## KEN PAXTON ATTORNEY GENERAL OF TEXAS

February 3, 2016

The Honorable Larry Phillips OpinionNo. KP-0062 Chair, Committee on Homeland Security and Public Safety Texas House ofRepresentatives Post Office Box 2910 Austin, Texas 78768-2910
DearRepresentative Phillips: Re: Questions relating to the pos1t10n of Vice Chairman on the Maverick County Hospital District Board ofDirectors (RQ-0044-KP)

On behalfofthe Maverick County Hospital District ("District") you ask three questions concerning the District's governance. 1 You firstask our opinion onthe validity ofthe position of vice chair. Request Letter at 2. Assuming its validity, you then ask whether the vice chair automatically becomes the acting chairuponthe chair's resignation. Id. Finally, you ask whether the vice chair continues as the acting chair until the District's board ofdirectors appoints a new chair or untilthe expiration ofthe resigned chair's term. Id. at 3.
As background, youtell us thatthe chair ofthe Districtresignedfrom the board ofdirectors ("board"). See id. at 2. You state that at a subsequent board meeting, "a dispute arose among the Board members as to whether the Vice Chairperson should automatically move into the Chairperson position." Id. You inform us that "[a] director also disputed whether the Vice Chairpersonpositionwas valid sincethe District's enabling legislation, Chapter 1118 ofthe Texas Special District Code, did not specifically provide for the position of Vice Chairperson, even though the Bylaws authorize such a position." Id. With this background, we consider your questions.
The District is a hospital district created under the authority ofarticle IX, section 9 ofthe Texas Constitutionby special lawcodified at Special DistrictLocal Laws Code chapter 1118. See TEX. SPEC. DIST. CODE §§ 1118.001-.253, .002 (noting creation under article IX, section 9 and citingActofApr. 29, 1965, 59thLeg., R.S., ch. 172, § 1, 1965 Tex. Geri. Laws 360, 360); see also TEX. CONST. art. IX, § 9. Such a district may exercise only those powers that are "expressly delegated to it by the legislature, or which exist by clear and unquestioned implication." Tri-City Fresh Water SupplyDist. No. 2 v. Mann, 142 S.W.2d 945, 946 (Tex. 1940); see alsoJackson Cty. Hosp. Dist. v. Jackson Cty. Citizens for ContinuedHosp. Care, 669 S.W.2d 147, 154 (Tex. App.-

1 See Request Letter from Honorable Larry Phillips, Chair, House Comm. on Homeland Sec. & Pub. Safety, to Honorable Ken Paxton, Tex. Att'y Gen. at2-3 (Aug.14, 2015), https://www.texasattorneygeneral.gov/opinion/requestsfor-opinion-rqs ("Request Letter").The Honorable Larry Phillips

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Corpus Christi 1984, no writ). Implied powers are those that are "indispensable to

.... the accomplishment ofthe purposes" for which the special district is created. Tri-City Fresh Water Supply Dist. No. 2, 142 S.W.2d at 947.
Article IX, section 9 generally provides that the purpose ofa hospital district is to provide "medical andhospital care for its needy inhabitants." TEX. CONST. art. IX,§ 9; see also TEX. SPEC. DIST. CODE§ 1118.lOl(a)-(b) (providing that "district has the responsibility ofundertaking [and shall undertake] any measure, consistent with Section 9, Article IX,

