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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 a junior college district's board of 

trustees (RQ-0987 -GA) 

You ask two questions about a vacancy on a junior college district's board of trustees. Your 

first question is, "What legal procedures are available to determine whether a member of the board 

of trustees of a junior college district whose trustees are elected from single-member trustee districts 

has vacated the position by ceasing to reside in the single-member district from which the member 

was elected?"] One available legal action would be an application for a writ of quo 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 provided by 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 

or unlawful occupancy of a public office by an illegal occupancy." Hamman v. Hayes, 391 S.W.2d 

73,74 (Tex. Civ. App.-Beaumont 1965, writ ref' 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 original jurisdiction over writs of quo warranto in 

specified cases), TEX. CIV. PRAC. & REM. CODE ANN. § 66.001 (West 2008) (listing who may seek 

a writ of quo warranto). Therefore, unless or until a statutory or constitutional provision provides 

that a writ of quo warranto is the exclusive remedy for the illegal occupancy of an office, courts may 

determine whether it is the exclusive remedy. See, e.g., Robinson et al. v. Neeley et al., 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 

Honorable Greg Abbott, Attorney General of Texas 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. of Trs. 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 of an 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 of a particular 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 cannot resolve fact questions, we cannot determine whether any of those 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 of fact). 

Your second question is, "May the board of trustees of ajunior college district whose trustees 

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 of that question is based on a discrepancy between two sections of the Education 

Code. Id. at 2. Section 130.0822(i) provides that "[a]ny vacancy on the board shall be filled by 

appointment made by the remaining members of the board." TEX. EDUC. CODE ANN. § 130.0822(i) 

(West 2002). Section 130.082 provides that "[a]ny vacancy occurring on the board through death, 

resignation, or otherwise, shall be filled by a special election ordered by the board or by appointment 

by resolution or order of the 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 130.082 does not apply specifically to single-member districts. 

TEX. EDUC. CODE ANN. § 130.082 (West Supp. 2011) (applying to the "Governing Board of Junior 

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 

130.0822 regarding 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, under Texas 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 of the common-law doctrine of in pari materia, which provides 
The 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 of the board." TEX. EDUC. 

CODE ANN. § 130.0822(i) (West 2002). Furthermore, section 130.0822 provides that "[t]he 

appointment and election of trustees of the junior college district are subject to Section 130.082 of 

this code, except as otherwise provided by this section." Id. § 130.0822(c). Section 130.0822 

provides otherwise from section 130.082 regarding elections in single-member trustee districts. 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) provides that "[t]he appointed person serves for the unexpired term." 

TEX.EDUC.CODEANN. §§ 130.082(d) (WestSupp. 2011), 130.0822(i) (West 2002). Neither statute 

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 of office until his or her successor is duly qualified, whenever that may be. 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 of quo 

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 of trustees of a junior college district 

whose trustees are elected from single-member trustee districts must 

be filled by appointment made by the remaining members of the 

board. A person elected or appointed to fill a vacancy on a junior 

college district's board of trustees must perform the duties of office 

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