Hon. Bevington Reed Opinion No. M-851

Commissioner, Coordinating Board Texas College andUniversity System Re: Canthe Houston InP. 0. Box 12788, Capitol Station dependent School District Austin, Texas 78711 establish ajunior college district under provisions Dear Dr. Reed: of Section 51.011 of the Texas Education Code? Youhave requested the opinion of this office concerning whether the Houston Independent School District mayutilize the provisions of Section 51.011 of the Texas Education Code to organize ajunior college district coterminous with the boundaries of the Houston Independent School District or must the organization and creation of such ajunior college district be pursuant to the provisions of Article 2815h-2a, Vernon’s, Civil Statutes. Both Section 51.011 of the Texas Education Code and Article 281Sh-2a were enacted bythe 61st Legislature in 1969. Section 5of House Bill 534, Acts of 61st Legislature, 1969, Regular Session, Chapter 889, the Texas Education Code, provides that:

“If any act,passed at the samesession of the legislature conflicts with anyprovision of the Texas Education Code, the.act prevails.” (Emphasis added.) This office has previously-held that’ ininstances where aprovision of the Texas Education Code conflicts with another statute passed at the samesession of the Legislature which enacted the Code that the provisions of the statute control over the provisions of the Texas Education Code. Attorney General’s Opinion No. M-649 (1970). Inview of the foregoing, it becomes necessary to ascertain whether Section 51.011 of the Texas Education Code andArticle 2815h-2a are in conflict.

Section 51.011 of the Texas Educ,ation code and the ensuing sections of Subchapter Bthereof, aswell as Article 2815h-2a, deal with the creation of junior college districts.
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‘Hon. Bevington Reed, page 2 (M-851)

Section 51.011 authorizes the establishment of an independent school district junior college in instances where the assessed property valuation of the district is not less than $12,000,000 andthe average daily attendance in the high schools within the district is not less than 400 students, or where the assessed property valuation of the district is $20,000,000 or more andthe average daily attendance in the high schools within the district is less than 400students but not less than 300 students.

Thepetition for anelection to create ajunior college district pursuant to Section 51.011 is provided for in Section 51.012, andsuch petition must be signed bynot less than five percent (5%) of the qualified taxpaying electors of the proposed district. Pursuant to the provisions of Section 51.016 and Section 51.017 ajunior college district established pursuant to Section 51.011 maybe governed byeither the board of trustees of the independent school district or aseparate board of trustees for thejunior college district. Section 51.012 authorizes the governing board of ajunior colelge district created pursuant to Section 51.011 to issue bonds andlevy advalorem taxes. The annual bond tax rate is limited to fifty cents ($.SO) on the $100valuation of taxable property in the district, andthe annual bond tax together with the annual maintenance tax cannot exceed the aggregate of one dollar ($1) onthe $100valuation of taxable property in the district.

Article 2815h-2a authorizes the creation of junior college districts by school districts having anassessed valuation of more than $3,868,000,000 andlocated in acounty having apopulation of 1,200,OOO or more. Section 2of Article 2815h-2a provides for the calling of anelection to create ajunior college district upon the petition of at least ten percent (10%) of the qualified taxpaying voters of the district. If authorized bythe voters ajunior college district created pursuant to Article 2815h-2a may issue bonds andlevy atax not to exceed ten cents ($.lO) per $100 of the assessed valuation of all taxable property situated within the district. Section 5of Article 2815h-2a requires the election of aboard of trustees to govern the junior college district at the time of the election to decide the issue of creating the junior college district.

Theforegoing observation concerning the provisions of Article 2815h-2a and Subchapter Bof the Texas Education Code disclose that there exist numerous differences between the twoprocedures for creating junior college districts -- the percentage of voters to be obtained onthe petition calling
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Hon. Bevington Reed, page 3 (M-851)

for anelection on the issue of creating the junior college district, the tax vote, the manner of providing for the governing board of the junior college district, andthe basic requirements that adistrict must have to avail itself of either Section 51.011 of the Texas Education Codeor Article 2815h-2a.

AsSection 51.011 of the Texas Education Code and Article 2815h-2a dodiffer in their provisions, this then raises the question of whether the Houston Independent School District maycomply with the provisions of Subchapter Bof the Texas Education Code or must it comply andbe governed by the provisions of Article 2815h-2a in connection with the creation of a junior college district. Pursuant to our holding in Attorney General's Opinion M-649 (1970), if these provisions are in conflict then the provisions of Article 2815h-2a will control.

