthe Texas Education Code, whichprohibits certain school districtagreements, withrespectto an agreemententeredinto beforethe 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 ofmaterials 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 ActofMay 27, 2005, 79thLeg., 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

... districtresources will continue underthe terms ofthe agreementafterthe effective date ofSection 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 ofan 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) (onfile withthe OpinionCommittee, also available athttp://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 'tof Protective & 

### RegulatoryServs. v. 

### Mega ChildCare., Inc., 145 S.W.3d 170, 176 (Tex. 2004)). The Code ConstructionActprovides that "[a] statute is presumedto be prospective in its operationunless expresslymade retrospective." TEX. GOV'TCODEANN. § 311.022 (Vernon 2005). Andthe Supreme Court ofTexas has statedthat "[s]tatutes are only applied retroactively ifthe statutory language indicates that the Legislature intendedthatthe statute be retroactive." 

### In re MC.C., 187 S.W.3dat 384 (citing

### Merch. FastMotor Lines, Inc. 

### v. R.R. Comm 'n, 573 S.W.2d 502,504 (Tex. 1978), 

### State 

### v. Humble Oil & 

### RefCo., 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 CODEANN. § 311.022 (Vernon 2005) (stating that statute is presumedprospective unless expressly made retrospective); 

### Subaru of Am., 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 of Galveston, 4 Tex. 470, 475 (1849)). Nordoes the statutorylanguage 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 retroactivelyonlyif the languageindicates suchlegislativeintent). The statuteprovidesthata 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 ofa 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 notunderstand you to ask aboutthe 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. CfHarlingen Indep. Sch. Dist., 48 S.W.2d at 986 (statingthatcourtmustlookatpertinent statutes to determinevalidityofschool districtconstructioncontractpayable from bond proceeds). You do not reference or discuss the statutes authorizing the type ofagreementyou 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, ifthe 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 ofthe goods made before the effective date ofstatute in analyzing retroactive application ofstatute).

### The Honorable Homero Ramirez

- Page 3 (GA-0596)

immediately ifit receives a vote oftwo-thirds ofall the members

.... "); 

### cfIn 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 conclusionthatthe legislative intentwas thatthe 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 enactedpronouncementonthe 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 aparticular agreement, and we do not determine whether section 11.168 would apply to aparticular agreement that may be described as being entered into before the statute's effective date. 

### See, e.g., LamarLife 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 ofa contract and anovation ofsuch acontract); 

### 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 ofthe statute would impair a school district's vested interestunder an agreement entered into before the effective date ofthe statute. 

### See RequestLetter, 

### supra note 1, at 2; 

### see also Subaru of Am., 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 avestedrightto 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 districtboard 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 intendedthe statuteto applyretroactively, itdoes notapplyto suchan 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