, 

DAN MORALES 

ATTORNEY CENERAL 

QBffice of tfp Elttornep QBeneral 

&date of llCexae 

November 1,199l 

Mr. Lionel R. Meno 

Commissioner 

Texas ~Education Agency 

1701 North Congress 

Austin, Texas 78701-1494 

Opinion No. DM-53 

Re: Construction of section 23.023(h) of 

the Texas Education Code (RQ-157) 

Dear Commissioner Meno: 

You ask for a construction of section 23.023(h) of the Education Code. 

Specifically, you ask how that provision applies to an independent school district 

governed by a seven-member board that becomes subject to the provisions of 

section 23.023 of the Education Code at a time when fewer than four positions on 

the board of trustees are scheduled to be filled at the school district’s next regularly 

scheduled trustee election. 

Section 23.023 of .the Education Code provides that independent school 

districts with 64,000 or more students in average daily attendance shall be governed 

by nine-member boards of trustees elected in biennial elections to staggered fouryear terms. Educ. Code 9 23@3(a). (h).l 

Independent school districts not subject to the requirements of section 23.023 

are generally governed by boards of trustees of seven members. Educ. Code Q 

23.01.2 Subsection (h) of section 23.023 provides a transition mechanism for the 

conversion from a seven-member board to a nine-member board. Subsection (h) 

appears to assume that a school district becoming subject to the requirements of 

%cept as provided by .subsections (j) and (k), section 21.023 applies, by its terms, to all 

independent sckool districts whether created by general or special law. Subs&ion (i) of section 23.023 

excepts a sckool district, all or part of which is located in certain cities, from the coverage of the 

section. Subsection Q excepts any school district which adopted a plan for electing any part of its 

trustees from single-member dktrkts before August 31,199l. 

%depdeat school d&rifts with fewer than 150 students may be governed by boards of 

trustees of three or five members. Id 0 23.022. 

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Mr. Lionel R. Meno - Page 2 (DM-53) 

section 23.023 will have four-year terms. The terms for which such trustees are 

elected, however, vary among independent school districts. Educ. Code $5 23.12 - 

23.16. The subsection additionally appears to assume that such a school district will 

have four trustee positions up for reelection at the first election after the district 

becomes subject to the requirements of section 23.023.” It does so by providing 

that at the first election held under section 23.023 six board members will be elected 

and also that members of the board of trustees serving on the date at which a 

district becomes subject to section 23.023 shall serve the remainder of their terms. 

It is possible, though, for a district to become subject to the act at a time when only 

three of its current trustee positions are up for election. In that case, at the first 

election to be held under section 23.023, four of the current members would retain 

their seats for another two years. If six positions were filled at the election in 

compliance with subsection (h),~a ten-member board would result. This result is 

inconsistent with subsection (a) of section 23.023 which requires a nine-member 

board. 

We are advised that the Austin Independent School District (AND) has 

exceeded 64,000 students and has become subject to section 23.023 of the Education 

Code. Then board members of AISD have four-year terms. However, AISD has only 

three of its current trustee positions up for election at its next biennial trustee 

election. Accordingly, as explained above, if AISD follows the procedure prescribed 

by subsection (h) of section 23.023 literally, it will exceed the number of trustees 

authorized by law.4 

We believe that the legislature’s intent as expressed by subsection (a) of 

section 23.023 is clear and unambiguous. Any construction which results in a tenmember board of directors, even temporarily, creates radical changes in the 

composition and operation of the board of trustees and cannot find support in the 

language of the statute. For example, subsection (h) provides, in part, that the 

%&&ion (k) requires that a school distrid that becomea subject to section 23.023 will begin 

electing trustees in accordance with the section “no later than the tint regular election held in the next 

calendar year or Subsequent year.’ For districts with biennial elections, this requires compliance with 

the section at the fust eledion held in a year after the calendar year in which the district becomes 

subject to the section. 

4We are further advised by the Texas Education Agency that no other school district is likely 

to become subject to the requirements of section 23.023 before the legislature meets again in regular 

session, at which time the other obvious administrative difficulties with section 23.023 may be 

addressed. 

