Untitled Texas Attorney General Opinion ( 1945 )

Honorable T. D. Sansing
County Attorney
Hanaford County
Spearma, Texas
Dear Sir: Opinion No. O-6554
Re: Whether Spearman Independent
School District is authorized
to sell lots belonging to the
district without the consent
of the State Board of Educa-
tion.
Your request for opinion has been received and
carefully considered by this department. We quote from
your request as follows:
"The Spearman Independent School Dis-
trict desires to sell two lots owned by it
in the town of Spearman, Texas, and.the
question has arisen as to whether or not
same can be sold without the consent of the
of the State Board of Education. I have
checked into the matter considerably and
am unable to determine to my satisfaction
whether or not the district has such
authority. I would, therefore, appreciate
an opinion from your office on the matter.
'The Spearman Independent School Dis-
trict was created by a special act of the
3rd called session 36th Legislature. The
district is not operated by the City of
Spearman. It includes all of the city and
extends several miles each way out into the
country.
"Prior to 1938 the district sold a
wooden building to the local American Legion,
all, it seems on credit. No lien was taken
by the district. This building was moved to
the lots which the district now desires to
sell. The Legion placed a lien on the
Hon. T. D. Ssnsing, Page 2, 0-6554
buildings and lots in favor of a Lumber
Company. The loan was not paid and the
lien was foreclosed. As the lumber
company got the amount of its losn from
the sale of the building, it gratut-
iously deed the lots to the Spearman
Independent School District. This was
done in 1938 and the lots have r;Mn;d
vacant and unused ever since.
trict had no idea of ever using same for
school purposes, as they are not suited
to be used in such manner, but had in
mind selling the lots as a means of partly
salvaging the loss on the building sole
to the Legion.
"The district can sell these lots now
at a good price, and the question, or
rather two questions arise:
"1. Must the Spearmen Independent
School District Secure the consent of the
State Board of Education before it can
sell said two lots?
"2. If such sale is made, must it be
at public sale?"
Spearman Independent School District in Hansford
County, Texas, was created by H.B. 70, Acts of the 36th
Legislature of Texas, 1920, 3rd Called Session. Section 1
of the Act creates the district and sets out the bo.undaries
thereof. Sections 2, 3, 4 and 21 of the Act provide as
follows:
"2. The management and control of the
public free schools within said district is here-
by vested in a board of trustees, which
board shall be composed of five persons,
resident citizens and qualified voters with-
in said district, and each member of the
board, before entering upon the diseharge
of his duties, shall make and subscribe to
the usual oath for the faithful and impartial
discharge of the duties of his offiee, as pro-'
vided by the general laws of the State of
Texas, governing independent school districts.
"3. The board of trustees of the Spear-
man Independent School District shall be a
Hon. T. D. Sensing, Page 3, O-6554
body politic and corporate in law, and aa
such may contract and be contracted with,
sue and be sued, plead and be impleaded in
any court of this State of proper juris-
diction, and may receive any gift, grant,
donation or devise made for the use of
public schools of the district, as provided
by the laws of the State of Texas govern-
ing independent school districts.
"4. The board of trustees of said
district shall manage and control the public
free schools within said district to the
exclusion of every other authority, except-
ing in so far as the State Superintendent
of Education (Fublic Instruction) end the
State Board of Education may be vested with
the general supervisory authority to in-.
struct said board, as provided by the laws
of the State governing independent school
districts.
"21. The provisions of this Act shall
be cumulative of all general laws now in
force, or to be hereinafter enacted, govern-
ing independent school district, their manner
;f=z;eating debts, levyfng and collecting
except when the same is in conflict
with Che provisions of this Act."
Article 2773, Vernon's Annotated Texas Civil
Statutes, reads as follows:
"Any houses or lands held in trust
by any city or town for publfc free school
purposes may be sold for the purpose of
investing in more convenient and desirable
school property, with the consent of the
State Board, by the board of trustees of
such city or town, and, in such case, the
president of the school board shall execute
his deed to the purchaser for the same, re-
citing the resolution of the State Board
giving consent thereto and the resolution
of the board of trus,teesauthorizing such
sale."
Article 2753, Vernon's Annotated Texas Civil
Statutes, found in Title 49, Chapter 13, Section 1, Common
School Districts, reads as follows:
Hon. T. D. Sansing, Page 4, O-6554
"The trustees of any school district,
upon the order of the county trustees pre-
scribing the terms thereof, when deemed
advisable, may make sale of any property
belonging to said school district, and apply
the proceeds to the purchase of necessary
grounds, or to the building or repairing
of schoolhouses, or place the proceeds to
the credit of the available school fund of
the district."
Article 2753, supra, relates to common school
districts and does not apply to independent school dis-
tricts. R. B. Spencer & Co. v. Brown, 198 S.W. 1179.
