Can a Texas hospital district elect all its directors from single-member districts?

Plain-English summary

The Texas Secretary of State asked how hospital districts created under chapter 286 of the Health and Safety Code may elect their boards. Chapter 286 lets registered voters petition to create a hospital district and then hold an election. The petition has to state how the district's permanent directors will be chosen. Section 286.022(c)(2) listed the options: "at large, by place, or both," with the "both" option meaning a set number of directors elected from each commissioner precinct and a set number elected at large.

The first question was whether a chapter 286 district could elect all of its directors from "single member districts," that is, each director chosen by the voters of one portion of the district rather than the whole district. The Attorney General concluded it could. The phrase "by place" can sometimes mean running multiple candidates district-wide for numbered seats, but in chapter 286 it has to mean something broader, because the "both" option expressly ties places to commissioner precincts. So electing all directors "by place" from separate portions of the district is the same thing as electing them all from single member districts.

The second question was whether those single member districts had to line up exactly with the county commissioners' precincts. The Attorney General concluded they did not. Only the "both" (at large and by place) option ties places to commissioner precincts; the all-"by place" option does not, and nothing else in chapter 286 imposes that limit. Other parts of the chapter point the same way: districts can lie in one county or several, can be expanded by adding "defined territory," cannot overlap another hospital district, and are described by metes and bounds, all of which assume districts and their internal divisions are not built only out of whole commissioner precincts. The opinion added two cautions. Chapter 286 allows only an odd number of directors, so a district electing all directors from single member districts needs an odd number of those districts (a plain county-wide district has only four commissioner precincts, an even number). And whatever boundaries a district draws remain subject to one-person-one-vote and to Voting Rights Act preclearance by the United States Justice Department.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. Chapter 286 of the Health and Safety Code has been amended since 1992, and the federal preclearance requirement of section 5 of the Voting Rights Act cited here has since been narrowed by later Supreme Court decisions, so confirm current state and federal law before relying on anything stated here.

Background and statutory framework

Chapter 286 hospital districts are created by petition of the registered voters of the proposed territory. Health & Safety Code § 286.021. The petition goes to the county judge of each county involved, and if it is in order the commissioners court calls a creation election. Id. §§ 286.021, 286.023. Section 286.022(a)(7) requires the petition to show "the method by which the permanent directors will be elected, as provided by Subsection (c)," and section 286.022(c)(2) lists the methods: "at large, by place, or both, so that a specific number of directors are elected from each commissioner precinct and a specific number are elected at large." Section 286.042, which covers the initial directors' election and staggered terms, mirrors the same three schemes in its subsections (b), (c), and (d).

The opinion's key move was reading "by place" in chapter 286 more broadly than its narrowest usage. In some statutes "by place" denotes electing multiple candidates from the same territory by assigning numbered places, with all voters in the territory voting on each place. See Local Gov't Code § 21.001 (general-law municipality aldermen); Elec. Code § 275.003 (governing body in a city of 200,000 or more). But because section 286.022(c)(2)'s "both" option ties places to commissioner precincts (electing some directors from each precinct), "by place" in chapter 286 must also reach candidates elected from only a portion of the district, such as a single precinct or other subdivision. Read that way, electing every director "by place" from a distinct portion of the district is the equivalent of single-member-district election. See Avery v. Midland County, 390 U.S. 474 (1968) (describing single-member districts as electing each member of a governing body from a distinct portion of the unit's territory).

On the second question, the opinion found nothing requiring single member districts to be coterminous with commissioner precincts except in the "both" method. Several provisions confirmed that chapter 286 districts and their divisions need not be built from whole precincts: section 286.021 allows a district wholly in one county or spanning several counties; section 286.101 allows expansion by adding a "defined territory"; section 286.029 bars including territory already in another hospital district; and section 286.022(a)(3) requires the proposed boundaries to be described by metes and bounds or other sufficient legal description. The opinion noted, by footnote, that a county has four commissioner precincts. Tex. Const. art. V, § 18. Because chapter 286 requires an odd number of directors, section 286.022(c)(1), a district could not elect all directors from single member districts equal to its four precincts; it would need an odd number of single member districts instead.

