Untitled Texas Attorney General Opinion

March 20, 1970 Dr. J. W. Edgar Opinion No. N- 599 Commlsslonerof Education Texas Education Agency Re: Authority of Sunnyvale Town 201 East 11th Street Council to serve as the Austin, Texas 78711 Board of Trustees of the munlclpal Sunnyvale Indepen- dent School District and to forward to the district state Dear Dr. Edgar: school funds while so serving. In your letter requesting an opinion from this office, you submit the following facts: “In 1953, Sunnyvale IndependentSchool District was created a ntunlclpalschool dls- trlct pursuant to Article 2768, et seq., V.C.S. Town of Sunnyvale v. Dallas County Board of School Trustees, 283 S.W.2d 296. So far as we have been able to ascertain, It has had a school board of seven members; three or two members are elected annually for three year terms. The school board operated Its school system (8 grades) until August 18, 1969 when the Town Council of Sunnyvale assumed full operationalauthority and management of the Sunnyvale Independent School District under a Resolution adopted at a special meeting of the council. . . . "Our latest InformationIs that the Town Council has been meeting as a school board since last summer. According to the school principal, everything has been peaceful and the school Is operating smoothly. II . e . "This Agency la concerned as to the authority, If any, of the Sunnyvale Town Council to serve and -285% Dr. J. W. Edgar, page 2 (M-599) to continue to act, as It currently Is, In the capacity of a school board for the municipal Sunnyvale Independent School District. Personnel of this Agency have visited to&'a;- thorltles for their reaction with respect there- to. Locally nothing Is being done to change the situation; counsel for the town feeling that the town council has full authority as such to act as a school board, in lieu of the elected school board It purported by resolution to depose. "The time for election of school trustees Is fast approaching. If legally the town oouncll may not serve as a school board then perhaps the district should be Immediatelyapprlsed of the necessity for holding a trustee election to fill those offices which normally will expire In April, 1970." Other considerationsdeemed pertinent to the proper disposition of this matter are disclosed by a decision In the case of Town of Sun vale v. Dallas County-Boardof School Trustees, et al., 2 S.W.2d 296 (Tex.Clv.Apm3 , no writ), wherein the Court stated at page 297 the following: I, eThe facts were not In dispute. s . Appellant Is a town duly Incorporatedunder Ch. II, Title 28, R.C.S. of Texas, Vernon's Ann.Clv.St.art. 1133, et seq.; Its Incorporation having been validated by Ch. 177, p. 492, Acts' 53rd Leg., 1953, Vernon's Ann.Clv.St.art. 966c. The Town of Sunnyvale boundaries were thereafter duly extended, under authority of Art. 1139, R.C.S., by an annexation ordinance after petition of a majority of the InhabitantsIn the territory to be annexed. On Nov. 21, 1953, by a vote of 47 to 5, Sunnyvale assumed and took exclusive control of the public free schools within Its limits under Art. 2768, R.C.S., and Sec. 10, Art. 11, of the Texas Constitution,Vernon's Ann.St. effective Dec. 31, 1953. . . .' The Resolution enacted by the Town Council of Sunnyvale on August 18, 1969, reads, In part: "NOW TREREFORE, BR IT RESOLVED BY THE TOWN COUNCIL OF TRR TOWN OF SURRYVALE: -2856- Dr. J. W. Edgar, page 3 (M-599) “1. That all authority In connection with the school system of the Town of Sunnyvale here- tofore delegated to the Board of School Trustees of Sunnyvale IndependentSchool District be and the same Is hereby rescinded and terminated,and the entire operation of the Schools within the corporate limits of the Town of Sunnyvale is hereby reposed and placed In the Town Council of the Town of Sunnyvale, and.such committees as It may designate to manage, control and operate such schools, effective lmmedlately; “2. That any and all actions heretofore undertaken by the Board of School Trustees of Sunnyvale Independent School District In connec- tion with the operation of a Ninth Qrade for the ensuing scholasticyear be and they are hereby vetoed) nullified, and voided; “3. That all presently existing contracts heretoforemade by the said School Board, save and except any obligationsundertaken In connec- tion with the operation of the Ninth Grade for the ensulng scholastic year, be and they are hereby adopted and validatedby the Town Council of the Town of Sunnyvale, which will be substituted therein for the said School Board; ‘4. That the Town Council, acting through the Chairman of Its School Committee and such other persons as may be designated, shall Immediately take charge of all physical properties and other assets pertaining to the school system, and pro- ceed to operate