Can a Texas school board trustee also serve as a political party county chair?

Plain-English summary

The Commissioner of Education asked whether a member of a school district board of trustees may serve as a county or precinct chair of a political party, or run for the county chair position. The Attorney General concluded a trustee may do so.

The eligibility rule is Election Code section 161.005. To be a candidate for, or to serve as, a county or precinct chair, a person must be a qualified voter of the county and must not be a candidate for, or the holder of, "an elective office of the federal, state, or county government." A school district trustee holds an elective office, so the whole question turned on whether that office is an office "of the federal, state, or county government." It plainly is not a federal office, and the opinion explained that an independent school district is a quasi-municipal corporation that is part of the state government rather than the county government, so a trustee does not hold a county office either. That left only one possibility: is a trustee an officer "of the state government"?

The opinion answered no. It acknowledged that, in a general sense, courts have described public schools as part of the "state government," and that under Willis v. Potts a school official holds an office "under this state." But holding an office "under this state" is not the same as being "an officer of the state government." If the two meant the same thing, the separate reference to county offices in section 161.005 would be unnecessary, and courts must give effect to every word of a statute. To pin down the narrower phrase, the opinion looked to Government Code section 22.002(a), which uses almost the same language ("officer of state government") and which Texas courts had construed for over a century. Those cases held the phrase reaches only chief administrative officers, the heads of state departments and agencies charged with the general administration of state affairs, not every official at every level. Applying that reading, a school district trustee is not an "officer of state government," so section 161.005 did not bar a trustee from being a candidate for or serving as a county or precinct party chair.

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

The Commissioner and the Texas Education Agency (what the opinion held): The opinion held that Election Code section 161.005's bar on certain officeholders serving as a party county or precinct chair did not reach school district trustees, because a trustee does not hold an office of the federal, state, or county government within the meaning of that section.

School district trustees (what the opinion held): The opinion held that a trustee was eligible to be a candidate for, and to serve as, a county or precinct chair of a political party, while still holding the trustee position.

Political parties and county election officials (what the opinion held): The opinion held that a trustee's candidacy or service as a party chair was not disqualified under section 161.005, resolving the eligibility question that had been raised under older opinions interpreting a differently worded predecessor statute.

Common questions

Could a Texas school board member be a political party county chair in 2002?
Under this opinion, yes. The Attorney General concluded a school district trustee does not hold an office of the federal, state, or county government, so the disqualification in Election Code section 161.005 did not apply.

What does section 161.005 actually prohibit?
It says a person who is a candidate for, or holder of, an elective office of the federal, state, or county government cannot be a candidate for or serve as a county or precinct party chair. The chair must also be a qualified voter of the county.

Why isn't a school trustee an "officer of the state government"?
The opinion read that phrase using the long line of cases interpreting the same words in Government Code section 22.002(a). Those cases limit the phrase to chief administrative officers, the heads of state departments and agencies, not local officials such as school trustees.

Didn't an older opinion say otherwise?
An older opinion barred certain officeholders from serving as a party chair, but it interpreted a predecessor statute with broader language ("any office of profit or trust"). Section 161.005 uses the narrower "elective office of the federal, state, or county government," which the opinion concluded does not cover school trustees.

Background and statutory framework

Election Code section 161.005 sets the eligibility rules for a county or precinct chair of a political party: the person must be a qualified voter of the county and must not be a candidate for, or holder of, an elective office of the federal, state, or county government. Tex. Elec. Code Ann. § 161.005 (Vernon Supp. 2002). School district trustees hold elective office. Tex. Educ. Code Ann. § 11.052 (Vernon Supp. 2002); § 11.059(b) (Vernon 1996). The trustees of an independent school district are a body corporate with the exclusive power to govern the district's public schools, and the district is a quasi-municipal corporation that is part of the state government, not the county. Tex. Educ. Code Ann. § 11.151(a), § 11.151(b); Southwestern Broad. Co. v. Oil Ctr. Broad. Co., 210 S.W.2d 230, 233 (Tex. Civ. App.-El Paso 1947, writ ref'd n.r.e.); Univ. Interscholastic League v. Midwestern Univ., 255 S.W.2d 177, 183 (Tex. 1953); Mumme v. Marrs, 40 S.W.2d 31, 35 (Tex. 1931).

The opinion distinguished holding an office "under this state" from being an "officer of the state government." Willis v. Potts held that city council members are officers "under this state," but the opinion reasoned that if "officer of the state government" meant the same as office "under this state," the separate listing of county offices in section 161.005 would be surplusage, contrary to the rule that every word of a statute be given effect. Willis v. Potts, 377 S.W.2d 622, 625 (Tex. 1964); Perkins v. State, 367 S.W.2d 140, 146 (Tex. 1963). To construe the narrower phrase, the opinion relied on Government Code section 22.002(a), which uses similar language, and on the cases interpreting it. Tex. Gov't Code Ann. § 22.002(a) (Vernon Supp. 2002). Those cases hold that "officers of the state government" reaches only state officers charged with the general administration of state affairs, the heads of state departments. Betts v. Johnson, 73 S.W. 4 (Tex. 1903); In re Nolo Press/Folk Law, Inc., 991 S.W.2d 768, 776 (Tex. 1999). A school district trustee does not fit that description, so the opinion concluded a trustee is not barred by section 161.005 from being a party county or precinct chair.