Section 1of Article 2815h-2a provides, in part, that:

.

"A~school district

. . .ma establish a junior college district as prove -3 edbythe Act<" (Emphasis added.) Subdivision (a) of Section 51.011 of the Texas Education Codeprovides that:

"An independent school district junior college w be established in either of the following types of units:" (Emphasis added.)
opinion, Bythe information contained in your request for our

it would appear that the Houston Independent School District meets the basic requirements to avail itself of either the provisions of Article 2815h-2a or the provisions of Section 51.011 of'the Texas Education Code in connection with the creation of ajunior college district. However, your request further indicates that the Houston Independent School District has elected to proceed pursuant to the provisions of Subchapter Bof the Texas Education Code rather than Article 2815h-2a.

Where statutes relating to the samesubject matter are enacted at the samesession of the Legislature, it is presumedthat they were enacted bythe same policy and imbued with the sameintent, and in ascertaining legislative intent they will be read together as though they were embraced in one act or were supplemental to each other since they are in pari materia. Garrett v. Mercantile National Bankat Dallas, 140

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Hon. Bevington Reed,

Tex. 394, 168S.W.2d page 4 (M-851)

636 (1943). The courts will generally

. . . interpret the language usea in astatute in amannerto make all relevant laws harmonious if possible. State v. Standard Oil Co., 130Tex. 313, 107 S.W.Zd 550 (1937); Griffin v. City mahachie, 276S.W. 201 (Comm.App. 1925). Statutes enacted by the sameLegislature relating to the samesubject should be interpreted, if possible, so as to harmonize their provisions. Slater v. Ellis County Levee Improvement District No. 9, 120 Tex. 272. 36S.W.2d 1014 11931‘1. Statutes will not be construed as conflicting if such construction can bereasonably avoided. Mitchell v. Hancock, 196S.W. 694 (Tex.Civ.App. 1917, nowrit). Both Article 2815h-2a andSection 51.011 of the Texas Education Codemakeuse of.the word "may" in connection with the creation of ajunior college district. Inthe case of Ross v. Tide Water Oil Co., 136Tex. 66, 145S.W.2d 1089 (1941), the Court stated:

"'May' will not be treated as aword of commandunless there is something in the context or subject matter of the act to indicate it wasused in that sense.
. . .ll Thecourts have normally interpreted the word "may" to be oermissive rather than mandatory.- See Hudson Underwriters Agency of Franklin Fire Insurance Co. v. Ablon, 203S.W.2d 584 (Tex. Civ.App. 1947 d' ) Kleck v. Zoning Board of Adjustment of City of Sai ~X:%01s!i9'S.W.2d 406 (T .C' A

. 1958 ref.); State v. Clemen;s 319 S.W.2d 450 ~~exl~ivP~pp. 1958error

error ref.). Asthe Leeislature has madeuse'of the word "Aav" in both Article 2815h-2: and Section 51.011 of the Texas Edu-' cation Code, it would seemto indicate that the intent wasto make available alternative procedures which could beused in creating ajunior college district. Hadthe Legislature desired that only Article 2815h-2a or Section 51.011 of the Texas Education Code be available, it would seemthat mandatory rather than permissive language would have been used.

Inview of the foregoing rules of statutory construction, and in view of the use of the word "may" in both Section 51.011 of the Texas Education Code andSection 1of Article 2815h-2a, weare of the opinion that the provisions of Subchapter Bof the Texas Education Code andArticle 2815h-2a should begiven a construction or interpretation which would harmonize themrather than raise aconflict between them. Consequently, weare of the

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Hon. Bevington Reed, page 5 (M-851)

opinion that Section 51.011 of the Texas Education Code and Article 2815h-2a provide for alternative meansof creating or establishing ajunior college district, andthe Houston Independent School District has the option of selecting which of the procedures available it will follow andbywhich it will be governed in establishing such district. SUMMARY Section 51.011 of the Texas Education Code andArticle 2815h-2a, Vernon's Civil Statutes, provide for alternative means of creating or establishing ajunior college district andare not in conflict. TheHouston Independent School District has the option of selecting which of the procedures available it will follow andby which it will be governed in establishing such district. A

Prepared byPat Bailey Assistant Attorney General APPROVED: OPINIONCOMMITTEE Kerns Taylor, Chairman W.E. Allen, Co-Chairman BobLattimore Vince Taylor TomSedberry Linward Shivers MEADEF. GRIFFIN Staff Legal Assistant ALFREDWALKER Executive Assistant NOLAWHITE First Assistant

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