The Attorney General of Texas
November 10, 1980
MARK WHITE
Attorney General
Honorable Donald L. Wilson Opinion No. NW-266
Callahan County Attorney
Callahan Courthouse Re: Procedure for holding a school
Baird, Texas 79504 consolidation election
Dear Mr. Wilson:
The Hamby, Clyde and Abilene Independent School Districts are
contiguous, and each district has boundaries in two or more counties. At
least twenty days prior to April 5, 1980, petitions requesting consolidation of
the Hamby and Clyde school districts were presented to the county judges in
each county in which the districts are located. During the same time period,
petitions calling for consolidation of the Hamby and Abilene school districts
were presented to the county judges of the relevant counties. Your
questions are essentially as follows:
1. Should the county judges schedule elections on
both petitions for the same day or for different
days?
2. If the former:
(a) Should separate voting places, judges, tallies,
etc., be maintained for each proposal in the
Hamby district?
(b) If both proposals are approved, could the
commissioners courts declare the new consoli-
dated district to be the one carrying by the
largest majority in Hamby, or should the,
election results be determined in some other
manner?
(c) If an election is declared void, will the one-
year prohibition as to a second election be
operative?
3. May a consolidation election be held in November,
1980?
The adequacy of the petitions is not disputed.
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Honorable Donald L. Wilson - Page Two (MW-266)
Statutes governing school district consolidations are contained in the Education
Code in sections 19.231 to .24’7 (formerly article 2806, V.T.C.S.). Section 19.232 thereof
provides that:
A petition signed by 20 or a majority of the legally qualified
voters of each of the several contiguous school districts
proposed to be consolidated and praying for an election to
authorize the consolidation shall be presented to the county
judge of the county in which the school districts are located; or
if one or more districts to be consolidated is a county-line
district, to the county judge of the respective county or
counties having jurisdiction thereof.
Section 19.233 provides that upon receipt of a petition fulfilling the requirements of
section 19.232, each county judge shall:
(1) issue an order for a [sic] election to be held on the same day
in each district included in the proposed consolidated
district;. . .
The statutes do not specify the procedure to be followed in the event that two
petitions involving the same district are filed.
The law was settled that under former article 2806, V.T.C.S., a county judge:
acquired jurisdiction to call an election on a question of
consolidating school districts immediately upon the presentation
and acceptance by him of a proper petition therefor.
Upon the presentation of the petition for an election. . . it
was the ministerial duty of the County Judge to order the
election.
, 211 S.W. 2d 238, 240 (Tex. Civ. App. -
Independent School District v. Thomerson,
223 S.W. 2d 314, 319 (Tex. Civ. App. - San Antonio 1949, writ dism’d), the court stated
the rule in this manner:
. . .exclusive jurisdiction of a tribunal. . . is fixed when the first
legal step or action required by the statute authorizing the
creation of the proposed district is actually taken. Art.
2806. . . does require the filing of a petition, and when such
petition is filed exclusive jurisdiction is fixed in the county
judge or judges with whom the same is filed.
See also Griesenbeck v. Schindler, 552 S.W. 2d 203 (Tex. Civ. App. - Eastland 1977, writ
rerd.e.); Rhea Common School District v. Bovina Ind. School District, 214 S.W. 2d
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Honorable Donald L. Wilson - Page Three (MW-266)
660 (Tex. Civ. App. - Amarillo 1948, writ dism’d). Since the legislature did not alter
the relevant statutory language when it enacted sections 19.231 to .247 of the
Education Code, this rule remains intact. Accordingly, when the county judges
accepted the Hamby-Clyde or the Hamby-Abilene petition, whichever act occurred
first, they acquired jurisdiction over that petition and had a ministerial duty to order
an election upon it. The question is whether the act of accepting the first petition
deprived the judges of authority to schedule an election upon the second petition until
the first matter had been resolved.
The cases in this area are inconclusive. Most involve jurisdictional disputes
between coordinate tribunals, i&., a county judge and a county school board. In this
context, the settled rule is that where coordinate tribunals have jurisdiction over the
same subject matter, the tribunal which first acquires jurisdiction has the right to
retain it until it disooses of the matter free from interference from the other tribunal.
