Monday, December 22, 2008

Attorney General sets deadline for Dallas ISD Opinion on legality of four-year Trustee terms after December 31, 2007

The office of Attorney General Greg Abbott has set a deadline of January 19, 2009 for receipt of briefs and additional comments from all interested parties regarding the Opinion on the legality of the Dallas ISD decision to change the length of Board member terms after December 31, 2007 and cancel the 2009 Trustee election.

All interested parties should send written submissions as indicated in the letter from the Chair of the Opinion Committee below.




December 17, 2008

Mr. Robert Scott
Commissioner of Education
Texas Education Agency
1701 North Congress Avenue
Austin, Texas 78701-1494

Re: Authority of the board of trustees of an independent school district to change the length of its members' terms after December 31, 2007 (RQ-0770-GA)

Dear Commissioner Scott:

We have received your request for an attorney general opinion, dated December 3, 2008, and have designated it as Request No. 0770-GA. Please refer to that number in future correspondence with us about this matter. Section 402.042 of the Government Code provides that the Attorney General shall issue an opinion not later than the 180th day after the date that an opinion request is received. TEX. GOV'T CODE ANN. § 402.042(0(2) (Vernon 2005). We received your request on December 8, 2008 setting a due date for your opinion of June 3, 2009. We will respond by that date, or before, if possible.

By copy of this letter we are notifying those listed below of your request and asking them to submit briefs if they care to do so. If you are aware of other interested parties, please let us know as soon as possible. We ask that the briefs be submitted by January 19, 2009 to ensure that the Opinion Committee will have adequate time to review and consider arguments relevant to the request from all interested parties. Written submissions are most useful, as the members of the Opinion Committee are not available to comment on or discuss the merits of legal questions at issue in an opinion request. Parties may request an extension of time to file a brief by calling (512) 463-2110.

Very truly yours,

Nancy S. Fuller
Chair, Opinion Committee

Enclosure: Request No. 0770-GA

Mr. Robert Scott - Page 2

cc: The Honorable Royce West, Chair, Committee on Intergovernmental Relations, Texas
State Senate
Ms. Ann McGeehan, Director of Elections, Office of the Secretary of State
Ms. Joy Baskin, Director of Legal Services, Texas Association of School Boards
Dr.. Wendy Lee Gramm, Chairman of the Board, Texas Public Policy Foundation
Mr. Michael Hinojosa, Ed.D., Superintendent of Schools, Dallas Independent School
Mr. Rolando L. Rios, Attorney for Dallas ISD, Rolando L. Rios and Associates
Mr. Tom Smith, Executive Director, Public Citizen-Texas
Mr. Johnny Veselka, Executive Director, Texas Association of School Administrators
Mr. Kyle Ward, Executive Director, Texas PTA
Ms, Suzy Woodford, Executive Director, Common Cause of Texas
Ms. Teresa Spears, Governor's Appointment Director

POST OFFICE Box 12548, AUSTIN, TEXAS 78721-2548 TEL:(512)463-2100 WWW.OAG.STATE.TX.US
An Equal Employment Opportunity Employer Printed on Recycled Paper


1701 North Congress Ave. Austin, Texas 78701=1494 512/463-9838

Robert Scott

December 3, 2008

Honorable Gregg Abbot
Attorney General of Texas
Post Office Box 12548
Austin, Texas 78711-2548

Re: Attorney General Opinion Request

Dear General Abbott:

At the request of a Dallas Independent School District ("DISD") trustee, I am seeking your opinion as to the effect of Section 11.065, Texas Education Code on the ability of a board of trustees to change the length of terms for that body.

As you know, most school districts in Texas are subject to Section 11.059, Texas Education Code, which allows the board of trustees of a school district to serve either a three or four year term. That section was amended by the 2007 Texas Legislature to add subsection (e) and thus authorize boards of trustees to change the length of their existing terms:
(e) Not later than December 31, 2007, the board of trustees may adopt a resolution changing. the length of the terms of its trustees. The resolution must provide for a term of either three or four years and specify the manner in which the transition from the length of the former term to the modified term is made. The transition must begin with the first regular election for trustees that occurs after January 1, 2008, and a trustee who serves on that date shall serve the remainder of that term. This subsection expires January 1, 2013.
We have understood Subsection 11.059 (e) to authorize boards of trustees to change the length of their terms only until December 31, 2007'.
Subsection 11.065 (e) at least partially overlaps an authorization pursuant to Acts, 80th Leg., Ch 1010, Section 2 that also created a December 31, 2007 deadline. We also understand that some school districts have been required to change the terms of trustees after the December 31, 2007 deadline in order to comply with the joint election requirements under section 11.0581, Texas Education Code. For example, a school district holding joint elections with a municipality could be forced to change its election to a different date should the municipality change its own election date. 2 Acts, 2003, 78th Leg., Ch. 344. Note this act adopted a Section 11.064 of the Education Code, which was renumbered in 2005 as Section 11.065. 3 Committee Report available at hftp://www.capitol.state.tx.usitIodocs/78R/analysis/doc/SB00688H.doc.

DISD is subject to certain other state statutes that do not apply to all school districts. Specifically, we understand Section 11.065 of the Texas Education Code to apply to DISD:

(a) Sections 11.052(g) and (h) and Sections 11.059(a) and (b) do not apply to the board of trustees of a school district if:
(1) the district's central administrative office is located in a county with a population of more than two million; and
(2) the district's student enrollment is more than Inlya And less than 200,000.
(b) Section 11.053 of this code` and -Section 141.001, Election Code, apply to the board of trustees of a school district described by Subsection (a).
(c) A trustee of a school district described by Subsection (a) may not serve a term that exceeds four years.
(d) Notwithstanding Chapter 171, Acts of the 50th Legislature, Regular Session, 1947 (Article 2783d, Vernon's Texas Civil Statutes), to the extent consistent with this section, the board of trustees of a school district described by Subsection (a) may adopt rules necessary to govern the term, election, and residency requirements of members of the board that may be adopted under general law by any other school district.
Section 11.065 was adopted in 2003 as Senate Bill 6882, preceding the 2007 addition of subsection 11.059 (e). As introduced, Senate Bill 688 did not include the phrase "that may be adopted under general law by any other school district" in Subsection (d). That phrase was added by the House Public Education Committee3 and remained unchanged through final adoption.

The opinion requested is whether DISD may, under the provisions of Section 11.065, Texas Education Code, or any other law, change the term served by a member of the board of trustees after December 31, 2007. The opinion request from the DISD board member represents.that the DISD board has voted to change the length, of its terms from' - three to four years. The trustees' action has been reported to also postpone elections previously scheduled for May, 2009 to November, 2010.

Thank you for your consideration of this request. Should you need any additional information, please feel free to contact me or David Anderson, General Counsel, at (512) 463-9720.


Robert Scott
Commissioner of Education