The opinion closed by flagging the constitutional and statutory limits on districting. Whatever boundaries a hospital district draws are subject to one-person-one-vote and other requirements bearing on suffrage, including Voting Rights Act preclearance. Voting Rights Act, 42 U.S.C. § 1973c.

Common questions

Could a Chapter 286 hospital district elect all directors from single-member districts?
Yes. The opinion concluded a district could elect all of its directors "by place" from separate portions of the district, which is the same as electing them all from single member districts.

Did those single-member districts have to match the county commissioner precincts?
No. Only the combined "at large and by place" method tied places to commissioner precincts. When all directors are elected by place, the boundaries did not have to follow precinct lines.

Why did the number of directors have to be odd?
Because section 286.022(c)(1) allowed only an odd number of directors. A district electing all directors from single member districts therefore needed an odd number of those districts.

Why couldn't a county-wide district just use its four commissioner precincts?
Four is an even number, and the statute required an odd number of directors. So a county-wide district could not elect all its directors from four precinct-based single member districts.

Were there limits on how the boundaries could be drawn?
Yes. The opinion stressed that any single member district boundaries remained subject to one-person-one-vote and to Voting Rights Act preclearance by the United States Justice Department.

Citations

• Tex. Health & Safety Code §§ 286.021, 286.022, 286.023, 286.029, 286.042, 286.101
• Local Gov't Code § 21.001; Elec. Code § 275.003
• Tex. Const. art. V, § 18
• Voting Rights Act, 42 U.S.C. § 1973c
• Avery v. Midland County, 390 U.S. 474 (1968)
• Senate Bill 907, 71st Legislature (repealed by Acts 1991, 72d Leg., ch. 14, § 285(b)(8))

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0122
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1992/dm0122.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

June 1, 1992

Honorable John Hannah, Jr.
Secretary of State of Texas
P. O. Box 12697
Austin, Texas 78711-2697

Opinion No. DM-122

Re: Methods of electing hospital district directors under chapter 286 of the Health and Safety Code (RQ-367)

Dear Secretary Hannah:

You ask about the provisions of Senate Bill 907 of the 71st Legislature (repealed by Acts 1991, 72d Leg., ch. 14, § 285(b)(8)) which are now codified as chapter 286 of the Health and Safety Code. Chapter 286 provides for the creation of hospital districts pursuant to local petition and election. You seek clarification as to the methods of electing hospital district directors permitted by those provisions. Your specific questions are:

1. Whether, in a hospital district created under chapter 286, all directors may be elected from single member districts;

2. If so, whether such single member districts must be coterminous with county commissioners' precincts.

Creation of hospital districts under chapter 286 is initiated by the petition of registered voters of the territory of the proposed district. Health & Safety Code § 286.021. A petition is submitted to the county judge of each county in which the territory of the district is to be located, and if it is in order, the commissioners court calls an election on the issue of creation of the district. Id. §§ 286.021, 286.023. Subsection (a)(7) of section 286.022 requires the petition to show "the method by which the permanent directors will be elected, as provided by Subsection (c)." Subsection (c)(2) of section 286.022 provides for the petition's indicating:

the method by which directors are to be elected, whether at large, by place, or both, so that a specific number of directors are elected from each commissioner precinct and a specific number are elected at large.

Section 286.022(c)(2) appears to allow for three distinct schemes of electing chapter 286 hospital district directors: "at large, by place, or both" so that some are elected from commissioners precincts and some "at large." Section 286.042, in providing for initial directors' election and the staggering of their terms, again appears to provide for the three alternative schemes set out in section 286.022(c)(2): "at large" in subsection (b), "by place" in subsection (c), or "from commissioners precincts and at large" in subsection (d).

The terminology, "by place," is sometimes used to denote the scheme of electing multiple candidates from the same territory by assigning distinct "place" numbers to as many positions as are to be filled by the election. Candidates run and receive votes from the entire election territory "by place." Election "by place" in this sense permits the election of multiple candidates from the same territory by majority vote. See, e.g., Local Gov't Code § 21.001 (election of general-law municipality aldermen "by place"); Elec. Code § 275.003 ("by place" election of governing body in city of population of 200,000 or more).

