@ffice of tfp IZIttotnep 6lSeneral 

&date of Qtxas 

April 25, 1991 

Honorable Alvin Roy Granoff 

Chairman 

Committee on State, Federal and 

International Relations 

Texas House of Representatives 

P. 0. Box 2910 

Austin, Texas 78768-2910 

Opinion No. DM-20 

Re: Authority of the Coordinating 

Board to mandate training requirements for locally elected community 

and junior college trustees, and related 

questions (RQ-2171) 

Dear Representative Granoffz 

You ask two questions in regard to junior college’ districts. Your first 

question is whether the Texas Higher Education Coordinating Board’ may establish 

training requirements for trustees of junior college districts. 

The authority of the Coordinating Board in regard to junior colleges is set 

out in section 130.001 of the Education Code, which provides that the Coordinating 

Board “shall exercise 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 of public junior 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 is reserved and retained locally in each of the respective 

public junior college districts or in the governing boards of such 

junior colleges as provided in the laws applicable. 

‘The term “junior college’ will be used to designate entities known either as junior 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 5 61.0X 

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Honorable Alvin Roy Granoff - Page 2 (D&l-20) 

The statement in section 130.001 that 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 130.002 that all authority not 

granted to the Coordinating Board or the Central Education Agency is reserved to 

the junior college districts. See generally Attorney General Opinious M-199 (1968); 

WW-868 (1960). Regardless of how broad the authority of the Coordinating Board 

is in regard to the operation of junior 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 of junior college districts to seek and hold 

office are set by statute. Educ. Code 3 130.082; Elec. Code Q 141.001. To interpret 

the Coordinating Board’s authority over junior 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 in that manner. 

In Dick-son v. 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 add to 

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 1940 this 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 of the popular vote is elected and is eligible to take the 

oath of office and serve as county treasurer. 

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Honorable Alvin Roy Granoff - Page 3 (DM-20 1 

Such being the case, the disability of blindness does not in 

any way interfere with the person elected from taking the oath 

of office 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 3 23.33 (State Board of Education may 

set training requirements for school board members);” Gov’t Code 3 27.005 (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) of the Government 

Code, which includes among the list of persons authorized to request opinions “a 

regent or trustee of a state educational institution.” We conclude that junior college 

districts are not state educational institutions for purposes of section 402.042(b)(6)! 

3Seetion l30.084 of the Education Code provides that the board of trustees of a junior college 

district shag be governed by the general law governing 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 public junior 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. But see Educ. Code g 11.24(b) (role of State Board of 

Education in regard to technical-vocational programs, including those at public junior colleges). 

“You also suggest that the legislature must have used the term ‘trustees” in referencc to junior 

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 of junior college districts. See Acts 

1929,41st Leg., eh. 290, at 648. Therefore, it is clear that the legislature did not USC the term “trustees” 

with junior college districts in mind. 

p. 92 
Honorable Alvin Roy Granoff - Page 4 (DM-2 0 1 

The substance of section 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 in part: 

I,I]n addition to the duties now or that may hereafter, be 

imposed upon the Attorney General by law, he shall, at the 

request of the Governor or the heads of the departments of the 

State Government, including the heads and boards of penal and 

eleemosynary institution, and all other State boards, regents, 

trustees of the 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 of the 1913 statute, that 

difference stems from the 1987 enactment of title 4 of the Government Code, which 

was a nonsubstantive revision. Acts 1987, 70th Leg., ch. 147, 0 7; 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 was intended to be nonsubstantive, the 

former statute will control. Johnson v. Cify of Fan Worrh, 774 S.W.2d 653 (Tex. 

1989). Therefore, it is appropriate to look to the language of the 1913 enactment 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 of the state. See gene&y Attorney General 

Opinion JM-1005 (1989) (entity may be “state” body for some purposes and not 

others). 

In San Antonio Indep. Sclrool Dist. v. State, 173 S.W. 525 (Tex. Civ. App.--San 

Antonio 1915, writ ref d), the issue was the scope of article XVI, section 30% of the 

Texas Constitution. As part of its analysis, the court considered the meaning of the 

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 of the state.” Id. at 526. Accord 

p. 93 
Honorable Alvin Roy Granoff - Page 5 (DM-2 0 1 

Lower Colorado River Auth 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. School Dirt, 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 

River Auth. 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 of article 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 

genemlly Love v. Ciry of Dallas, 40 S.W.2d 20,26-27 (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 parte Preston, 

161 S.W. 115 (Tex. Crim. App. 1913) (designation “state officer” can be limited to 

officer whose jurisdiction 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 is limited to a particular area of the state); Orndoflv. State, 108 S.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, of the 

Texas Constitution); see ako Tex. Const. art. IV, 3 22 (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 “local governmental 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 is bolstered by the fact that in 1977 the 

legislature added chairmen of the governing board of river authorities to the list of persons authorized 

to request attorney general opinions. If heads of any governmental body created under the laws of the 

state, regardless of their jurisdiction, were authorized to request opinions, adding river authorities to 

the lists of authorized requesters would have been a pointless act. 

p. 94 
Honorable Alvin Roy Granoff - Page 6 ( oM-2o ) 

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 

of junior college districts is limited to property within the district. Educ. Code 

9 130.121. Junior college districts may exempt residents of the 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 that junior college districts are 

part of local public school system). Therefore. a junior college district is not 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 of junior college districts. 

A junior 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 of Texas 

WILL PRYOR 

First Assistant Attorney General 

MARY KELLER 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY (Ret.) 

Special Assistant Attorney General 

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Honorable Alvin Roy Granoff - Page 7 (DM-20 1 

RENEL4 HICKS 

Special Assistant Attorney General 

MADELEINE B. JOHNSON 

Chair, Opinion Committee 

Prepared by Sarah Woelk 

Assistant Attorney General 

p. 96