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# ~ ATTORNEY GENERAL OF TEXAS GREG ABBOTT

January 23,2012

The Honorable Eddie Lucio, Jr. Chair, Senate Committee on International Relations and Trade Post Office Box 12068 Austin, Texas 78711-2068
Dear Senator Lucio: Opinion No. GA-0907
Re: Vacancies on ajuniorcollege district's board of trustees (RQ-0987-GA)

You ask two questions about a vacancy on ajuniorcollege district's boardoftrustees. Your first question is, "Whatlegal procedures are available to determine whether a member ofthe board oftrustees ofajuniorcollegedistrict whosetrustees areelected from single-membertrusteedistricts has vacated the position by ceasing to reside in the single-member district from which the member was elected?"] One availablelegal action wouldbe an application for a writ ofquo warranto, which "is an ancient prerogative writ through which the State acts to protect itself and the good of the public generally through its chosen agents as providedby its constitution and laws

... to challenge the authority of a public officer." Lewis v. Drake, 641 S.W.2d 392, 394 (Tex. App.-Texarkana 1982, no writ). Some "authorities in this State indicate that a proceeding in quo warranto is the exclusive legal remedy afforded to the public by which it may protect itself against the usurpation orunlawful occupancy ofa public office by an illegal occupancy." Hamman v. Hayes, 391 S.W.2d 73,74 (Tex. Civ. App.-Beaumont 1965, writref'd) (citing several Texas cases, including a Texas Supreme Court case, Williams v. Castleman, 247 S.W. 263 (Tex. 1922)). However, we have not found, and no briefing submitted on this matter has identified, a Texas constitutional provision or statute providing that it is the exclusive remedy. See TEX. CONST. art. V, § 3(a) (authorizing the Legislature to grant the Texas Supreme Court originaljurisdiction over writs ofquo warranto in specified cases), TEX. CIV. PRAC. & REM. CODE ANN. § 66.001 (West 2008) (listing who may seek a writ ofquo warranto). Therefore, unless or until a statutory or constitutional provision provides that a writ ofquo warranto is the exclusiveremedy for the illegal occupancy ofan office, courts may determine whether it is the exclusive remedy. See, e.g., Robinson etal. v. Neeley etal., 192 S.W.3d 904,909 (Tex. App.-Dallas 2006, no pet.).

iLetter from Honorable Eddie Lucio, Jr., Chair, Senate Committee on International Relations and Trade, to HonorableGregAbbott, Attorney General ofTexas at 1(July 15, 2011), https:llwww

.oag.state.tx.us/opin/index_rq.shtml ("Request Letter").The Honorable Eddie Lucio, J1'.

- Page 2 (GA-0907)

Since the Hamman decision, some courts have indicated that other legal remedies might be available in particular circumstances. Id. For example, a Texas appeals court has held that an independent school district's board of trustees could seek a declaratory judgment on whether a trustee vacated his office by ceasing to reside in his district. See Tovar v. Bd. ofTrs. of Somerset Indep. Sch. Dist., 994 S.W.2d 756, 759-760 (Tex. App.-Corpus Christi 1999, pet. denied). Another Texas appeals court has held that an injunction was a proper way to restrain some trustees ofan independent school district from filling vacancies that the trustees supposed had been created when other trustees resigned from office. Garcia v. Angelini, 412 S.W.2d 949,951 (Tex. Civ. App.-Eastland 1967, no writ). See also id. (stating that quo warranto was not the exclusive way to determine whether the trustees who had resigned were still trustees). Accordingly, we advise you that, depending on the facts ofaparticular case, an application for a writ of quo warranto, a declaratory judgment, or an injunction could be a legal action in which a court would determine whether a board member vacated his or her position. Because this office cannotresolve fact questions, we cannot determine whether any ofthose legal actions would be available in any particular instance. See Tex. Att'y Gen. Op. No. GA-0884 (2011) at 1 n.2 (explaining that attorney general opinions cannot resolve questions offact).
Yoursecondquestionis, "Maytheboardoftrustees ofajuniorcollegedistrict whosetrustees are elected from single-member trustee districts order a special election to fill a vacancy on the board? If so, what term would the trustee elected at the special election serve?" Request Letter at 1. The first part ofthat question is based on a discrepancy between two sections ofthe Education Code. Id. at 2. Section 130.0822(i) provides that "[a]ny vacancy on the board shall be filled by appointmentmade bythe remainingmembers ofthe board." TEX. EDUC. CODEANN. § 130.0822(i) (West 2002). Section 130.082 provides that "[a]ny vacancy occurring on the board through death, resignation, orotherwise, shallbefilled by a special election orderedbytheboardorby appointment by resolution or order ofthe board." Id. § 130.082(d) (West Supp. 2011).
In attempting to resolve that discrepancy, we note that section 130.0822 applies specifically to "single-member trustee districts." Id. § 130.0822(a), (d) (West 2002) (entitled "Election From Single-Member Trustee Districts"). See also Request Letter at 1 (asking about "single-member trustee districts"). In contrast, section 130.082does notapply specificallyto single-memberdistricts. TEX. EDUC. CODE ANN. § 130.082 (West Supp. 2011) (applying to the "GoverningBoardofJunior College of Other than Independent School District"); id. § 130.082(d)-(f) (applying to "at large districts"). If, as you suggest, there is an irreconcilable conflict between sections 130.082 and 130.0822regarding elections in single-member trustee districts, the provisions in section 130.0822, which specifically address single-member trustee districts, would prevail over the provisions of section 130.082, which do not specifically address single-member trustee districts. See Bradley v. State ex rei. White, 990 S.W.2d 245, 251 (Tex. 1999) (noting that, underTexas law, when a specific statutory provision is in irreconcilable conflict with a general statutory provision, the specific provision prevails over the general). See also id. (explaining that section 311.026 of the Texas Government Code is a codification ofthe common-law doctrine ofinpari materia, whichprovidesThe Honorable Eddie Lucio, Jr.

- Page 3 (GA-0907)

that specific statutory provisions prevail over general ones). Accordingly, "[a]ny vacancy on the board shall be filled by appointment made by the remaining members ofthe board." TEX. EDUC. CODE ANN. § 130.0822(i) (West 2002). Furthermore, section 130.0822 provides that "[t]he appointment and election oftrustees ofthejuniorcollege district are subjectto Section 130.082 of this code, except as otherwise provided by this section." Id. § 130.0822(c). Section 130.0822 providesotherwisefrom section 130.082regardingelectionsinsingle-membertrusteedistricts. TEX. EDUC. CODE ANN. §§ 130.082(d) (West Supp. 2011), 130.0822(i) (West 2002).
The second part of your last question is based on another discrepancy between sections 130.082 and 130.0822. Request Letter at 3. Section 130.082(d) provides that "[t]he person appointed to fill the unexpired term shall serve until the next regular election of members to the board" and section 130.0822(i)providesthat "[t]heappointedperson serves for theunexpiredterm." TEX.EDUC.CODEANN. §§ 130.082(d) (WestSupp. 2011), 130.0822(i) (West2002). Neitherstatute discusses how long an elected officer must serve, but article XVI, section 27 of the Texas Constitution requires that all elections to fill vacancies of office in this State be for the unexpired term only. TEX. CONST. art. XVI, § 27. In any event, the person filling the vacancy would perform the duties ofoffice until his or her successor is duly qualified, whenever that maybe. Id. art. XVI, § 17.

### The Honorable Eddie Lucio, Jr.

- Page 4 (GA-0907)

SUMMARY 

### Depending on the facts of the case and the circumstances surrounding any particular litigation, an application for a writ ofquo warranto, a declaratory judgment, or an injunction might allow a court to determine whether a member of a board of trustees of a junior college district vacated his or her position.
A vacancy on the board oftrustees ofajuniorcollege district whose trustees are elected from single-membertrustee districts must be filled by appointment made by the remaining members of the board. A person elected or appointed to fill a vacancy on ajunior college district's board oftrustees must perform the duties ofoffice until his or her successor is duly qualified.

DANIEL T. HODGE First Assistant Attorney General
DAVID J. SCHENCK Deputy Attorney General for Legal Counsel JASON BOATRIGHT Chair, Opinion Committee
Jason Boatright Assistant Attorney General, Opinion Committee