Dear Superintendent:

As you will recall, the Attorney General issued Opinion GA-0535. (School districts must “hold trustee elections as a joint election on the same uniform election date as the election for members of the governing body of a municipality located in the school district or the general election for state and county officers. If a school district with three-year trustee terms cannot comply with the election requirements stated in Section 11.0581, it must change to four-year trustee terms.”) The Opinion is contrary to FAQs the Secretary of State previously issued. The following is copy of a letter that the Secretary of State’s office has sent to several school districts:

Thank you for your inquiry about the recent attorney general opinion, GA-0535, dated April 4, 2007, concerning House Bill 1, Third Called Session, 2006, which added Section 11.0581 to the Education Code. Ultimately, the attorney general is the authority to speak in further detail about questions raised by the opinion; however, in light of our advisory authority, we have been asked for direction as to the actions a school district should take with respect to the May 12, 2007, election already underway.

Your conversation with staff at the U.S. Department of Justice reflects our understanding of recent conversations between our staff and the Department. The attorney general opinion represents a change from current plans for implementation of the new law; the change will need to be submitted by the Secretary of State, and our office plans to do so shortly. As you know, pursuant to Section 5 of the Voting Rights Act, 42 U.S.C. § 1973, a change in a voting practice or procedure may not be implemented in this state until the change is approved by the U.S. Department of Justice or the United States District Court for the District of Columbia. As GA-0535 has not yet received preclearance, the changes cannot be implemented. Accordingly, our advice to school districts is to proceed with their current plans for the May 12, 2007, election.

In addition, Texas case law generally holds that once an election has been ordered and has begun, there is no authority to enjoin or cancel the election. Blum v. Lanier, 997 S.W.2d 259 (Tex. 1999), citing with approval City of Austin v. Thompson, 147 Tex. 639, 219 S.W.2d 57, 59 (1949) (district court is without authority to enjoin even a void election); Ex parte Barrett, 120 Tex. 311, 37 S.W.2d 741, 742 (1931) (injunction against holding an election is outside the general scope of judicial power); City of Dallas v. Dallas Consol. Elec. St. Ry. Co., 105 Tex. 337, 148 S.W. 292, 295 (1912) (declined to enjoin canvassing of votes on ground that election was illegal); Leslie v. Griffin, 25 S.W.2d 820, 821-22 (Tex. Comm’n App.1930, judgm’t adopted) (same); Winder v. King, 1 S.W.2d 587, 587-88 (Tex. Comm’n App.1928, judgm’t adopted) (refused to enjoin official from calling election); City of McAllen v. Garza, 869 S.W.2d 558, 561 (Tex.App. — Corpus Christi 1993, writ denied) (refused to enjoin allegedly void election); Kolsti v. Guest, 565 S.W.2d 556, 557 (Tex.Civ.App. — Austin 1978, no writ) (declined to enjoin official from placing referendum on ballot); Ellis v. Vanderslice, 486 S.W.2d 155, 159-60 (Tex.Civ.App. — Dallas 1972, no writ) (declined to enjoin official from certifying petition for local option election); Stroud v. Stiff, 465 S.W.2d 407, 408 (Tex.Civ.App. — Amarillo 1971, no writ) (refused to enjoin city for proceeding under election resolution). See also Purcell v. Gonzalez, 127 S.Ct. 5 (2006). The cases address judicial authority to halt an election; we think the same principle applies to the advisory opinion of a state agency such as our office or the attorney general.

As to your questions about certain issues affecting clients and May 2008 elections, we respectfully note that the main question before the attorney general concerned the impact of a move to the November election date in an even-numbered year. Although there was discussion along similar lines about use of the May election date, the nature of the opinion process is to focus on the question and facts presented. We do not think it is advisable to speculate in detail as to how the attorney general would have addressed a number of issues related to the May election date. As to the future of your elections after the May 12, 2007 election, we note that as the legislature is currently in session, there may be changes enacted this session that might affect the law as it applies to elections after the May 2007 date. After the session concludes, and after GA-0535 is precleared, we will need to re-evaluate our advice for future elections.

In sum, we are advising school districts to continue with their plans for conducting their May 12, 2007, election. Once the GA-0535 opinion has been precleared and the 2007 legislative session is finished, we will review the status of the law for future elections. I hope you find this information helpful.

Ann McGeehan, Director
Elections Division

Texas Secretary of State