Karen Kidd Jun. 29, 2016, 10:56am


AUSTIN – Two separate opinions have been issued this month by Texas Attorney General Warren Kenneth "Ken" Paxton Jr's office, both in response to separate requests from former Commissioner of Education Michael Williams.

The opinions, both issued June 20, were addressed to the present Commissioner of Education Mike Morath.

The first opinion concerns the application of the state's Education Code to a board of managers in specific circumstances.

"I seek to resolve two issues," Williams said in his Dec. 21, 2015 letter to the attorney general's office. "First, which provisions of section 39.112 of the Education Code govern the period of appointment and removal of a board of managers currently in place in Beaumont Independent School District law in effect prior to June 19, 2015; the provisions of House Bill 3106; the provisions of House Bill 1842; or some interpretation of the various provisions of HB 1842 and HB 3106? Second, for future placement of a board of managers, may the provisions regarding terms of board of managers from HB 1842 and HB 3106 be harmonized, and if not, in determining latest in date of enactment what rules apply under section 311.025 of the Government Code when two bills both satisfy all the statutory tests for last in enactment?"

In part of the six-page opinion, the attorney general's office referred to Subsection 39.l 12(e) of the Education Code, as amended by House Bill 1842 of the 84th Legislature, stating it "governs the period of appointment of a board of managers, except that a board of managers' authority may be extended under subsection."

"Subsection 39.l 12(e) of the Education Code, as amended by House Bill 1842 of the Eighty-fourth Legislature, governs the period of appointment of a board of managers, except that a board of managers' authority may be extended under subsection (f)," the summary of that opinion said. "Subsection 39.112(e) of the Education Code, as amended by House Bill 1842, governs the period of appointment of the board of managers of the Beaumont Independent School District."

The second opinion concerns the legal status of real property described by a section of the Texas' Education Code once that property is returned to the state from a charter school.

"I write to obtain your guidance related to the legal status and disposition of real property that has been purchased by a charter school that is revoked or otherwise ceases to operate," Williams said in his request, also dated Dec. 21, 2015. "Specifically, this request seeks an opinion as to whether real property that is returned to the state pursuant to section 12.128 of the Education Code is "unappropriated public domain" that must be returned to the School Land Board (SLB) as part of the Permanent School Fund (PSF) under section 43.001 (a)(2) of the Texas Education Code?"

The attorney general's office responded with a five-page response. "Subsection 12.128(c) of the Education Code provides that the Commissioner of Education shall take possession and assume control of, and supervise the disposition of, public property of an open-enrollment charter school that ceases to operate," the summary of that opinion said. "In this provision, the Legislature has set aside this returned public property such that it is not unappropriated property for the Permanent School Fund under subsection 43.001(a)(2) of the Education Code.

"Chapter 31 of the Natural Resources Code does not authorize the General Land Office ("GLO") to unilaterally direct the disposition of public property returned to the State pursuant to section 12.128, but it provides for GLO involvement in the Commissioner of Education's disposition of such property.

"Texas Constitution article III, sections 51 and 52(a) prohibit the Commissioner of Education from gratuitously granting such property to private interests, and article IV, subsection 8.02(h) of the 2015 General Appropriations Act appropriates the proceeds from the disposition of such property. Aside from these provisions, we cannot foreclose the possibility that other law may apply to the Commissioner's disposition of the property."

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Texas Office of the Attorney General
300 W 15th St
Austin, TX 78701

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