Griesenbeck v. Schindler, w Mt Enterprise Ind. School District v. Colley, 424 S.W.
2d 650 (Tex. Civ. App. - Tyler 1968, no writ). See also Attorney General Opinion O-
778 (1939) (county judge should not order election on Clyde-Midway consolidation
.propceal because- he had already scheduled election on- Midway-Baird petition).
However, this rule has not been applied in the few cases wherein a single county judge
received both petitions and there was no conflict between tribunals. For example, in
Rhea, m, elections on petitions requesting consolidation of the Oklahoma and
ma school districts and the Rhea and Bovina school districts were scheduled for the
same day, although the county judge received the Oklahoma-Bovina petition four days
before the Rhea-Bovina petition. In a suit for declaratory judgment following defeat
of the former proposal and approval of the latter, the court rejected the argument that
the filing of the Oklahoma-Bovina petition gave voters in those districts a prior and
exclusive right to vote on that consolidation; the court did, however, state that as a
practical matter, the Rhea-Bovina election should have been scheduled for a later
date. See also West End Rural High School District v. Columbus Ind. School District,
221 S.W. 2d 777 (Tex. 1949).
Your situation has elements common to both lines of cases discussed above, and
therefore neither line conclusively disposes of the question before us. However,
careful analysis of the reasoning employed in those cases leads us to conclude that the
principles stated in Griesenbeck and Mt. Enterprise and reflected in the court’s
suggestion in m, are sounder and would most likely be applied in the event of a legal
contest. We have noted that the act of accepting the first of these petitions vested
exclusive jurisdiction over that petition in the county judges, who at that point
acquired a duty to order an election upon that petition. London Ind. School District v.
Thomerson, w; Garrett v. Unitv Common School District, m. We think it would
be consistent with the concept of exclusive jurisdiction for the iudaes to hold the
second petition in abeyance until the first proposal is approved or rejected by the
voters. See Attorney General Opinion O-778 (1939). Accordingly, we conclude that the
county Igges of Taylor, Jones, Callahan and Shackelford aunties must determine
which petition was the first to be filed and accepted in all four counties and then
schedule an election upon that petition. If the election on the first petition results in
consolidation of those districts, the second petition would become invalid. West End
p. 847
.
Honorable Donald L. Wilson - Page Four (Mw-266)
Rural High School District v. Columbus Ind. School District, e. The question of
which petition was filed and accepted first is a fact question to be resolved by the four
county judges involved.
Parenthetically, we observe that even if both elections could be scheduled for
the same day, there is a convincing practical reason for not doing so. The election
contest omcedure set forth in the Election Code is available to contest school
elections. Eke. Code arts. 9.01, .30. See Roberts v. Brownsboro Ind. School District,
575 S.W. 2d 371 (Tex. Civ. App. - Tyx 1978, writ dism’d). If both proposals were
approved, a court might be compelled-to void the elections on the ground that it would
be impossible to ascertain the true results thereof, Elec. Code art. 9.15.
Our disposition of the first question renders consideration of your second
question unnecessary.
Your last question is whether a consolidation election may be held in November,
1980. Article 2.01b(a) of the Election Code provides that in even numbered years
elections of certain officers and amendments to the Texas Constitution are the only
issues that may be submitted to the voters in November. Thus, we conclude that a
school consolidation election may not be held in November, 1980.
SUMMARY
The county judges of Taylor, Callahan, Jones and
Shackelford counties must determine whether the Hamby-Clyde
or the Hamby-Abilene petition was filed and accepted first, and
then schedule an election upon that petition. An election on the
second petition may not be ordered until the first matter is
resolved. A school consolidation election may not be held in
November, 1980.
Very truly yours,
&s2izGd&
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Jon Bible
Assistant Attorney General
p. 848
Honorable Donald L. Wilson - Page Five m-266)
APPROVED:
OPINION COMMlTTEE
Susan L. Garrison, Acting Chairman
Jon Bible
Walter Davis
Rick Gilpin
Bruce Youngblood
p. 849