We quote from the court's opinion in the case
of R. B. Spencer & Co. v. Brown, 198 S.W. 1179, as follows:
II . But appellees further contend
that BGok did not become the owner of the
building under his contract with the school
board, because no order had been made by
the Commissioners' Court of the county pre-
scribing the terms of the sale, as required
by Article 2846, R. S. (1911) (Now Art. 2753),
nor had the consent of the State Board of
Education to such sale been obtained, as re-
qu;re;7;;)article 2873, R. S. (1911) (now
. .
"Article 2846 has no application, be-
cause the school district was an independent
school district. Said article appears in
the Revised Statutes in chapter 15, title 48.
This chapter relates to common school dis-
tricts. Originally this article was section
86 of chapter 124, Acts of the Twenty-Ninth
Legislature, p. 263. It there appears under
the subtitle 'School Houses and School
Supplies' of the title 'Common School Districts.1
It is thus manifest that this article relates
to the sale of property belonging to common
school districts.
"The sale of school property belonging
to the Lingleville independent school district
is, however, governed by the provisions of
article 2873, R. 3. (lgll), which requires
the consent of the State Board of Education.
The State Board of Education did adopt a
_ -
Hon. T. C. Zansing, Page 5, o-6554
resolution, which was quoted above. This reso-
lution did not in any wise undertake to pre-
scribe the details of the sale which might be
made of the land by the school board, and was
sufficiently comprehensive to authorize the
school board to make the sale thereof in the
form of applying the value thereof to the con-
struction of a new building. That is what was
done by the agreement between the school
trustees and Brown. This resolution of the
State Board of Education constituted sufficient
authority to the board of trustees to pass
title to the school building to Brown, but
in this connection it will be noted that this
resolution was adopted subsequent to the date
of the contract between the school board and
Brown. Since said consent of the state board
did not exist at the time of the contract with
Brown, appellees contend he did not obtain the
title to the building, and was therefore not
the owner thereof, so as to enable him to fix
a lien thereon for materials furnished. We do
not think that a deed to a house or land exe-
cuted by the board of trustees of an inde-
pendent school district without the previously
obtained consent of the State Board of Educa-
tion would be such an absolute nullity as
would preclude the application of the principles
of ratification. Undoubtedly, however, it would
be lacking in an essential necessary to its
complete validity, viz. The consent of the
State Board to the sale, but if such consent be
subsequently obtained, then we are of opinion
and hold that it would operate as a ratification
of an act done without authority. In the in-
stant case, the consent of the State Board of
Education given in October, authorizing the
board of trustees of the Lingleville school dis-
trict to sell all or any part of the land, was
sufficient to validate the contract sale there-
tofore made between the board of trustees and
Brown; it operated retroactively, ,and made the
contract with Brown as effective as though it
had been authorized previous to its making.
It may be conceded that, at the time the material
was furnished to Brown by appellants, Brown's
title to the house was lacking in complete
validity because of the failure to obtain the
previous consent of the State Board of Education,
Hon. T. C. Sasing, Page 6, O-6554
but he at least had an inchoate'right or title to
the property, which was ,afterwardsperfected.
. . . .
"Article 2873, R. Z., says the president
of the school board 'shall execute his deed to
the purchaser for the same, reciting the reso-
lution of the State Board of Education giving
consent thereto, and the resolution of the
board of trustees authorizing such sale.' In
this connection, the point is made that the
agreement between the board of trustees and
Brown recited no such resolutions. It is not
believed it was the intention that such pro-
vision should nullify completely a deed exe-
cuted without reciting the resolutions
mentioned. It was intended, doubtless, that
the deed upon its face should disclose the
authority by which it was executed; but this
provision is regarded as directory and not
msndatorg, and a failure to incorporate such
resolutions in a conveyance does not nullify
the same. . . .'
In view of the court's opinion in Spencer vs.
Brown, supra, we are inclined to believe that the con-
sent or ratification of the State Board of Education
would be needed before the purchaser of said lots from
the Zpearman Independent School District would obtain
good and merchantable title thereto,
We think the better and safer practice would
be to secure the consent of the State Board of Edu-
cation in advance by proper resolution and incorporate
same in the deed.
It is our further opinion that a proper con-
veyance could be had at either private or public sale.
Notice of public sale could be advertised for a reasonable
time, such as, e.g., the length of time provided by statute
for sales of land under execution.
Yours very truly
APPROVED MAY 16, 1945 APPROVED
ATTORNEY GENERAL OF TEXAS
OPINION
/s/ Grover Sellers /s/ Wm. J. Fanning COMMITTEE
ATTORNEY GENERAL OF TEXASBy Wm. J. Fanning BY B.W.B.
WJF:bt:eac Assistant CH-