Q: We just had our swearing in ceremony for our new board members. One of them asked about the possibility of setting term limits for trustees, since his opponent had served on the board for over 15 years. Assuming the rest of the Board is agreeable, can they vote to set these limits?
A: No. The Attorney General recently held that school boards are prohibited from setting term limits on its members since the power to set eligibility requirements for membership on the board lies with the Texas Legislature.
Texas Education Code §11.051(a)(1) assigns the trustees of an independent school district the “exclusive power and duty to govern and oversee the management of the public schools of the district.” However, school districts are a creation of the Legislature and each district’s school board possesses only the “powers” expressly conferred to it by law. Chapter 11 of the Education Code grants 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 (typically 2 or 3 years). However, the law does not provide for a limit on the number of terms that a particular trustee may serve, nor does the law allow for a local school board to set such a limit locally. As such, a Texas legislator from the Elections Committee sought the opinion of the Texas Attorney General as to whether “a school board of trustees may establish term limits for trustees as part of the district’s governance policy.” RQ-0191-KP.
On May 7, 2018, the Attorney General responded, finding that school boards “possess broad powers of governance and rulemaking,” but that such powers do not extend to eligibility determinations. Tex. Att’y Gen. Op. KP-0196 (2018). The AG explained that a policy or law imposing term limits adds an additional eligibility requirement for running for a particular office. This occurs because an incumbent candidate would be disqualified or ineligible to run if he or she had already served the number of years set as the “term limit” prior to running for the office again. The Attorney General went on to explain that “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.”
In conclusion, school boards retain broad authority to oversee the management of its school district; however, “the authority to regulate who may run for and hold the office of trustee belongs to the Legislature.” Thus, the Attorney General held that a court would likely conclude that the general statutory grant of governing power to a local school board does not authorize it to adopt term limits for its trustees.