Can a Texas school board put term limits on its own trustees through a governance policy, without a state law authorizing it?

Plain-English summary

The chair of the Texas House Elections Committee asked the AG a clean question: can a school board, on its own, adopt term limits for its trustees as part of the district's governance policy? The question came up because several bills over recent sessions had proposed giving boards that specific power, which suggested the Legislature was not sure boards already had it. School boards do have wide governing authority, so the chair wanted to know whether term-limit authority has to be spelled out in a statute or whether it falls within a board's general powers.

The AG concluded a court would likely hold that boards cannot do this on their own. The Education Code gives trustees the exclusive power to govern and oversee the management of the district's public schools, and reserves to them all powers not delegated to the state agency or State Board of Education, plus the power to adopt rules and bylaws to carry out those duties. But school districts are creatures of the Legislature, and their trustees have only the powers expressly conferred or necessarily implied. The real question, the AG said, was whether the power to manage the district carries the power to regulate who may run for and hold the office of trustee, and that is a different thing.

A term limit functions as an added eligibility requirement for the office. The Election Code sets the general qualifications to run for public office, and the Education Code adds that a trustee must be a qualified voter and file an oath. The Legislature gave boards limited discretion over the number of trustees, how they are elected, and the length of terms, but nowhere gave them authority to add eligibility requirements. The AG contrasted that silence with home-rule cities, which the Legislature expressly authorized to prescribe the qualifications, duties, and tenure of their officers, a power courts have read to include term limits. Because Texas law strictly construes any restriction on the right to hold office against ineligibility, and because letting boards add eligibility rules would let them limit who can serve in ways well beyond term limits, the AG concluded a board's general governing power could not be stretched to allow self-imposed trustee term limits.

Currency note

This opinion was issued in 2018. 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.

What the opinion meant for those who asked

The requesting legislator and the Legislature (as the opinion described them): The opinion treated the authority to set trustee eligibility, including term limits, as belonging to the Legislature, not to local boards. It noted the repeated bills proposing to grant boards that power as a sign the authority did not already exist, leaving the matter to be fixed by statute if the Legislature chose.

School boards and trustees (as the opinion described them): The opinion told boards that their broad governing and rulemaking power did not reach the question of who may run for and hold trustee office. A board could not, under the AG's reading, adopt term limits for its trustees as a governance policy without statutory authority.

Voters and candidates (as the opinion described them): The opinion framed candidate eligibility rules as affecting not just candidates but, to a degree, the right to vote and to associate for political ends, which is why Texas law strictly construes restrictions on holding office against ineligibility.

Common questions

Can a Texas school board set term limits for its own trustees?
According to the AG, not on its own. A court would likely conclude that the board's general power to govern and manage the district does not include authority to add eligibility requirements like term limits for the office of trustee.

Why isn't that covered by a board's broad governing powers?
Because regulating who may run for and hold an office is treated as separate from managing the district. School boards have only the powers expressly conferred or necessarily implied, and no statute delegates them the power to add candidate eligibility requirements.

Who can set qualifications for the office of trustee?
The Legislature. The Election Code and Education Code fix the general qualifications, and the AG read the power to add to them as belonging to the Legislature, not local boards.

Why can home-rule cities set term limits but school boards can't?
Because the Legislature expressly authorized home-rule municipalities to prescribe the qualifications, duties, and tenure of their officers, and courts read that to include term limits. There is no parallel grant to school boards, and the AG treated that silence as significant.

Background and statutory framework

The Education Code assigns trustees the duty to oversee the management of the district (Tex. Educ. Code § 11.051(a)(1)) and gives the board, as a body corporate, the exclusive power to govern and oversee the management of the district's public schools, reserving to trustees all powers not delegated to the state agency or the State Board of Education, plus the power to adopt rules and bylaws to carry out those duties (id. § 11.151(b), (d)). Courts recognize a board as the final policymaking authority for its district (Jett v. Dallas Indep. Sch. Dist., 7 F.3d 1241, 1245 (5th Cir. 1993)), but districts are creatures of the Legislature whose trustees have only powers expressly conferred or necessarily implied (Tex. Roofing Co. v. Whiteside, 385 S.W.2d 699, 701 (Tex. Civ. App.-Amarillo 1964, writ ref'd n.r.e.); Clint Indep. Sch. Dist. v. Marquez, 487 S.W.3d 538, 548 (Tex. 2016)).

