Untitled Texas Attorney General Opinion ( 1939 )

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
.._
205
:
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
Eon:E. L. Shelton, Page 4
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 lavJorcon, 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 iJordan, 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
Ron. E. L. Shelton, Page 9
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