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April 25, 1991

Honorable Alvin Roy Granoff Chairman Committee on State, Federal and International Relations Texas House ofRepresentatives P.0. Box2910 Austin, Texas 78768-2910 Opinion No. DM-20

Re: Authority of the Coordinating Board to mandate training requirements for locally elected community andjunior college trustees, and related questions (RQ-2171)

Dear Representative Granoffz

You ask two questions in regard to junior college’ districts. Your first question iswhether the Texas Higher Education Coordinating Board’ may establish training requirements for trustees ofjunior college districts.
The authority of the Coordinating Board in regard to junior colleges is set out in section 130.001ofthe Education Code, whichprovides that the Coordinating Board “shallexercise general control of the public junior colleges of Texas.” Educ. Code $130.001(a). Subsection (b)(3) provides that the Coordinating Board shall

“adopt standards for the operation ofpublicjunior colleges and prescribe the rules and regulations for such colleges.” Section 130.002,however, provides as follows:

All authority not vested by this chapter or by other laws of the state in the coordinating board or in the Central Education Agency isreserved and retained locally in each ofthe respective publicjunior college districts or in the governing boards of such junior colleges asprovided in the lawsapplicable.

‘The term “juniorcollege’ will be used to designate entities known either asjunior colleges or community colleges. See Educ. Code 0 130.005 (junior colleges may be redesignated as community colleges).*Statutory references to the Coordinating Board, Texas College and University System, arc references to the Texas Higher Education Coordinating Board. Educ. Code 561.0X

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The statement in section 130.001that the Coordinating Board has “general control” over junior colleges suggests broader authority on the part of the Coordinating Board than does the statement in section 130.002that all authority not granted to the Coordinating Board or the Central Education Agency is reserved to thejunior college districts. SeegenerallyAttorney General Opinious M-199 (1968); WW-868 (1960). Regardless ofhowbroad the authority ofthe Coordinating Board isin regard to the operation ofjunior college districts, however, we do not think that authority to operate the district includes authority to set educational requirements for trustees.
The qualifications for trustees ofjunior college districts to seek and hold office are set by statute. Educ. Code 3 130.082;Elec. Code Q141.001. To interpret the Coordinating Board’s authority overjunior college districts to include authority to establish educational requirements for individual trustees would allow a state agency to add to those statutory qualifications by rule. The cases and opinions discussed below support the proposition that the qualifications of an elected official to seek or hold office cannot be increased or decreased inthat manner.
In Dick-sonv. Strickland, 265 S.W. 1012 (Tex. 1924), the court considered whether the legislature could place a local residency requirement on a candidate for the office of governor. The court held that when the constitution sets out the qualifications for an office, it is not within legislature’s~power to change or addto those qualifications. Similarly, in Brown v. Meek, 96 S.W.2d 839, 842 (Tex. Civ. App.--San Antonio 1936,writ dism’d), the court held that a commissioners court could not add to or take away from the statutory qualifications for the office of constable. Also, in 1940this office issued an opinion in response tc the question of whether a blind person could take the oath.of office and act as Navarro County Treasurer. The opinion stated:

We have thoroughly examined the Texas statutes and fail to find any article referring to the qualifications of a county treasurer. The county treasurer is elected by the popular vote of the taxpaying citizens of the county; and in the absence of specified qualifications for such officer, anyone who receives a majority ofthe popular vote is elected and is eligible to take the oath ofoffice and serve as county treasurer.

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Such being the case, the disability of blindness does not in any way interfere with the person elected from taking the oath ofoffice and acting as county treasurer. Attorney General Opinion O-2910 (1940); see also Attorney General Opinions H1120(1978) (holding that legislature may impose education requirement for county tax assessor-collector where the constitution imposes no qualification); H-969 (1977) (holding that county, as opposed to home-rule city, could~ not require officials to file financial disclosure statements); M-728 (1970) (nepotism law does not render Texas Supreme Court appointee ineligible because appointee’s son is member of legislature; legislature may not add to or alter eligibility qualifications prescribed by constitution). It follows from those cases and opinions that an individual who satisfies the statutory requirements and who is elected to the office of trustee may serve. Thus, absent specific statutory authority, the Coordinating Board may not, by rule, condition service as a trustee on the satisfaction of an educational requirement. See Educ. Code 323.33 (State Board of Education may set training requirements for school board members);” Gov’t Code 327.005(justices of the peace may be removed for failure to complete continuing education requirements).