Citations

Statutes:

• Tex. Elec. Code Ann. § 161.005 (Vernon Supp. 2002)
• Tex. Educ. Code Ann. § 11.052 (Vernon Supp. 2002); § 11.059(b), (c) (Vernon 1996); § 11.151(a), (b) (Vernon 1996)
• Tex. Gov't Code Ann. § 22.002(a) (Vernon Supp. 2002)

Cases:

• Southwestern Broad. Co. v. Oil Ctr. Broad. Co., 210 S.W.2d 230, 233 (Tex. Civ. App.-El Paso 1947, writ ref'd n.r.e.)
• Univ. Interscholastic League v. Midwestern Univ., 255 S.W.2d 177, 183 (Tex. 1953)
• Mumme v. Marrs, 40 S.W.2d 31, 35 (Tex. 1931)
• Willis v. Potts, 377 S.W.2d 622, 625 (Tex. 1964)
• Perkins v. State, 367 S.W.2d 140, 146 (Tex. 1963)
• Travis County v. Jourdan, 42 S.W. 543 (Tex. 1897)
• Betts v. Johnson, 73 S.W. 4 (Tex. 1903)
• Tex. Liquor Control Bd. v. Cont'l Distilling Sales Co., 199 S.W.2d 1009, 1012 (Tex. Civ. App.-Dallas 1947, writ ref'd n.r.e.)
• In re Nolo Press/Folk Law, Inc., 991 S.W.2d 768, 776 (Tex. 1999)

Prior Attorney General materials referenced: Tex. Att'y Gen. Op. Nos. H-698 (1975), H-876 (1976); Tex. Att'y Gen. LO-93-031.

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0537
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2002/jc0537.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS
JOHN CORNYN

August 7, 2002

Mr. Felipe T. Alanis Opinion No. JC-0537
Commissioner of Education
Texas Education Agency Re: Whether a member of a school district board
1701 North Congress Avenue of trustees may serve as a county or precinct chair
Austin, Texas 78701-1494 of a political party, or may be a candidate for the
position of county chair (RQ-0516-JC)

Dear Mr. Alanis:

Your predecessor in office requested our opinion as to whether a member of a school district board of trustees may serve as a county or precinct chair of a political party, or may be a candidate for the position of county chair. For the reasons set forth below, we conclude that a school district trustee may do so.

Section 161.005 of the Election Code provides, in relevant part:

            (a) To be eligible to be a candidate for or to serve as a county or precinct chair of a political party, a person must:

                    (1) be a qualified voter of the county; and

                    (2) not be a candidate for nomination or election to, or be the holder of an elective office of the federal, state, or county government.

TEX. ELEC. CODE ANN. § 161.005 (Vernon Supp. 2002) (emphasis added). Thus, in order to be eligible to serve as a county or precinct chair, or as a candidate for such position, an individual may not be, inter alia, a holder of "an elective office of the federal, state, or county government." Accordingly, we must determine whether a school district trustee holds "an elective office of the federal, state, or county government."

Initially, we note that a prior opinion of this office issued in 1975 held that section 3 of article 3.04 of the then-current Election Code, the predecessor statute to section 161.005, barred a mayor from serving as the county chair of a political party's executive committee. Tex. Att'y Gen. Op. No. H-698 (1975) at 4. The relevant statute at that time, however, read as follows:

            No one shall act as chairman or as member of any district, county or city executive committee of a political party who is not a qualified voter, or who is a candidate for public office, or who holds any office of profit or trust, either under the United States or this state, or any city or town in this state.

Act of June 2, 1969, 61st Leg., R.S., ch. 878, § 3, 1969 Tex. Gen. Laws 2662, 2664 (emphasis added). Another attorney general opinion found that a school district trustee, inter alia, held an office of trust under this state, and hence, was barred from serving as a political party chair. See Tex. Att'y Gen. Op. No. H-876 (1976) at 2.