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Mr. Lionel R. Meno - Page 3 (DM-53) 

members of the board for whom there was no election (the four remaining members 

of the seven-member board) will draw lots to determine which of the three 

remaining trustee districts each of them will represent. As there are more 

remaining members than districts to represent, a construction resulting in a tenmember board would create, perforce, an additional at-large member, diluting the 

voting strength of each of the other members. With a nine-member board, five 

votes carries a motion. With a ten-member board six votes are needed. 

Similarly, we do not think that the legislature intended that the adoption of 

the provisions of section 23.023 be delayed for a biennium in order to wait for a 

situation in which only three current members would be in a position to hold over. 

This construction would violate express language in subsection (k): We note that 

when section 23.023 was first adopted in 1977, the legislature found that in the 

school districts with the largest number of students, the at-large election of all 

members of the board of trustees hinders communication between trustees and 

constituents and may dilute the voting power of ethnic groups. Acts 1977,65th Leg., 

ch. 852, 5 3. Given the importance of these concerns, we believe the legislature 

intended that subsection (k) be given effect. 

Subsection (h) clearly states that the members of the current board shall 

serve out their terms. There is no mechanism under state law to remove a duly 

elected offtcial who is guilty of no wrongdoing. Accordingly, the provision of 

subsection (h) providing that current members of the board serve out their terms 

must be given effect. 

It is axiomatic that the fundamental rule controlling the construction of 

statutes is to ascertain the intent of the legislature. Calvert v. Texu.r Pipe Line. Co., 

517 S.W.2d 777 (Tex. 1974). Even a ‘cursory examination of subsection (h) of 

section 23.023 reveals that it is intended to provide a transition mechanism to 

expand a board of trustees from seven to nine members. Where. subsection (h) 

presents a problem in thin regard with respect to AISD is in requiring that six 

members be elected in the first election under section 23.023. We think that in 

stating that six members be elected, the legislature was merely making the (as it 

turns out, unwarranted) assumption that there would be four vacancies to fill on the 

previous seven-member board at the time of conversion. Accordingly, we believe 

the intent of the legislature was not to prescribe a set number of trustees that must 

be elected at that time, but to instruct the school district to elect enough members to 

fill its existing vacancies plus the two new positions created by the conversion to 

nine members. 

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Mr. Lionel R. Meno - Page 4 (DM-53) 

Texas authorities support the interpolation of words into a statute where it is 

necessary to achieve a clear legislative intent. Mauzy v. Lcgirlarive Redistricting Bd, 

471 S.W.2d 570 (Tex. 1971). Reading words into a statute must be done with 

circumspection. However, we believe that the present instance creates an 

appropriate circumstance for this method of statutory construction. Where 

necessary to avoid irrationality or inconsistency, and where, as here, the legislative 

intent may be inferred from other parts of the statute, and where the omission is 

apparently the result of a mistake, the rules of statutory construction support 

reading words into a statute. 2A, SUTHERLAM) STATUTORY CONSTRUCTION $ 

47.38 (4th ed. 1986). Accordingly, we find that in order to give effect to the intent of 

the legislature in enacting section 23.023 of the Education Code, subsection (h) of 

that section should be read, in pertinent part, as follows: 

jive or six members, as appropriate, shall be elected - the 

president, vice-president, and three or four regular members, us 

approptiate. . . . (Emphasis indicates words that should be read 

into the statute.) 

For the reasons stated herein, we believe that subsection (h) requires the 

election of five members to the board of trustees of a district subject to section 

23.023 of the Education Code when three positions of the prior seven-member 

board are up for election in the first election held under section 23.023.s 

SUMMARY 

Subsection (h) of section 23.023 of the Education Code 

requires the election of five members to the board of trustees of 

a district subject to,section 23.023 when three positions of the 

prior seven-member board are up for election in the first 

election held under section 23.023. 

SThis opinion does not address any issues arising from the application of section 5 of the 

Voting Rights Act of 1%5, as amended, 42 U.S.C. P 1973c, to the statute in question or its 

implementation. Submission, pursuant to section 5 of the Voting Rights Act of 1965, to the United 

States Department of Justice of the 1991 amendments to section 23.0’23, or of any local implementation 

thereof, is the responsibility of either the Secretary of State or the local school district, as appropriate. 

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Mr. Lionel R. Meno - Page 5 (DM-53) 

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 

RENEAHICKS 

Special Assistant Attorney General 

MADELEINE B. JOHNSON 

Chair, Opinion Committee 

Prepared by John Steiner 

Assistant Attorney General 

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