The scope of the terminology "by place" in the above-quoted provisions of chapter 286, however, must not be limited to such a scheme whereby candidates for "places" are voted on by the entire election territory. The third alternative scheme of electing directors permitted under section 286.022(c)(2), election "both" at large and by place, means, by the terms of that provision, "that a specific number of directors are elected from each commissioner precinct and a specific number are elected at large." Election "by place" in that section, and in the chapter generally, must therefore encompass election of candidates from only a portion of the district, such as a county commissioners' precinct.

Your first question, again, is whether chapter 286 permits a district to elect all of its directors from "single member districts." The latter term clearly means the election of each of the members of a governing body from a distinct portion of the whole territory of the political unit over which that governing body has authority, see, e.g., Avery v. Midland County, 390 U.S. 474 (1968). Thus, with respect to a chapter 286 district, if each director were elected from a portion of the hospital district to a discreet "place," under the second alternative method of electing directors set out in sections 286.022(c)(2) and 286.042(c) as discussed above, such election method would be tantamount to electing all of the district's directors from single member districts.

We note, at this point, that chapter 286 permits only an odd number of directors to be elected. See Health & Safety Code § 286.022(c)(1). For all directors to be elected from single member districts, there would thus have to be an odd number of such single member districts. Determining whether a chapter 286 hospital district may elect all of its directors from single member districts thus raises the issue presented in your second question: whether a single member district -- or territory from which a "place" is filled, in the language of chapter 286 -- must be coterminous with commissioners precincts. If it must, then a hospital district could not elect all of its directors from single member districts unless it was composed of an odd number of commissioners precincts. In that case, a simple county-wide district could not elect all of its directors from single member districts because it would be restricted to four such single member districts, corresponding to the county's four commissioner precincts,[1] but, by the terms of the statute, would have to elect an odd number of directors.

We do not believe, however, in response to your second question, that a chapter 286 hospital district's single member districts -- that is, the territories from which "places" are filled -- must be coterminous with commissioners precincts. Although subsection (c)(2) of section 286.022 specifies that if both at large and "by place" methods are used, the candidates for places are to be elected from commissioners precincts, it does not limit the second alternative election method, the election of all directors "by place," to the use of commissioners precincts for the portions of the district from which candidates for such places are to be elected. Nor do we find any other provision of chapter 286 that does so.

Indeed, other provisions of chapter 286 are consistent with the proposition that "single member districts" within a chapter 286 district need not be coterminous with commissioners precincts. For example, section 286.021 provides that a district may be created "located wholly in one county" or "that contains territory located in more than one county"; these provisions do not indicate that districts must be coterminous with county or commissioners precinct lines. We note also that section 286.101 provides for the expansion of a district by the addition of a "defined territory" and section 286.029 provides that a district may not include territory already a part of another hospital district. These latter provisions appear to contemplate inclusion or exclusion from districts of areas not amounting to entire commissioners precincts, and thus the existence of districts not made up of entire commissioners precincts. Similarly, section 286.022, in providing for the contents of a petition, requires that the proposed boundaries of a district sought to be created be "designated by metes and bounds or other sufficient legal description," again, appearing to allow for districts composed other than of entire commissioners precincts. Id. § 286.022(a)(3).

[1] See Tex. Const. art. V, § 18.

In light of the foregoing, it is our opinion that chapter 286 districts may be created utilizing the method of electing all directors from single member districts. Where all directors are elected from such single member districts, the boundaries of the latter need not be drawn so as to be coterminous with county commissioners precincts. Of course, in drawing single member district boundaries, particular hospital districts will be subject to one-person-one-vote and other constitutional and statutory requirements bearing on suffrage. See Voting Rights Act, 42 U.S.C. § 1973c (requiring United States Justice Department preclearance of changes affecting voting).

                               SUMMARY

      Hospital districts created under chapter 286 of the Health and Safety Code may elect all district directors from single member districts. Where all directors are elected from single member districts, the boundaries of the latter need not be coterminous with county commissioners' precincts.

                                                 DAN MORALES
                                                 Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee