When can a Texas school board hold a special election to fill a trustee vacancy if no date fits the 180-day deadline?

Plain-English summary

Ana Markowski Smith, the Val Verde County attorney, asked the AG a timing question about filling a school board seat. A member of the San Felipe Del Rio Consolidated Independent School District's board of trustees retired in October 2015, leaving a vacancy in a term that did not expire until May 2018. Because more than a year remained in the term, Education Code section 11.060(d) said the vacancy had to be filled within 180 days, which worked out to April 11, 2016. The county attorney wanted to know whether the board could instead hold a special election on a uniform election date that landed after that 180-day deadline.

The AG walked through how the two statutes fit together. Section 11.060 lets a board fill a vacancy either by appointment or by ordering a special election, and a special election is run like the district's general election except as the Election Code provides otherwise. The Election Code applies to all elections in the state and generally supersedes conflicting outside statutes. It also limits general and special elections to a handful of uniform election dates and requires that a special election to fill a vacancy be held on the first authorized uniform date occurring on or after the 46th day after the election is ordered. After the October 2015 resignation, the next two uniform dates were November 3, 2015, and May 7, 2016. November 3 was too soon to order the election with the required lead time, and May 7 was after the 180-day window.

That conflict is what Election Code section 41.004(a) is designed to resolve. It says that when an outside law requires a special election within a particular period, but no uniform election date within that period gives enough time to hold the election in the manner the law requires, the election is held on the first authorized uniform date after the period expires. Section 11.060(d) is exactly that kind of outside law, and no qualifying uniform date fell inside the 180 days. So the AG concluded the district could properly hold its special election on May 7, 2016, the first uniform date after the period ended. The AG also noted, in a footnote, that the word "shall" in the 180-day provision is sometimes read as directory rather than mandatory when a statute sets a time for action without restricting action at a different time or providing consequences.

Currency note

This opinion was issued in 2016. 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. The Education Code and Election Code provisions on vacancies, uniform election dates, and special-election timing may have been amended since this opinion issued, so confirm the current deadlines and dates before relying on the specifics here.

What the opinion meant for those who asked

The requesting county attorney (as the opinion described it): The opinion answered that yes, the district could hold its special election on a uniform election date after the 180-day window. It explained that Education Code section 11.060 authorizes filling a vacancy by special election within 180 days, and that when no uniform date within that window affords enough time to hold the election in the manner required by law, Election Code section 41.004(a) authorizes the board to hold the election on the first authorized uniform date following the period.

The school district board of trustees (as the opinion described it): The opinion described the board's path to a valid special election on May 7, 2016, the first uniform date after the 180-day period, given that the only earlier uniform date (November 3, 2015) did not leave enough time to order the election with the required 46-day lead. It noted the Secretary of State's office had taken the same position that section 41.004 supersedes the Education Code deadline to the extent of any conflict.

District voters (as the opinion described it): The opinion treated the May 7 special election as the lawful mechanism for voters to fill the trustee seat, reconciling the 180-day fill deadline with the uniform-election-date rules rather than forcing the board into an appointment.

Common questions

Can a Texas school board hold a special election after the 180-day deadline to fill a vacancy?
Yes, in the situation the opinion addressed. When no uniform election date within the 180-day window gives enough time to hold the election the way the law requires, Election Code section 41.004(a) lets the board hold the special election on the first authorized uniform date after the period expires.

Why couldn't the district just use an earlier election date?
The opinion explained that the only uniform date inside the window, November 3, 2015, did not leave enough time after the October resignation to order the election with the required 46-day lead under Election Code section 201.052(a). The next uniform date, May 7, 2016, fell just past the 180-day deadline.

Does a board have to hold an election, or can it appoint someone?
Under Education Code section 11.060, a board may fill a vacancy either by appointment until the next trustee election or by ordering a special election. The opinion addressed the special-election route the district chose.

Is the 180-day deadline mandatory?
The opinion noted in a footnote that while "shall" is generally mandatory, courts sometimes read such a timing provision as directory, particularly when the statute sets a time for action without restricting action at a different time or providing consequences for missing it. The opinion resolved the question through section 41.004(a) rather than deciding the mandatory-versus-directory issue.

Background and statutory framework

Education Code section 11.060 lets the remaining trustees of an independent school district fill a vacancy by appointment until the next trustee election, or order a special election to fill the vacancy, conducted in the same manner as the district's general election except as provided by the Election Code; if more than one year remains in the term, the vacancy must be filled not later than the 180th day after it occurs (Tex. Educ. Code § 11.060(a), (c), (d)). The Election Code applies to all general, special, and primary elections in the state and supersedes a conflicting statute outside the code unless a statute expressly provides otherwise (Tex. Elec. Code § 1.002(a), (b)).

The Election Code designates the uniform election dates (the first Saturday in May in an odd-numbered year; the first Saturday in May in an even-numbered year for a political subdivision other than a county; and the first Tuesday after the first Monday in November), and each general or special election must be held on one of those dates except as otherwise provided (Tex. Elec. Code § 41.001(a)). A special election to fill a vacancy generally must be held on the first authorized uniform date occurring on or after the 46th day after the election is ordered (Tex. Elec. Code § 201.052(a)). When an outside law requires a special election within a particular period but no uniform date within that period affords enough time to hold the election in the manner required by law, the election is held on the first authorized uniform date after the period expires (Tex. Elec. Code § 41.004(a)).

On the mandatory-versus-directory question, while "shall" is generally construed as mandatory, it is sometimes held directory, particularly where a statute sets a time for action without restraining the action's performance after that time or providing consequences (Lewis v. Jacksonville Bldg. & Loan Ass'n, 540 S.W.2d 307, 310 (Tex. 1976); Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 495 (Tex. 2001); Burton v. Ferrill, 531 S.W.2d 197, 198-99 (Tex. Civ. App.-Eastland 1975, writ dism'd)).

Citations

Statutes:

• Tex. Educ. Code § 11.060(a), (c), (d) (filling school board vacancies)
• Tex. Elec. Code § 1.002(a), (b) (Election Code supersedes conflicting outside statutes)
• Tex. Elec. Code § 41.001(a) (uniform election dates)
• Tex. Elec. Code § 41.004(a) (special election after the required period)
• Tex. Elec. Code § 201.052(a) (46-day ordering requirement)

Cases:

• Lewis v. Jacksonville Bldg. & Loan Ass'n, 540 S.W.2d 307 (Tex. 1976)
• Helena Chem. Co. v. Wilkins, 47 S.W.3d 486 (Tex. 2001)
• Burton v. Ferrill, 531 S.W.2d 197 (Tex. Civ. App.-Eastland 1975, writ dism'd)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0102
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2016/kp0102.pdf

Original opinion text

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

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

July 13, 2016

The Honorable Ana Markowski Smith Opinion No. KP-0102
Val Verde County Attorney
207 East Losoya Street Re: Whether a school district board of trustees
Del Rio, Texas 78840 may fill a vacancy through a special election on
a uniform election date more than 180 days from
the onset of the vacancy (RQ-0091-KP)

Dear Ms. Smith:

   You ask whether an independent school district board of trustees may fill a vacancy through a special election on a uniform election date more than 180 days from the onset of the vacancy. [1] You state that a member of the board of trustees of the San Felipe Del Rio Consolidated Independent School District (the "District") retired on October 14, 2015, creating a vacancy in a term that does not expire until May 2018. Request Letter at 1. Section 11.060 of the Education Code provides:

             (a) If a vacancy occurs on the board of trustees of an independent
                 school district, the remaining trustees may fill the vacancy by
                 appointment until the next trustee election.

             (c) Instead of filling a vacancy by appointment under Subsection (a)
                 ... , the board or municipal governing body may order a special
                 election to fill the vacancy. A special election is conducted in
                 the same manner as the district's general election except as
                 provided by the Election Code.

             (d) If more than one year remains in the term of the position vacated,
                 the vacancy shall be filled under this section not later than the
                 180th day after the date the vacancy occurs.

TEX. EDUC. CODE § 11.060. Thus, the statute authorizes appointment and special election as alternative methods of filling a vacancy. Id. § 11.060(a), (c). Here, because the trustee resigned with more than a year remaining in his term, subsection (d) creates a period for filling the vacancy of 180 days from October 14, 2015, or until April 11, 2016. Id. § 11.060(d); see Request Letter at 1. [2]

    Subsection 11.060(c) recognizes that there may be exceptions in the Election Code pertaining to the district's conducting a special election. See TEX. EDUC. CODE § 11.060(c). The Election Code "applies to all general, special, and primary elections held in this state" and "supersedes a conflicting statute outside" of the Election Code unless a statute expressly provides otherwise. TEX. ELEC. CODE § 1.002(a), (b). Subsection 41.001(a) of the Election Code designates uniform election dates:

              (1) the first Saturday in May in an odd-numbered year;

              (2) the first Saturday in May in an even-numbered year, for an
                  election held by a political subdivision other than a county; or

              (3) the first Tuesday after the first Monday in November.

Id. § 41.001(a). "[E]ach general or special election in this state" must be held on one of these dates "[e]xcept as otherwise provided" by chapter 41, subchapter A of the Election Code. Id. After the trustee's resignation in October 2015, the next two uniform election dates were November 3, 2015, and May 7, 2016. Id.; Request Letter at 2-3. The November 3 date, however, would not have allowed enough time after the resignation to issue an order sufficiently in advance of the election as required by subsection 201.052(a) of the Election Code. TEX. ELEC. CODE § 201.052(a) (generally requiring a special election to fill a vacancy to "be held on the first authorized uniform election date occurring on or after the 46th day after the date the election is ordered"). A special election ordered earlier than 46 days before the May 7 uniform election date would comport with subsection 201.052(a) of the Election Code. Id. [3] But an election on May 7 would not have filled the vacancy on the Board within 180 days of the onset of the vacancy as specified by subsection 11.060(d) of the Education Code. See TEX. EDUC. CODE § 11.060(d); Request Letter at 1.

    Subsection 41.004(a) of the Election Code addresses potential difficulties with conducting a special election within a particular statutory period:

               (a) If a law outside this code ... requires a special election subject
                   to Section 41.001(a) to be held within a particular period after
                   the occurrence of a certain event, the election shall be held on an
                   authorized uniform election date occurring within the period
                   unless no uniform election date within the period affords enough
                   time to hold the election in the manner required by law. In that
                   case, the election shall be held on the first authorized uniform
                   election date occurring after the expiration of the period.

TEX. ELEC. CODE § 41.004(a). Subsection 11.060(d) of the Education Code is a law outside of the Election Code that "requires a special election ... to be held within a particular period after the occurrence of a certain event," that is, within 180 days from the occurrence of a vacancy on a board of trustees. Id.; see TEX. EDUC. CODE § 11.060(d). As discussed above, "no uniform election date within the [180-day] period affords enough time to hold the election in the manner required by law." TEX. ELEC. CODE § 41.004(a). Therefore, subsection 41.004(a) of the Election Code authorizes a special election to fill the vacancy on the Board "on the first authorized uniform election date occurring after the expiration of the [180-day] period," which was May 7, 2016. Id. [4]

[1] Letter from Honorable Ana Markowski Smith, Val Verde Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Jan. 20, 2016), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] Subsection 11.060(d) states that the vacancy "shall" be filled within the 180-day period. TEX. EDUC. CODE § 11.060(d). While the word "shall" is generally construed as mandatory, it is sometimes held to be directory, particularly when a statute sets a time for taking some action but does not restrict or provide consequences for taking the action at a different time. Lewis v. Jacksonville Bldg. & Loan Ass'n, 540 S.W.2d 307, 310 (Tex. 1976); see also Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 495 (Tex. 2001) ("If a provision requires that an act be performed within a certain time without any words restraining the act's performance after that time, the timing provision is usually directory."); Burton v. Ferrill, 531 S.W.2d 197, 198-99 (Tex. Civ. App.-Eastland 1975, writ dism'd) (determining that a statute providing that temporary directors "shall" be appointed on a certain date was directory with respect to the date of appointment).

[3] The Board's February 15, 2016 order to hold a special election on May 7, 2016 to fill Place 1 on the board is posted on the District's website. See http://www.sfdr-cisd.org/sites/default/files/Order%20of%20Election%20For%20Other%20Political%20Subdivisions%20Place%201.pdf.

[4] A brief submitted by the Office of the Texas Secretary of State states that "it is this Office's position that Section 41.004 of the Texas Election Code supersedes [section 11.060(d)] of the Education Code to the extent of any conflict, and it is permissible for [the District] to hold its special election on May 7, 2016." Letter from Ms. Lindsey Wolf, Gen. Counsel, Office of the Tex. Sec'y of State, to Honorable Ken Paxton, Tex. Att'y Gen. at 4 (Feb. 24, 2016). The brief also discusses other election issues, but because the issues are beyond the scope of your question, we do not address them in this opinion.

                                 SUMMARY

                  Subsection 11.060 of the Education Code authorizes a board
          of trustees of an independent school district to fill a vacancy within
          180 days of the occurrence of the vacancy by special election. If no
          uniform election date falls during the 180-day period that would
          afford enough time to hold a special election in the manner required
          by law, subsection 41.004(a) of the Election Code authorizes the
          board to hold the special election on the first authorized uniform
          election date following the 180-day period.

                                         Very truly yours,

                                         KEN PAXTON
                                         Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee