ATTORNEY GE&RAL OF TEXAS GREG ABBOTT

September 5,2006

Raymund A. Paredes, Ph.D. Commissioner of Higher Education Opinion No. GA-0452
Texas Higher Education Coordinating Board Post Office Box 12788 Austin, Texas 78711 Re: Annexation ofterritory by ajunior college district (RQ-0446-GA)

Dear Commissioner Paredes:
On behalf of Coastal Bend College, you ask our opinion regarding the authority of a governing board~ofajunior college district to order anannexation election under chapter 130, Texas Education Code.’ Specifically, you inquire about the operation of sections 130.065 and 130.068. See Request Letter, supra note 1,at 1.
Section 130.065 provides the requirements forthe annexation ofterritory by ajunior college district by election. See TEX.EDUC.CODE ANN. 5 130.065 (Vernon Supp. 2006). The governing board of ajunior college district is authorized to call an annexation election upon the “presentation ofapetition proposing the annexation ofterritory to the district.” 

### Id. S 130.065(a). The petition must adequately describe the territory proposed for annexation and “be signed by a number of registered voters in the territory equal to at least five percent of the registered voters in that territory.” 

### Id. $ 130,065(a)(l>(2). Section 130.065 also sets forth the procedures for conducting the election; procedures that include a public hearing, an informational service plan, the ballot language, and amajority vote. See 

### id. 5 130.065(b) (public hearing), (c) (service plan), (g) (ballot language), (h) (majority vote); see 

### also id. 5 130.065(d)-(f), (i)-(l) (additional procedures and requirements),.
Section 130.068 provides that a “governing board of a’junior college district may order an election onthe question ofestablishing expanded boundaries for thejunior college district.

. within [all or part ofI2 the district’s service area established by Subchapter J” in two instances. 

### Id. 5 130.068(ah(b). Those two instances occur:

‘SeeLetter from Raymund A.Panda, Ph.D., Commissioner ofHigher Education, Texas Higher Education Coordinating Board, to Honorable Greg Abbott, Attorney General of Texas, at 1 (Feb. 6, 2006) (on tile with the Opinion Committee, also available afhttp:llwww.oag.state.tx.us) [hereinafter Request Letter].

‘Subsection 130.068(a)relates totheexpansion ofthe juniqr college districtto “encompass alloftheterritory located withinthe district’s service area established by Subchapter J.” TEX.EDUC. CODE ANN.5 130.068(a) (Vernon Supp. 2006) (emphasis added). Subsection 130.068(b) pertains to the expansion of thejunior college district to “encompasspart ofthe territory located withinthedistrict’s service areaestablished by Subchapter J.” Id. $ 130.068(b) (emphasis added); see generally Tex. Att’y Gen. Op.No. GA-0314 (2005).Raymund A. Paredes, Ph.D. - Page 2 (GA-0452)

(a)

. .ifmore than 35 percent of the total number of students who enrolled inthejunior college district inthe most recent academic year resided outside of the existing junior college district[, or] (b) ifmore than 15percent ofthe high school graduates for each of the preceding five academic years in the territory proposed to be added to the district have enrolled in thejunior college district. 

### Id. Section 130.068 also provides that “[elxcept as otherwise provided by this section, Section 130.065 applies to an action taken under this section, including the provisions of Section 130.065 requiring apetition to be submitted before an election may be called.” 

### Id. 5 130.068(c). Coastal Bend College wants to know whether its governing board may call an annexation election without apetition when one of these alternative circumstances exist. See Request Letter, supva note 1, at l-2. Your question requires us to construe sections 130.065 and 130.068.
The cardinal rule of statutory construction isto ascertain the legislature’s intent and to give effect to that intent. 

### See UnionBankersIns. Co.v.Shelton, 889S.W.2d 278,280 (Tex. 1994). The plain language of the statute is the primary indication of legislative intent. 

### See Fitzgerald v. Advanced Spine Fixation Sys., 

### Inc., 996 S.W.2d 864, 865-66 (Tex. 1999). Where the intent is unclear from the literal language wemay consider aids to construction such asthe legislative history, the object to be obtained, and the consequences ofaparticular construction. 

### See UnionBunkersIns. Co., 889 S.W.2d at 280; see also TEX. GOV'T CODE ANN. 3 311.023 (Vernon 2005) (Code Construction Act). A statute isto be construed sothat itharmonizes with other law unless the statute clearly contains acontrary intention. See

### Blackv. Am.BankersIns. Co.,478S.W.2d 434,437 (Tex. 1972). But we will not apply the statutory language literally ifthe statute’s plain language would lead to absurd consequences that the legislature could not have possibly intended. See 

### Sharp v. House ofLloyd, Inc., 815 S.W.2d 245,249 (Tex. 1991). And we strive to always “give effect to all the words ofastatute and not treat any statutory language assurplusage.” 

### Chevron Corp.v.Redmon, 745 S.W.2d 314,316 (Tex. 1987) (citing 

### Perkins v.State, 367 S.W.2d 140 (Tex. 1963)).
Subsection 130.068(c) is unclear. See nx. EDUC.CODEANN.§ 130.068(c) (Vernon Supp. 2006). The language-“[elxcept as otherwise provided by this section, Section 130.065 applies to an action taken under this section”-indicates that where section 130.068 provides otherwise, itdoes so as an exception to section 130.065. 