Your second question is whether a junior college district is authorized to request an attorney general opinion under section 402.042(b)(6) ofthe Government Code, which includes among the list of persons authorized to request opinions “a regent or trustee of a state educational institution.” We conclude thatjunior college districts are not state educational institutions forpurposes ofsection 402.042(b)(6)!

3Seetion l30.084 of the Education Code provides that the board of trustees of ajunior college district shag be governed by the general lawgoverning the establishment, management, and control of independent school districts “insofar as the general law is applicable.” Because the State Board of Education dots not implement policy for publicjunior colleges, as it does for the public school system.
see Bduc Code g 11.24(a), we do not think that section 23.33 of the Education Code could be considered applicable to public college districts. Butsee Educ. Code g 11.24(b) (role of State Board of Education in regard to technical-vocational programs,including those atpublicjunior colleges).

“You also suggest that the legislature must have used the term ‘trustees” in referencc tojunior college districts. In response to that suggestion, WC note that *trustees of State educational institutions”
were fust authorized to request attorney general opinions in 1913. Ads 19W, 33d Leg., eh. 26, at 48. At that time there were no statutes creating or authorizing creation ofjunior college districts. See Acts 1929,41st Leg., eh. 290, at648. Therefore, it is clear that the legislature did not USC the term “trustees” withjunior college districts in mind.

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The substance ofsection 402.042(b)(6) was adopted in 1913. Acts 1913,33d Leg., ch. 26, at 48. As adopted in 1913,the provision regarding attorney general opinions stated inpart:

I,I]naddition to the duties now or that may hereafter, be imposed upon the Attorney General by law, he shall, at the request ofthe Governor or the heads ofthe departments of the State Government, including the heads and boards ofpenal and eleemosynary institution, and all other State boards, regents, trustees ofthe State educational institutions, and committees of either branch of the Legislature, give them advice in writing upon any question touching the public interest, or concerning their official duties.

Acts 1913,33d Leg., ch. 26, at 48. Although the wording of section 402.042 of the Government Code is noticeably different from the language ofthe 1913statute, that difference stems from the 1987enactment oftitle 4 ofthe Government Code, which
was a nonsubstantive revision. Acts 1987,70th Leg., ch. 147,07; see also V.T.C.S. art. 4399 (1925) (making minor and nonsubstantive changes to article 4399, V.T.C.S., the statute regarding attorney general opinions). If there is a conflict between a former statute and a revision that wasintended to be nonsubstantive, the former statute will control. Johnson v. Cifyof Fan Worrh,774 S.W.2d 653 (Tex. 1989). Therefore, it is appropriate to look to the language ofthe 1913enactment in defining “state educational institution” within the present statute. Although the scope of the word “state” varies according to context, case law supports the conclusion that the language of the 1913 enactment refers to departments whose jurisdiction is statewide. Therefore, the phrase “state educational institution” in the current statute regarding attorney general opinions does not include entities that
serve only a limited geographical area ofthe state. Seegene&y Attorney General Opinion JM-1005 (1989) (entity may be “state” body for some purposes and not others).

In SanAntonioIndep. SclroolDist.v.State, 173S.W.525 (Tex. Civ.App.--San Antonio 1915,writ ref d), the issue wasthe scope of article XVI, section 30%ofthe Texas Constitution. As part of its analysis, the court considered the meaning ofthe phrase “the board of regents of the state university and boards of trustees or managers of the educational, eleemosynary and penal institutions of the state.” In regard to that language, the court stated, ‘The boards enumerated in the Constitution are clearly all state boards, or boards ofthe state.” Id. at 526. Accord