The AG treated a term limit as an added eligibility requirement (Austin Police Ass'n v. City of Austin, 71 S.W.3d 885, 890 (Tex. App.-Austin 2002, no pet.)). General candidate qualifications appear in Election Code section 141.001(a)(1), (2), (5), with disqualifications in section 141.001(a)(3), (4); the Education Code adds only that a trustee must be a qualified voter and file an oath (Tex. Educ. Code § 11.061(a)-(b)). The Legislature gave boards limited discretion over board size (id. § 11.051(c)), method of election (id. §§ 11.052(a), 11.054(a)), and term length (id. § 11.059(a)), and listed board duties including conducting elections as required by law (id. § 11.1511(b)(12)), but did not delegate authority to add eligibility requirements. The opinion contrasted that with the express power of home-rule municipalities to set officer qualifications and tenure (Tex. Loc. Gov't Code § 26.041(3); Dutmer v. City of San Antonio, 937 F. Supp. 587, 595 (W.D. Tex. 1996)). Citing the rule that restrictions on holding office are strictly construed against ineligibility (State v. Hodges, 92 S.W.3d 489, 494-95, 497 (Tex. 2002)) and an older decision holding a commissioners court could not add to candidate qualifications fixed by the Legislature (Brown v. Meeks, 96 S.W.2d 839, 842 (Tex. Civ. App.-San Antonio 1936, writ dism'd)), the AG concluded boards lack authority to adopt trustee term limits.

Citations

Cases:

• Jett v. Dallas Indep. Sch. Dist., 7 F.3d 1241, 1245 (5th Cir. 1993)
• Tex. Roofing Co. v. Whiteside, 385 S.W.2d 699, 701 (Tex. Civ. App.-Amarillo 1964, writ ref'd n.r.e.)
• Clint Indep. Sch. Dist. v. Marquez, 487 S.W.3d 538, 548 (Tex. 2016)
• Austin Police Ass'n v. City of Austin, 71 S.W.3d 885, 890 (Tex. App.-Austin 2002, no pet.)
• Dutmer v. City of San Antonio, 937 F. Supp. 587, 595 (W.D. Tex. 1996)
• Brown v. Meeks, 96 S.W.2d 839, 842 (Tex. Civ. App.-San Antonio 1936, writ dism'd)
• State v. Hodges, 92 S.W.3d 489, 497 (Tex. 2002)

Statutes:

• Tex. Educ. Code §§ 11.051, 11.052, 11.054, 11.059, 11.061, 11.151, 11.1511(b)(12)
• Tex. Elec. Code § 141.001
• Tex. Loc. Gov't Code § 26.041(3)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0196
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2018/kp0196.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

May 7, 2018

The Honorable Jodie Laubenberg Opinion No. KP-0196
Chair, Committee on Elections
Texas House of Representatives Re: Whether a school board of trustees may
Post Office Box 2910 establish term limits for trustees as part of the
Austin, Texas 78768-2910 district's governance policy (RQ-0191-KP)

Dear Representative Laubenberg:

    You ask whether a school board of trustees may establish term limits for trustees as part of the district's governance policy. [1] You inform us that several bills filed in recent legislative sessions proposed granting school boards the specific authority to adopt term limits for their trustees. [2] Because school boards possess broad powers of governance and rulemaking, you ask whether the authority to adopt trustee term limits must be stated specifically in a statute. Request Letter at 1-2.

   The Education Code assigns trustees of an independent school district board the duty to "oversee the management of the district." TEX. EDUC. CODE § 11.051(a)(1). To fulfill that duty, the Legislature granted school boards broad power:

              (b) 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. All powers and duties not specifically delegated by statute to the agency or to the State Board of Education are reserved for the trustees ....

              (d) The trustees may adopt rules and bylaws necessary to carry out the powers and duties provided by Subsection (b).

Id. § 11.151(b), (d). Within this broad grant of authority, a school board possesses the final policy-making authority for its district. Jett v. Dallas Indep. Sch. Dist., 7 F.3d 1241, 1245 (5th Cir. 1993). Nevertheless, school districts are creations of the Legislature, and their trustees "possess only the powers expressly conferred on them by law or necessarily implied from the powers so conferred." Tex. Roofing Co. v. Whiteside, 385 S.W.2d 699, 701 (Tex. Civ. App.-Amarillo 1964, writ ref'd n.r.e.); see also Clint Indep. Sch. Dist. v. Marquez, 487 S.W.3d 538, 548 (Tex. 2016) ("[I]t is the Legislature ... that imposes legal obligations on districts."). Thus, the legal inquiry becomes whether the school board's power to oversee the management of the district and to govern and oversee the management of the schools of the district carries with it the authority to regulate who may run for and hold the office of trustee. See TEX. EDUC. CODE §§ 11.051(a)(1), .151.

    A law imposing term limits adds an additional eligibility requirement for running for a particular office. See Austin Police Ass'n v. City of Austin, 71 S.W.3d 885, 890 (Tex. App.-Austin 2002, no pet.). Section 141.001 of the Election Code establishes the general eligibility requirements to be a candidate for public office in Texas, such as citizenship, age, and residence. TEX. ELEC. CODE § 141.001(a)(1), (2), (5). The statute also includes disqualifications such as mental incapacity or conviction of a felony. Id. § 141.001(a)(3), (4). Section 11.061 of the Education Code, concerning the qualification of trustees, adds only that a "person may not be elected trustee of an independent school district unless the person is a qualified voter," and must file an official oath. TEX. EDUC. CODE § 11.061(a)-(b).

     In chapter 11, subchapter C of the Education Code, the Legislature granted school boards limited discretion with respect to the number of trustees on a board, how they are elected, and the length of their terms of office. Id. §§ 11.051(c) (allowing boards with three or five members to increase the membership to seven), 11.052(a) (allowing election of trustees by single member district or at large), 11.054(a) (allowing election by cumulative voting procedures), 11.059(a) (allowing terms of three or four years). Subchapter D lists specific powers and duties of the board of trustees, which include the duty to "conduct elections as required by law," but does not otherwise address the election or qualification of trustees. Id. § 11.1511(b)(12). In sum, while the statutes establish eligibility requirements for the office of trustee and specify a board's discretion concerning election and service matters, no statute delegates authority to school boards to establish additional eligibility requirements for the office of trustee. This legislative silence contrasts with the authority expressly granted to home-rule municipalities to "prescribe the qualifications, duties, and tenure of office for [municipal] officers." TEX. LOC. GOV'T CODE § 26.041(3); see also Austin Police Ass'n, 71 S.W.3d at 888 n.7 (construing this power as authorizing home-rule municipalities to establish term limits for its officers); Dutmer v. City of San Antonio, 937 F. Supp. 587, 595 (W.D. Tex. 1996) (same).

     A school board's authority to oversee the management of the district and to govern and manage district schools may be broad, but the authority to regulate who may run for and hold the office of trustee belongs to the Legislature. Addressing a similar question from a commissioners court, one Texas court explained that "[t]he Legislature of this state has fixed the qualifications of candidates for [local office], and the commissioners' court cannot add to or take from these qualifications." Brown v. Meeks, 96 S.W.2d 839, 842 (Tex. Civ. App.-San Antonio 1936, writ dism'd). If a school board's general governing powers authorized it to establish additional eligibility requirements for its members, it could add other limitations, not only term limits, that could significantly restrict who is eligible to serve on the board. Candidate eligibility requirements impact not only candidates, but also "at least to some degree-the individual's right to vote and his right to associate with others for political ends." State v. Hodges, 92 S.W.3d 489, 497 (Tex. 2002) (quotation marks omitted). Therefore, to safeguard these rights, Texas law requires that "any statutory provision that restricts the right to hold office must be strictly construed against ineligibility." Id. at 494-95. A court applying that principle here would likely conclude that the statutory grant of general governing power to independent school district boards cannot be construed as authorizing the boards to adopt term limits for their trustees.

                                 SUMMARY

                  A court would likely conclude that the statutory grant of general governing power to independent school district boards does not authorize the boards to adopt term limits for their trustees.

                                       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

[1] See Letter from Honorable Jodie Laubenberg, Chair, House Elections Comm., to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Nov. 9, 2017), https://www.texasattorneygeneral.gov/opinion/requests-for-opinions-rqs ("Request Letter").

[2] Id. (referencing Tex. H.B. 467, 81st Leg., R.S. (2009), Tex. H.B. 564, 83d Leg., R.S. (2013), Tex. H.B. 1493, 84th Leg., R.S. (2015), Tex. S.B. 1677, 84th Leg., R.S. (2015), Tex. H.B. 154, 85th Leg., R.S. (2017), Tex. H.B. 930, 85th Leg., R.S. (2017), Tex. S.B. 110, 85th Leg., R.S. (2017), Tex. S.B. 1884, 85th Leg., R.S. (2017)).