... and this chapter, that the board determines is necessary to provide hospital and medical care to the district's needy residents"). Yet, article IX, section 9 is silent regarding the governance ofthe hospital districts created thereunder. See TEX. CONST. art. IX, § 9. Relevant to the District's governance, chapter 1118 ofthe Special DistrictLocal Laws Code**provi~es** thatthe District'sboard, "electedbydistrict voters," shall consist offive members and that the "board shall elect from among its members a ·president, a secretary, and a treasurer." TEX. SPEC. DIST. CODE§§ 1l18.051(a), .055. Because of the use ofthe word "shall," section 1118.055 imposes a mandatory requirement that the District elect apresident, secretary, andtreasurer. See id. § 1118.055; see also TEX. Gov'TCODE§ 311.016 ("'Shall' imposes a duty."). The silence of section 1118.055 regarding the office ofvice chair means only that the District is not required to elect a vice chair: It does not serve as a prohibition against the election ofa vice chair.
Section 1118.105 authorizes the District to adopt rules "for the efficient operation ofthe district." TEX. SPEC. DIST. CODE§ 1118.105(a); see also id. § 1118.101. This office has said that special districts and political subdivisions may adopt governance rules under such authority providedthat the rules are consistent with other applicable constitutional and statutory provisions. See Tex. Att'y Gen. Op. Nos. GA-0412 (2006) at 2 (stating that hospital district may adopt Robert's Rules of Order to govern its meetings), DM-228 (1993) at 3 (recognizing that a commissioners courtmay adoptreasonable rules that are consistentwithrelevant lawto govern its meetings). You tell us that pursuant to this authority the District has adopted bylaws to provide for the governance ofthe District, whichbylawsprovide that Robert's Rules ofOrder shall govern parliamentary procedure. See Request Letter at 5-6. The bylaws provide for the election ofa vice chair. See id. at 4; see also id., Appendix D § 5.1 (Bylaws, Board ofDirectors, Maverick Cty. Hosp. Dist.) (on file with the Op. Comm.). To the extent the position ofvice chair promotes efficient operation ofthe District by allowing for the continued governance ofthe board in the absence ofthe chair and thus serves the District's purpose ofproviding medical and hospital care for the needy inhabitants, providing for the office ofvice chairis withinthe scope ofthe District's impliedpowers. Moreover, arule adopted pursuantto section 1118.105 to provide for the election ofa vice chair differs from but does notconflict with section 1118.055, whichneitherrequires nor prohibitsthe positionofvice chair. See Tex. Att'y Gen. Op. No. GA-1079 (2014) at 3 (recognizing that an irreconcilable conflict involves a direct conflict such that "it is impossible to comply with bothprovisions atthe same time") (citingState v. Jackson, 370 S.W.2d 797, 800 (Tex. Civ. App.- Houston [1st Dist.] 1963), ajj"d, 376 S.W.2d 341 (Tex. 1964)); see also Tex. Att'y Gen. Op. No. GA-0369 (2005) at 4 ("Mere difference is insufficient to constitute an irreconcilable conflict."). Accordingly, a court would likely conclude that the position ofvice chair on the District's board is valid.The Honorable Larry Phillips

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Yourremainingquestions concerntherole and duties ofthe vice chairupontheresignation ofthe chair. Request Letter at 2-3. Chapter 1118 provides that directors serve staggered fouryear terms. TEX. SPEC. DIST. CODE § 1118.051(b). It also provides that the board shall elect its officers at the first meeting after each director's election. Id. § 1118.055. Thus, ifsome directors are elected by District voters in an election every two years, then the board shall elect its officers as frequently. But as chapter 1118 does not provide for the position ofvice chair, it does not expressly outline the role ofthe vice chair after the resignation ofthe chair. Thus, your remaining questions involve only the District's governance documents and are not questions determined purely by reference to Texas statutes or the constitution. The bylaws of a special district are analogousto the charterofa municipalityinthatthey arethe governing documentsforthedifferent entities. Andthis office typically does not construe municipal charters out ofdeference to the city official's authority to construe their own charter. Tex. Att'y Gen. Op. No. JC-0035 (1999) at 3. Accordingly, we do not address these questions and instead leave it to the District's board to determine the role and duties ofthe vice chair upon the resignation ofthe chair.The Honorable Larry Phillips

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### SUMMARY
A court would likely conclude that the position ofvice chair onthe board ofthe Maverick County Hospital District is valid.
Absent guidance from chapter 1118 ofthe Special District Local Laws Code, questionsregarding the role and duties ofthe vice chair upon the resignation ofthe chair are for the District's board to resolve.

CHARLES E. ROY First Assistant Attorney General
BRANTLEY STARR Deputy Attorney General for Legal Counsel
VIRGINIA 

### K. HOELSCHER Chair, Opinion Committee
CHARLOTTE M. HARPER Very truly yours,

# ~?~ KEN PAXTON Attorney General ofTexas

Assistant Attorney General, Opinion Committee