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 of territory 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~of a junior college district to order an annexation 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 for the annexation ofterritory by ajunior college 

district by election. See TEX. EDUC. CODE ANN. 5 130.065 (Vernon Supp. 2006). The governing 

board of a junior college district is authorized to call an annexation election upon the “presentation 

of a petition 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 a majority 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 on the question of establishing expanded boundaries for the junior 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: 

‘See Letter from Raymund A. Panda, Ph.D., Commissioner of Higher 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 af http:llwww.oag.state.tx.us) [hereinafter Request Letter]. 

‘Subsection 130.068(a) relates to the expansion ofthe juniqr college district to “encompass all of the territory 

located within the 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 the junior college district to 

“encompasspart ofthe territory located within the district’s service area established 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) . . if more than 35 percent of the total number of students who 

enrolled in the junior college district in the most recent academic year 

resided outside of the existing junior college district[, or] 

(b) if more than 15 percent of the high school graduates for each 

of the preceding five academic years in the territory proposed to be 

added to the district have enrolled in the junior 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 a petition 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 

a petition 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 is to ascertain the legislature’s intent and to give 

effect to that intent. See Union Bankers Ins. Co. v. Shelton, 889 S.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 we may consider aids to construction such as the legislative history, 

the object to be obtained, and the consequences of a particular construction. See Union Bunkers Ins. 

Co., 889 S.W.2d at 280; see also TEX. GOV'T CODE ANN. 3 311.023 (Vernon 2005) (Code 

Construction Act). A statute is to be construed so that it harmonizes with other law unless the statute 

clearly contains a contrary intention. See Blackv. Am. Bankers Ins. Co., 478 S. W.2d 434,437 (Tex. 

1972). But we will not apply the statutory language literally if the 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 of a statute and not treat any statutory language as surplusage.” 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. CODE ANN. § 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, it does 

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 as otherwise 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 a petition. See TEX. EDUC. CODE ANN. 

$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 a petition 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 a petition. 
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 a petition to be submitted 

before an election may be called.” Id. $ 130.068(c). This language which can be interpreted to 

require a petition 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 of grammar, a petition wouid seem to be required in all instances. Such a construction 

would render subsections 130.068(a) and (b) meaningless and make the first part of subsection 

130.068(c) surplusage. If a petition under subsection 130.065(a) is a prerequisite to an annexation 

election, then satisfaction of that 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 is no 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 a purely plain reading of subsection 130.068(c), we appear to be faced then with 

a choice between construing as meaningless 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 a construction 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 a petition 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 as an exception to section 130.065 including section 130.065’s 

petition requirement. Such a construction harmonizes sections 130.065 and 130.068 and preserves 

the legislative enactment. Though this construction may not follow the ordinary rules of grammar, 

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); see also Escobar 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 if it is reasonably 

susceptible of another construction. But as both these statements 

suggest, we must recognize that possibility. It is at least theoretically 

possible that legislators-like judges or anyone else-may make a 

mistake. 

Brown v. De Jo Cruz, 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 of ajunior 

college district may call an annexation election without a petition 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 a junior 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