JIM MATTOX

Attorney General

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An Equal OpportUnW Aftirmative Action Efvl~v~ 

# TheAttorney General ofTexas

.

November 29. 1984

Ronorable Bill IKey Chairman Public Education Ctmmittee Texas Houseof RelBresentatives Opinion No.JM-235
Re: Effect of section 23.024 (h) of the Education Code on school P. 0. Box2910 trustee’s termof office Austin, Texas 711769
Dear Representative Haley:
Youaskvhet’wr a school district trustee, elected to a six-year termin April, 19KI. is subject to having his termcut short by school boaFd action pursuant to section 23.024 of the Education Code. This statute, enacted :Ln1983, allows certain school districts to establish single-member districts for electing 70%or more of their trustees. Acts 1983, 68th Leg., ch. 316, Sl at 1687. Subsection (h) of section 23.024 provides:

At the first election at which someor all of the trustee:s are elected from trustee districts and after c!s.ch redistricting, all positions on the board s:lall be filled. Thetrustees then elected 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).
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, in a school dist:::lct ~wheretrustees hold six-year terms, in any one election year sometrustees will be upfor reelection, somewill have twoyears remaining of their six-year terms, and somewill have four years remaining t> serve. In the first regular election under section 23.13, 23.14, or 23.15, all trustee positions sre filled, and the trustees drawlots 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,” andthe trustees are to drawlots for terms of

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varying length. The changeover occurs at once, andunequal terms are necessary to reestablish the schemewhereby 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 andwould otherwise have tw3or four years to serve.
Youaskwhether a trustee elected to asix-year term prior to the effective date of article 23.024 of the Education Codemaybe deprived of his full term by board action under that provision. The legislature in enacting s-. m=I*tlon23.024 has clearly authorized the school board to take this action. SeeState v. Stanfield, 18S.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 WI thin 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. Pophami. Patiersvn, 51 S.W.2d 680 (Tex. 1932). In Tarrant Countyv. Ashmore, 635 S.Wrrd 417 (Tex. 1982) cert. denied, 459 U.S. 1038 (1982). the Texas SupclzmeCourt considered”thepurported rights of duly e&ted officehol&rs to complete their full terms of office.” 635 S.W.Zd at 418. TheTzirrant 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 whowere removed from office sought damages andother relief against the commissioners court, claiming anentitlement 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 17of the Texas Constitution or the due process clause of the Fifth and Fourteenth Amendmentsof the United States Constitution. It quoted from State ex rel. Maxwell v. Crumbauh. 63 S.W. 925, 9:!i (Tex. Civ. App. - SanAntonio 1901, writ Tiim+
Apublic 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. 1056Honorable Bill Hsl.ey- Psge :3 (JM-235)

in the constitut~lon and the laws enacted in conformity therawl~th. Moorev. Strickling (U.Va.) 146 ;he W.Va. 5151. ,33S.E. In

_. 274. case cited the - 50 L.R.A. 279. court in its opinion makes

. . . the following quotation: ‘It is impossible to cclt.ceive how, under our form of government, aperson can ownor 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,3nomerand a perversion of terms to say that an i,ccumbent owned an office or had anytitle to it.’
TheTexas SupremeCourt determined that

every public offj,ceholder remains in his position at the sufferance and for the benefit of the public, subject to removal fromoffice byedict of the ballot box at the time of the next election, or before that tj.meby 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 shownby its survey of authorities from other states. Anofficer mayhave 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, 306U.S. 535 (19m; Taylor v. Beckham, 178U.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 removedhis residence from his precinct).
Weconclude, based onJarrant Countyv. Ashmore, that the terms of incumbent school board membersmayconstitutionally be shortened pursuant to legislative aceion. 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 fromserving out a full term.

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SUMMARY
Section 23.024 of the Education Codeauthorizes certain school. districts to establish single-member d:lstricts for trustees. Under subsection 23.026(h) of the code, all trustees’ positions will birfilled 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,cserve out afull term.

Very ruly yours 

# sk

k -J I M -

MATTOX Attorney General of Texas
TOM GREEN First Assistant Attorney Goneral
DAVIDR. RICRARDS Executive Assistant Attorney General
RICKGILPIN Chairman, Opinion Committelr Prepared by SusanL. Garrison Assistant Attorney General
APPROVED: OPINIONCOMMITTEE
Rick Gilpin, Chairman Colin Carl SusanGarrison TonyGuillory JimHoellinger Jennifer Riggs

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