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Lower Colorado RiverAuth v. McGraw, 83 S.W.2d 629, 634 (Tex. 1935). The opinion then determined that independent school districts were not “state boards” for purposes of article XVI, section 30a San Ayonio Indep. SchoolDirt, supm, at 538. In reaching that conclusion, the court noted that the school board “is responsible to the electors in such school district alone.” Id; c$ Lower Colomdo RiverAuth. v.McGmw, supm, at 636 (Lower Colorado River Authority, which has “many duties that are coextensive with the limits of the state” is a state. board for purposes ofarticle XVI, I&? 30a).S
The language in the statute regarding attorney general opinions is quite similar to the language of article XVI, section 30a, and, we think, just as clearly excludes bodies such as school districts that serve only a portion of the state. See genemllyLovev. CiryofDallas,40 S.W.2d20,26-27 (Tex. 1931) (school districts are

“state agencies” inasmuch as they administer the state system of public schools and derive their powers by delegation from the state, but they are local entities inasmuch
as they are for the benefit of the public within their boundaries); Ex partePreston, 161 S.W. 115 (Tex. Crim. App. 1913) (designation “state officer” can be limited to officer whosejurisdiction is coextensive with the state or it can include any officer who receives his authority under the laws of the state, even if the officer’s jurisdiction islimited to a particular area ofthe state); Orndoflv. State, 108S.W.2d 206 (Tex. Civ. App.-El Paso 1937,writ refd) (county commissioners are officers

“under the Government of the State” even if they may not be officers “of the Government of the State”); Attorney General Opinion M-1177 (1972) (school employees are not “state”employees for purposes of article XVI, section 40, ofthe Texas Constitution); see ako Tex. Const. art. IV, 322 (directing attorney general to give legal advice to “Governor and other executive officers”upon request).
Junior colleges, like independent school districts, serve only a limited area of the state. Section 130.0011 of the Education Code, which was added in 1987,

sAuthoritks have differed in regard to whether river authorities are state or local bodies for purposes of different constitutional and statutory provisions. See Attorney General Opinion H-10 (1973) (iplicitly fiiding that river authority was “localgovernmental district”for purposes of article XVI, section 14); see genemf&Attorney General Opinion JM-1005 (1989) (river authority is not state agency for purposes of representation by attorney general). Our conclusion that “departments of the State Government” does not include local governmental bodies isbolstered by the fact that in 1977 the legislature added chairmen of the governing board of riverauthorities to the list of persons authorized to request attorney general opinions. Ifheads of any governmental body created under the laws of the state, regardless of theirjurisdiction, were authorized to request opinions, adding river authorities to the lists of authorized requesters would have been apointless act.

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provides that Texas public junior colleges “shall be two-year institutions primarily serving their local taxing districts and service areas in Texas.” The taxing authority ofjunior college districts is limited to property within the district. Educ. Code 9 130.121. Junior college districts may exempt residents ofthe district from payment of tuition. Id 9 130.085. Junior college districts do receive state funds, id. 4 13d.003,and are subject to supervision by the Coordinating Board, a state agency. Id. 4 130.001. These features, however, do not give them statewide responsibility and therefore do not make them “state” institutions any more than state funding and supervision by the Central Education Agency make school districts state institutions. Educ. Code 9 11.02(authority of Central Education Agency in regard to school districts); id. ch. 16 (Foundation School Program); see Attorney General Opinions M-199 (1968); W-868 (1960) (concluding thatjunior college districts are part oflocal public school system). Therefore. ajunior college district isnot a “state educational institution” for purposes of section 402.042(b)(6), and its board of trustees is not authorized to request attorney general opinions.


### SUMMARY
The Higher Education Coordinating Board may not by rule set training requirements for trustees ofjunior college districts. Ajunior college district is not authorized to request an attorney general opinion under section 402.042(b)(6) of the Government Code. Very truly yours,

DAN MORALES Attorney General ofTexas

WILL PRYOR First Assistant Attorney General

MARY KELLER Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret.) Special Assistant Attorney General

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RENEL4HICKS Special Assistant Attorney General
MADELEINE B.JOHNSON Chair, Opinion Committee Prepared by Sarah Woelk Assistant Attorney General

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