### Id.; see Fain v. State, 986 S.W.2d 666, 672 (Tex. App.-Austin 1998, pet. ref d) (recognizing the language “except asotherwise provided” creates an exception). Section 130.068 provides otherwise from section 130.065 in only one respect-section 130.068 authorizes the governing board to call, an election based on student benchmarks,. while section 130.065 authorizes an election upon presentment of apetition. See TEX.EDUC.CODEANN. $5 130.065(a) (Vernon Supp. 2006) (“Onpresentation.. ofapetition. .“); 130.068(a)-(b) (“[tlhe governing board may order an election.

..if [specified student attendance thresholds are metI”). In all other respects the two provisions are harmonious, so that the requirements and procedures in section 130.065 apply to an election authorized by subsections 130.068(a) or@). Thus, the authority to call an election based on student benchmarks and the authority based on apetition appear to be alternatives, so that subsections 130.068(a) and (b) are exceptions to section 130.065 to the extent that section 130.065 requires apetition.Raymund A. Paredes, Ph.D. - Page 3 (GA-0452)

But subsection 130.068(c) also states that section 130.065 applies to actions taken under section 130.068, “including the provisions of section 130.065 requiring apetition to be submitted before an election may be called.” 

### Id. $ 130.068(c). This language which can be interpreted to require apetition would directly conflict with the construction that subsections 130.068(a) and (b) are alternatives to the petition requirement. Were we to construe this phrase literally and under the ordinary rules ofgrammar, apetition wouid seem to berequired in allinstances. Such aconstruction would render subsections 130.068(a) and (b) meaningless and make the first part of subsection 130.068(c) surplusage. If apetition under subsection 130.065(a) is aprerequisite to an annexation election, then satisfaction ofthat requirement alone would authorize the governing board to call the election under section 130.065-the student benchmark provisions in subsections 130.068(a) and (b) would be unnecessary. And there isno need for subsection 130.068(c) to create an exception to section 130.065 when it provides otherwise if section 130.068 does not provide otherwise in any respect. Based on apurely plain reading of subsection 130.068(c), we appear to be faced then with achoice between construing asmeaningless either (1)the last phrase of subsection 130.068(c) or (2) the fast phrase of subsection 130.068(c) as well as the entirety of subsections 130.068(a) and (b).
But there is aconstruction that gives full effect to all of~section 130.068 and section 130.065 and that at the same time retains all of the statutory language of subsection 130.068(c). That construction requires us to interpret the language of subsection 130.068(c) that states “including the provisions of Section 130.065 requiring apetition to be submitted before an election may be called” to relate to the “[elxcept as otherwise provided” language atthe beginning of subsection 130.068(c) and not to the immediately preceding language that states that “Section 130.065 applies to an action taken under this section.” 

### Id. Under this construction, subsection 130.068(c) can be understood to provide that section 130.068 operates asanexception to section 130.065 including section 130.065’s petition requirement. Such aconstruction harmonizes sections 130.065 and 130.068 and preserves the legislative enactment. Though this construction may not follow the ordinary rules ofgrammar, we are to avoid treating statutory language as surplusage unless doing so is absolutely unavoidable. See 

### Davis v.

### State, 225 S.W. 532,535 (Tex. Crim. App. 1920); 

### seealsoEscobar v.Sutherland, 917 S.W.2d 399, 407 (Tex. App.-El Paso 1996, no writ) (recognizing that courts may disregard the rules of grammar to give effect to legislative intent). Much like the Texas Supreme Court, here we

do not lightly presume the Legislature [to] have done a useless act, and [do] not read statutory language to be pointless ifitis reasonably susceptible of another construction. But as both these statements suggest, we must recognize that possibility. Itis atleast theoretically possible that legislators-like judges or anyone else-may make a mistake. 

### Brown v.

### DeJoCruz, 156 S.W.3d 560,566 (Tex. 2004) (footnotes omitted). When subsection 130.068(c) is given this construction, subsections 130.068(a) and (b) operate as narrow exceptions to only the petition requirement of section 130.065. The remaining provisions of section 130.065 would apply to an annexation election called by a governing board under subsections 130.068(a) or(b). Accordingly, we conclude that the governing body ofajunior college district may call an annexation election without apetition when authorized by subsections 130.068(a) or(b).Raymund A. Paredes, Ph.D. - Page 4 (GA-0452)

SUMMARY
Under the Texas Education Code, chapter 130, a governing board of ajunior college district may call or order an annexation election without a voter petition when authorized by subsections 130.068(a) or (b). An election so called must nevertheless comply with all other procedural requirements of section 130.065. Very truly yours, 

# 4kiZBW

Attorney General of Texas

KENT C. SULLIVAN First Assistant Attorney General
ELLEN L. WITT Deputy Attorney General for Legal Counsel
NANCY S. FULLER Chair, Opinion Committee
Charlotte M. Harper Assistant Attorney General, Opinion Committee