Trustees of an independent school district hold elective office. See, e.g., TEX. EDUC. CODE ANN. § 11.052 (Vernon Supp. 2002) (method of election of board of trustees in districts that use single-member districts); § 11.059(b) (Vernon 1996) (elections for trustees with three-year terms shall be held annually); § 11.059(c) (elections for trustees with four-year terms shall be held biennially). Clearly, a school district trustee does not hold "an elective office of the federal government," and is not an officer of the county government. "The trustees of an independent school district constitute a body corporate . . . ." Id. § 11.151(a) (Vernon 1996). "The trustees as a body corporate have the exclusive power and duty to govern and oversee the management of the public schools of the district." Id. § 11.151(b). An independent school district is a "quasi-municipal corporation . . . entrusted with the duty of managing the schools to the extent of the power delegated . . . and is a part of the State Government." Southwestern Broad. Co. v. Oil Ctr. Broad. Co., 210 S.W.2d 230, 233 (Tex. Civ. App.-El Paso 1947, writ ref'd n.r.e.); see also Univ. Interscholastic League v. Midwestern Univ., 255 S.W.2d 177, 183 (Tex. 1953) (public schools are quasi-public entities and are subject to direct statutory control by the Legislature). "Under the Constitution, our public schools are essentially state schools, and authority to control their operation, except as otherwise prescribed, is included among the powers conferred upon the Legislature." Mumme v. Marrs, 40 S.W.2d 31, 35 (Tex. 1931). Unquestionably, then, a school district trustee does not hold "an office of the county government." The question that must be addressed is whether a school district trustee is "an officer of the state government."

As we have noted, judicial decisions have described the public school system as part of the "state government." In Willis v. Potts, 377 S.W.2d 622 (Tex. 1964), the Texas Supreme Court held that "Members of the City Council [of home rule cities] are Officers under this state within the meaning of Art. III, Sec. 19 of our State Constitution." Id. at 625. As this office stated in Letter Opinion 93-031, "[a]lthough Willis addressed article III, section 19 rather than article XVI, section 40, the court specifically determined that the office of city council member is one which is held 'under this state.'" Tex. Att'y Gen. LO-93-031, at 2. The opinion noted that, under the test of Willis v. Potts, a compensated school district employee holds "a position of profit under this state." Id. In our opinion, however, it does not follow that, merely because a school district trustee holds an office "under this state," he or she is thereby "an officer of the state government."

In the first place, under Willis v. Potts, a county officer also holds an office "under this state." If the meaning of "officer of the state government" is identical to holding an office "under this state," then the inclusion of "office of county government" in section 161.005 of the Election Code would have been unnecessary. We are obliged to give effect to every sentence, clause, phrase, and word of a statute, if it is reasonable and possible to do so. Perkins v. State, 367 S.W.2d 140, 146 (Tex. 1963).

The only other statute that uses language similar to that found in section 161.005 of the Election Code is section 22.002 of the Government Code. It provides, in relevant part:

            (a) The supreme court or a justice of the supreme court may issue writs of procedendo and certiorari and all writs of quo warranto and mandamus agreeable to the principles of law regulating those writs, against a statutory county court judge, a statutory probate court judge, a district judge, a court of appeals or a justice of a court of appeals, or any officer of state government except the governor, the court of criminal appeals, or a judge of the court of criminal appeals.

TEX. GOV'T CODE ANN. § 22.002(a) (Vernon Supp. 2002) (emphasis added). This provision has been construed by Texas courts on several occasions. More than a century ago, the predecessor of section 22.002(a) stated that the Supreme Court "may issue [various] writs . . . against any district judge or officer of the state government, except the governor of the state." Travis County v. Jourdan, 42 S.W. 543 (Tex. 1897) (citing former article 946). In Betts v. Johnson, 73 S.W. 4 (Tex. 1903), the Supreme Court declared:

            The words "officers of the state government" are of a very indefinite meaning. All county and district officers are officers of the state government in a general sense, but we have held that they are not such within the meaning of the statute in question . . . . It would seem, however, that it was the purpose of the Legislature to include only such state officers as are charged with the general administration of state affairs, namely, the heads of the state departments.

Id. at 4-5. Construing an amended version of this statute, a subsequent court said that "a State officer is one whose jurisdiction, duties and functions are coextensive with the State, and who receives his authority under the State laws and performs some of the governmental functions of the State." Tex. Liquor Control Bd. v. Cont'l Distilling Sales Co., 199 S.W.2d 1009, 1012 (Tex. Civ. App.-Dallas 1947, writ ref'd n.r.e). In 1999, the Supreme Court construed the present version of section 22.002(a) and concluded:

            We have construed this phrase ["issue writs of mandamus against 'any officer of state government except the governor'"] to refer, not to every State official at every level, but only to chief administrative officers - the heads of State departments and agencies who are charged with the general administration of State affairs.

In re Nolo Press/Folk Law, Inc., 991 S.W.2d 768, 776 (Tex. 1999).

In our view, the use of the term "officer of state government" in section 22.002(a) of the Government Code is sufficiently similar to the phrase "office of the . . . state . . . government" in section 161.005 of the Election Code that we can reasonably rely on the cases interpreting the former to construe the latter. We find therefore that a member of a school district board of trustees does not hold an "office of the state government." Accordingly, he or she is not prohibited by section 161.005 of the Election Code from being a candidate for, or serving in the position of, county or precinct chair of a political party.

                                    SUMMARY

            A member of a school district board of trustees does not hold an "office of the state government." Accordingly, he or she is not prohibited by section 161.005 of the Election Code from being a candidate for, or serving in the position of, county or precinct chair of a political party.

                                           Very truly yours,

                                           JOHN CORNYN
                                           Attorney General of Texas

HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee