Untitled Texas Attorney General Opinion

OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN

Bonoreblo X. I,. Shelton County Xuditor Johnson Couzity Claburne, Toxee Dssr Sir:

varfld b.y the Peti- C. Johxsn end .presuntad to aad by the Rio Viotn ar;riot Eoerc! of ?33y

f roG%nt dab3 and f'rOn an in tho ikpertmnt of Zdu- the fol1oxir.q facts: or to 1906 ocrtain terri- y oonstitutsd the Mustang rfct, which apparently enjoyad of a cmxzon school district. Long ft he5 been disoontiuue@ as E triat arid its territory wee loft czhool diotrlot. Includad Lohool Distriot is the Joseph Dickson survey which wes edjaoent to the 0. %oore Survey. The latter survey lies pertly in Johnson Courrty et-id Fartly in Hill County. On !Zay 28, 1906, a najorlty of tho quel- iffod votera llvlne within tho bounds of the

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: Hon. IX. I:. Shelton, Pa& ;Z

,foccph Dickeon Swvey ana ocou_~ying 5 portion of3.tklat surVeyI filed s petition with tha prasi- dC%lt Cf the Eoard of Y’rusteec o.f the Rio viste Independent School DI.Etrict, which district ms locstaa xithln the boutida of Johnson Cocnty, doclnring their dcslre to beoorw a pert of the RIO vista Scf1ool District, I~uYsuent to tll1.s peti,tion, ths Eosrd of Trustees of the Rio Vps- te Indopcndent School District, by resolution, inoorgoratsa into and nm?e jxrt of ths Rio Vista Tndependant school. L’istrict thlo perti- oulsr portion of the Joseph Dlckscu Survey. This reuplxtion, whiah is recorded in the oounty oourt records, roads as follows: “On this the 25th day of Zag 1905 the Presiilent of the Board of 4.?rusteas eubmj.ttsa to the board the petition Fn writing of 3. C. Johnson end fivo other persons xixioh l;etit;isn hsd hem duly fllod with the Prcoident of the Eoal’d, preyin? that the territory hereinafter desoribed bo roceivea ns an addition to ma to beoo!.w pnrt of the Rio Vista Independent School District, and the board heQlng coneidered suid petition the affiaarit of threo of the subscribers thereof ottachea thereto, end all the fects In conzc%ion therei.ith is of the opinion ad upon Inve.:tigatioo finds the fects to bb~ that thu proposad aadltion will not in- creaoe t&o oozporate lldte of bsia Rio Vists Snde- .pendent School liistrict 60 thst the Dhole whsf, thus inorecised, v;ill not eroaed ‘I’iwnty Yivs S.n,usre/ T..!ilf?~, &nd tllat the signers of.seid petition Constitute 8 mjor:ty of the re.,,-*dent qilalifiua voters of said territory; therefore, me it Resolved by the Ijoard of y;ustcos of’ the stlia R,lo Vista Iriiel>endent fichool District that the fclloviing described ter-’ rltory,abeinp, the some territory which is described in aala petl.tfon be, sna the nsme heraby is r3- ce.iQed .es E,n sdirition to and to beocmc a part of the co;por6to limits of the mid Rio Yists %aepon- Cent Yohool Diotrict.R Subsequently, on ootober 16, 1906, under znd by virtue of an order issued by the County Ju@Ge of Hill cowkty, an eloot.lon was hsla at ijlun, Texas, v&i& spperently hr;a EiS its objsotivo tho formtion

Hon. E. L. Shelton, Pa@? 3

of the Dlu~ Indopandent Sahool District. Ze have asoertained fro= the Departmnt of Xducotlon that the klu5 %3hOOl District becmie an indepcn:dent School district on their rccorda 1.n Novezber, 1900. The onti.re Yoseph Dickson Survey, includkn.~ th5t portion thsl*2of which hcd prericnlsly pctitioncd to becom a part of the Rio Vista ImieRen~ant School District, v&=ia medo a part or t113 E3i? Elurn Indegencient School Distriot by virtue Of that election. The Rio Yiata School District in Johnson County was lncoryoratod In 1903 as a tom for school purI>osaa only, undar pme,ral law, 5n 002q7licnoe w;ith tho kct of 1075, acoordlnr to tho recordo of the DepaTt~3ut Of Education, and ia still. a valid indcpcndent school distriat. You submit fork the opinion of this dapartaent t\vOC&e~ti~.!lLi, vihich vie quote BE f'OilO%S: n1.a Upon the baois of the f&0%6 presented, doos the Elm School Distriot have a lceol and lewful claim to that part of the Joseph Dickcon Survey that is covered by the patition of E. C. Johnson and othe~a as presented to end coceyted by the Rio Vista School Doard of Xay %5th, 19067

"2. If the Blum Sahool District does not and cannot estcbllsh legal Ovihership of said territory In quostfon, can the Rio Vista School District bring suit and collect the school taxes that,have beea paid to the Elan School District by the people reslcing within the wtes end bounds of said disputed terri- tory for the laet twenty-five years or lon$7er?* * It is apparent from a readinS of the resolution adopted by the fiovrd of Trustees of the Rio Vista Indepen- dent School District and fro:3 facts contained ?m your latter that such Eoard and t!:c petitioners in the dis- puted portion of the Jo~-sph Diokcon Survey sourht t0 OOIX- ply v;::it,hthe provisions of Sao. 153, Chsp. 134, Acts Of 1905, 29th Legislature, pp.- "03,304, in their effort8 to

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extend the district boundaries. to inolude that area. Thf~; sootion which was oarri.ed unohnnced into the re- vision of 1911 8s Article 2065 and into the revioion of 1925 as ktiale 2765, prior to its repeal in 1929, refid 85 foilo~~: Vhenever the terr-itory heretofore incor- pO2Htt:a, or vihlch may herc;F;ftor ba j.ncorpo- rated, for free SOhO pLWpOS%S,shall c0ntol.n 10Sa than twenty-five square miles; and there- after the majority of ths inhebftanto, qualified to vote for members of the Legislature, of ony territory sdjoininy, the limits of the town and ville~e 50 incorporated, shall denim such territory to be added to and become a part of such &mzporutea tom or wimp ITOF froa s0h051 purposes only, and a mjorltp o? such yualiriari voters S~FJIR JMtitiOn t0 that Gffect, sny three of such quelificO voters xxy file ~3iti-1 tb,o prt30- ident of the Poard of Trustees of sunh insorpo- rated toun or vilfege the said petition, fully desorib?ng by metes and bounds the territory proposad to to annexed and shoyJin@: ito location with reference to the existing territory of tho town or village dreaay incorporated, pOdha that sslG territory proposed to be added must be contitg~ous to one line of said corporation. Upon so filinc: said petition, dxaavits nud dca- ariptions, said president shall submit the same to the board* and, if upon investigation by the Eoard it is found that the proposed addition vii11 not increase the oorporsto Limits RO that the :shole, Vihsn so inoreased will exca?d t:;lonty- five squzrc miles, the said board 5T trustees, by resolution d~uly entered upon its minutes, may rec~lvo suoh propo3ad territory 0s an addition to, en:'. become R part of, the ooqporate 1imitS Of suoh t5vn or village; a copy of v;hlch resolution, oon- tain3ng, a doscrdption of the c-iadea tersltory, shall be ffl& for record in the county clork15 OffiOe Of the county in whioh eaid to&n or villn@ is ait- uatea, aftor whidh the tar-itory 80 received shall be ‘0. part of said toyin or villofo; . . ." Before entering into a discussion of the lepality of the eation 0s ~1% flill County snd Hum School District

Bon. E. L. Shelton, Pege 5

authorities let US first detemine vihether or not there existed at thst time any stetutory or ooustitutlohal authority for tho annexation of the disputed area to the Rio Viste Independent School Glstrict. In’l906, Sec. 3 OS Article VII of the Consti- tution, diioh authorized the Le@lature to farm school districtG road GS folloi’;s:

. and the L6piSlatUre r.. may ulso provide Sor the formation of school dlstj?iots withfic all or any of the counties OS this State by @m.eral or specie1 lav<s . .‘I l

In addl.tion to Seatton X5:5, whfr,ohwe qv,oted above, thera ~33 on th3 statute books at that tlm a pro- vision fez the Somotion OS school districts cmitaining pa&s of Tao or mare counties, conea oounty-line school districts. Nction 55, Chapter 1;: 4, Acts OS 1905, 29th Le~~lsla’;ur6. These two stututr;s were intagral parta OS the “6chool Code”. Eo speoiffo lan$uege is to be Sound in %otion 158 pormittiniT, the ext ension OS Independent Sahool Dlstriot boundariss to includa territory in more than a sln~lc oounty, but the fact that seotion tit, dealt with the same ~.eneral subjeot and was contained in the sme body OS ~RIY jiave those districts, under rano&zed rules of statutory con- struction, 3.~1plied authority to so extend their bourdarien. Carlton Independent Sohool District v. Jordon, ot nl, (31~. App., Eastland, 1928) 0 S. 3’ . (2a) 384; rcveraed in part, (co~m.~ &q., EFC. )J, 1930) E5 6. I;‘. (2d) 610. Cea also 39 Tex. Jur., Sootion 13r3. ln 1906, however, the Guproloe Court d,eternlued that the Legislature bad no authority to authorize the Somatfon of school distr$cts lyin@ partly in diSSerent COUntiet3, or no-called oou.uty-line districts, and that seation 3 OS /.rtiqle VII of the Constitution required that all school districts be kept wvithin county boundaries. Parks v. Xeet, 102 Tex. ll, 111 9. ‘8. 726. All acts by the Legislature authorizing. the fomation of containing tij.atri0t.a parts. of tw3 or Icore oo~ties wore thus held UncWstitUtiOnal. Reocssarily any Implied authority attributed to independent clistr@ts

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t0 extend their boundarien.earosfi county lines under Saction 153 v;es also unconstitutional. Tha l@slatLVe authority under which the Rio vista Indepeni'iont school llistriot puxportad to act being unconstituti.ona.1; its atte;a,;it to mnax the dQjput& 6r~a in tlill County was 3Skewlse in.v:ilid and did not aSfact th3 St~ltUQ of t!i9t eTEti arj Ullclcimcd territory. The IT40 vista dictriat had no p2Z.w cl.tiim to this urea, and .thb R111111district hc;d a Pi&h%, at that time, to include it v?ithln its boundaries. ~?GWVer, aftor the decision in Parke Q. Xeot,, SeCtiOn 3 Of hrticle lt13 of the Constitution, was a;l:%udod on &otember 24, 1.909. Thu a:G:atiant, in e.ddition to supplying thr; nscoscory oonstitutlonal authoritv to the Lc~l~loturs to provlc?o for the formation of sch.;)01 d.is- tricts oomposud of ports of two or more counties, vali- datsd all prior sxisting county-line districts. The portion of the anendnent pi-ovidiog the Le&lature with authority to form dfstcicts crossing GOUnty li.naS was pUr@ly enabling and ~8s in no sense f3elf-exucutla~, as pointed out in Carlton independent 'Gohool District v. Jordan, supru: YIad ths Legislature nwor seen fit (thereafter) to provide for the formation of districts lying partly in two or more oountfws, none twtir oould have lawfully existaa, ssve and except those which by the same aonstitationnl amendment had been expressly validated.** The Legislature did not exorcise its power under the emendrm!nt until 1911, at which time it provided for the formation of county-line districts in Ch,rptor LOO, p. 200, Canaral Ls:is of 1Yl.l.. The provisions OS Zaction 155, Acts of 1905, varz at thet time re-enacted, u.nchanFed, in the oodification of 1911 as Artiale 2865, OS notad above. Thus prior to 1911 no authority existed <n the Texos sta- tutes SOP the Somation of districts composed of two or more counties or POP the extansion of district boundaries aoross county lines. Carlton Independent sohoG District v. Jordon, nupra.

Hon. E. L. Shelton, Pa@ 7

SSnce. thelegislative sots, ex@essly or impliedly permitting county-line districts were invalid at the time of their enactment, no subseuent amendment to the Constitution, outhorixikq the Legislature to pro- vide for the formation of county-line distriots, would have the effect to re-enaot then end thus to infuse life into e thlnr tbct never had eriatenoe. Senooa XininC Co. r. Secratzry of State, 02 Xich. 573, 47 17. 2. 23, 9 L. R. A. 770; Mnaz v. :%litb, 133 Gel. 102, 65 I?. 3CQ( StBta 3x ssl ~tCnw2son V. %Ifly, 20 t&Q. 427, 22 p. 1054, 19 Am. St. iiep. 374; Carlton Ind. Sohool, Mat. v. Jorcon, supra. 'Se turn nox to the valldsrinh; portion of the amendment of lQG9, Nhiah appearsin our present oonsti-, tution as section 3a of Article VII. This section rezds 88 followsr TZvery school district heretofore formed, whether formed under the Cenaral la%% ar by apeoia1 act, and whether the territory embraced within its boundaries lies wholly within a slnr,le county~or Fartlg in two or more aountiea, is hereby dcoltred to be, and from its forma- tion to hare been, a valid and~lawful district. . .* It was held by the Supreme Court in Gillespie et al v. Li&htf"oot, Attorney Cenersl, 103 Tex. 359, 127 S. i:!. 799 (1910), thut the~defect in county-line dis- tricts due to want of oonstitutional authority to form them was cured by this portion of the amendment of 1909, and that all suoh dintriots, whioh had not been pre- viously disnolved by IeCal means, tsere thareby declared to have been valid from the time of the5.r formation. The oourt in that case WDEooncerned with a county- lfne district wh~oh wns Eom~sd as such. Yie have been Un- eble to fin& eny ease which involved the question of whether the anm&nant of 1909 would ala0 havo tho effeOt of validating a district, wholly within a county at the time of i<s formation, as to territory In another county added prior to the adoption of the amendment but after its formation. It ie our opinion, however, that the amdndment did not hova that effect for three reaaonsr

1. Seotion3e of Article VII is limited in its soap* to districts which had no valid existenoe in

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the 11&t of Parks v. !7ast bcoauso no valid lam euthorized their-form&ion.

*It is oesy to see that a purpose, probably the Mainepurpose of the amendment, ‘was to save from,destruction the county- l.+nc distrlots affooted by the decision referred to. That muoh Is certati from .the history as well aa from the lanCua~,e of the amendment.” Gillesplo v. LiChtfoot ( sgra. Those distriots wbioh wre not so affeotod by the decision 1.n Parks v. 33st ant those whose valid existence was unquestioned needed no suoh sesiotanoe. 2. The amendment did not concern itself wf.th valid.aCi,ng unauthorized actions by validly existj,ng districts, but only with circumvont~ng original laok of aonstitutional authority for the formation of those .rhich had no valid existowe. “Its (Sec. 39. of Art. VII) interpretation literally mi(-ht establish the validity past and present of evary school district that had at any tima before its adoption beon formed in Texas by general or speoial le:?, although it may IOn& a~0 haVt? passed out of existence and been absorbed by other organizations. Of course, i.ts purpose was not so comprehenoivs. Unquestionably, it was intended to give oonstltutional and local sanotion to such districts an for want of it v!ara invalid, to save and not to’destroy riGhta.* Cillssyfe v. Lightfoot, silpra.

3. The amendment, as we hsve noted, did not havo the effect ,oP validating the statutes daolared un- oonstitutional by Parks V. Kest. Those statutes under which the Blo Vista distriot purported to act wore ‘un- oonatitutional at the time of the annexstion and continued to be invalid after the adoption of the amendment until thefr re-enactment. Corlton Independent School Dlstrfct 9. Jordan, supra. $7~ oonolude, therefore, that the Rio Viota Independent Sohool Distriot whiah at the time, lay ;!holly in Johnson County had no authority~jn 1906 to incorporate Uithin ita boundaries territory thut lay in Fiill County and that lts,~pUrported annexation of suoh territory Was

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I,nvalid. Since the disputed portion of the Joseph Dickson Survey could not have been validly annexed to that district, It follows that the Glum School. Rlstrict a+.: the tir.lJ it acted liZid the right to in- clude it xithin its boundaries and that if all the requirements of Cectlon 149, Aats 1905 wore complied t,4th, (and we have no reason to believe they .i’iere not.), its aotion in LO dOinp, was Valid and the entli.re Joseph Rickson Su:vey then became part of that. district. Althouch we base ouii oonclusio?l OII the oon- struction that. the valifi.nting portion. of the Axend.ment of 1909 WY intended to j.nfuse lift into distrrots \;hose valid existence YV’ES denied by the deoision in Parks v. ‘cast; end ;:‘Rs not concorned v;i-:th add.itfons of territory to vel.id districts, we ncsd not rol.g exclu- a-lvcly on that wound. i’u’edo not believe that any court :~tlll look with favor on a claim such as this which has been permitted to lie dormant for more than 53 years. The Elum Independent School Ristricc became a rural hi& school distriot in 1929. Suoh distriots were validated $n all respeots by tb.ree enactments o’r the 4lst LeOislsturo. Qee Article u 2802a, Article 27021 and Arti- ole 27423, Sac. 2. Oux conslusion in regard to your first question makes unnecessary an answr to youx second question. Trusting that the foregoing information will. fully answer your inquiry, we me Yours very truly

Roberj!@ E. kepke ‘i..i~,,.:;~,,7.~,, ,: ., .< I,~ Assistant