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DAN MORALES ATTORNEY CENERAL 

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oftfp Elttornep QBeneral &dateofllCexae

November 1,199l
Mr.Lionel R. Meno Commissioner Texas~EducationAgency 1701North Congress Austin, Texas 78701-1494 Opinion No. DM-53
Re: Construction ofsection 23.023(h) of theTexas 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 23.023ofthe Education Code at a time when fewer than four positions on the board oftrustees are scheduled tobe filled at the school district’snext regularly scheduled trustee election. Section 23.023 of .the Education Code provides that independent school districts with 64,000ormore students inaverage daily attendance shall be governed by nine-member boards of trustees elected in biennial elections to staggered fouryear terms. Educ. Code 923@3(a). (h).l Independent school districts not subjecttothe requirements ofsection 23.023 are generally governed by boards of trustees of seven members. Educ. Code Q 23.01.2 Subsection (h) of section 23.023provides 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 districtswhether created bygeneral 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 ofthree orfivemembers. Id 023.022.

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section 23.023will have four-year terms. The terms for which such trustees are elected, however, vary among independent school districts. Educ. Code $523.12- 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 23.023sixboard members willbe 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 ispossible, though, for a district tobecome subject to the act at atime 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 ofthe 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 64,000students and hasbecome subject to section 23.023ofthe Education Code. Then

board members ofAISD have four-year terms. However, AISD hasonly three of its current trustee positions up for election at its next biennial trustee election. Accordingly, asexplained above, ifAISD followsthe procedure prescribed by subsection (h) of section 23.023literally, it will exceed the number of trustees authorized bylaw.4
We believe that the legislature’s intent as expressed by subsection (a) of section 23.023is clear and unambiguous. Any construction which results in a tenmember board of directors, even temporarily, creates radical changes in the composition and operation ofthe board oftrustees and cannot find support in the language of the statute. For example, subsection (h) provides, in part, that the

%&&ion (k) requires that aschool distrid thatbecomea subject to section 23.023 will begin electing trustees in accordance with the section “nolater than the tint regular election held in the next calendar year or Subsequent year.’ For districtswith 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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members oftheboard forwhomthere wasnoelection (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 amotion. With aten-member board sixvotes are needed. Similarly, we do not think that the legislature intended that the adoption of the provisions of section 23.023be delayed for a biennium in order to wait for a situation inwhich 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 thevotingpower ofethnic groups. Acts 1977,65th Leg., ch. 852, 5 3. Given the importance of these concerns, we believe the legislature intended that subsection (k)be giveneffect. 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 mustbegiveneffect.
It is axiomatic that the fundamental rule controlling the construction of statutes is to ascertain the intent ofthe legislature. Calvertv. 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 sixmembers be elected, the legislature was merely making the (as it turns out,unwarranted) assumption that there wouldbe four vacancies to fill on the previous seven-member board at the time of conversion. Accordingly, we believe the intent ofthe legislature wasnot to prescribe a set number oftrustees that must beelected at that time,but to instruct the schooldistrict 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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Texas authorities support the interpolation ofwords into a statute where itis necessary to achieve a clear legislative intent. Mauzyv.LcgirlariveRedistricting 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,wefindthat inorder to giveeffect to the intent of the legislature in enacting section 23.023ofthe Education Code, subsection (h) of that section shouldbe read, inpertinent part, asfollows: 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 inthe first election heldunder section 23.023.s
SUMMARY Subsection (h) of section 23.023 of the Education Code requires the election offivemembers to the board oftrustees of a district subject to,section 23.023when 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 ofJustice ofthe 1991amendments to section 23.0’23,or of any local implementation thereof, isthe responsibility ofeither the SecretaryofState orthe local school district,asappropriate.

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Very trulyyours,

DAN MORALES Attorney General ofTexas
WILLPRYOR FirstAssistant Attorney General
MARY KELLER Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY (Ret.) SpecialAssistant Attorney General
RENEAHICKS SpecialAssistant Attorney General
MADELEINE B.JOHNSON Chair, Opinion Committee Prepared byJohn Steiner Assistant Attorney General

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