the Schools up to and Including the Eighth Qrade for the coming scholastic year; 11 II . . . In view of all of the foregoing,you ask the following question: “If no authority lies In the five member Sunnyvale Town Council to act or serve as the Board of Trustees of the municipal Sunnyvale IndependentSchool District, should this Agency continue to forward to the district state school funds while it 1s so operated?” -2857- . Dr. J. W. Edgar, page 4(M-599) H.B. 534, Acts 61st Leg., Regular Session, 1969, en- acted the Texas Education Code. The Code became effective on September 1, 1969, and now controls Sunnyvale IndependentSchool District. Article 2768, Vernon's Civil Statutes,under which the Sunnyvale IndependentSchool District was created, IS repealed by Sec. lg.161 of the Texas Education Code on the same subject. However, from a conslderatlon.ofthe general.lawsnow repealed (Articles 2768, 2771, 2774(a), 2772, 2773(a), 2773, V.C.S.), we must conclude that even prior to the enactment of the Texas Ed- ucation Code the Town Council of Sunnyvale had no authority to enact a resolution purporting to assume the operation and control of the schools of the Sunnyvale Independent School District to the exclusion of the elected Board of Trustees. Chapter 24 of the Texas Education Code Is entitled "MunlclpalSchool Dlstrlcts' and Is comprised of Sections 24.01- 24.07. Section 24.01 repeals Article 2783c, Vernon's Civil Statutes, on the same subject and provides as follows: "The term 'municipalschool district' Includes any Independentschool district existing under the authority of Article VII, Section 3, or Article XI, Section 10, of the Texas Constitution,which Is municipally assumed or controlled;regardless of whether the same'18 a city or town school district, where the boundaries of the dlstrlct and the city or town are cotermlnous,or whether It Is an ex- tended Independent school district, where the city or town has extended Its limits for school purposes only." Section 24.02 repeals Article 2761a, Vernon's Civil Statutes, on the same subject and provides as follows: "Municipal school districts, regardless of the manner In which they came Into existence and regardless of whether or not the boundaries have been extended for school purposes only, are classlfled as Independent school districts. Once a municipal school district has been es- tablished, It shall continue to be an Independent school dlstFlct even though the city or town which assumed or accepted control of the school district abolishes Its corporate existence as a municipal corporation. Except as specifically -2858- . Dr. J. W. Edgar, page 5 (M-599) provided otherwise In this chapter, municipal school districts shall be governed and shall function in compliancewith the general law relative to Independentschool dlstrtcts as provided In Chapter 23 of this code, Section 24.03 provides as follows: “A municipal school district shall be governed In the general admlnlstratlonof Its schools by a board of seven trustees, selected as provided In Section 24.04 of this code." Section 24.04 repeals Article 2774, Vernon's Civil Statutes, on the same subject. The provision of this Section applicable to the Sunnyvale IndependentSchool District reads as follows: 'The trustees of a municipal school dls- trlct are elected as provided in Chapter 23 of this code. . . ." Section 24.05 which repeals Article 2772, Vernon's Civil Statutes, on the same subject provides as follows: "(a) The board of trustees of a municipal school district shall have the general powers and duties prescribed In this section. "(b) The board shall have the exclusive control and management of the schools of the district. '(c) Title to all houses, land, and other property owned, held, set apart, or In any way dedicated to the use and benefit of the public schools of the city or town, whether acquired before or after the establishmentof the municipal school district, shall be vested in the board of trustees and their successorsIn office, In trust for the use and benefit of the public schools In the city or town. "(d) The board shall constitute a body cor- porate and shall have full power to protect the title, possession,and use of all school property within the llmlts of the municipal school dlstrfct, -2859- . . Dr. J. W. Edgar, page 6(M-599) and may bring and maintain suits in lar or In equity In any court of competent jurlsdlctlon when necessary to recover the title or possession of any school property adversely held In the district. "(e) Except where specific provision Is made with regard to the conducting of the affairs of a munlcfpal school district, the board of trustees of a mwnlclpal school district may exercise any power speclflcallygranted~or reasonably implied to the board of trustees of an Independent school district." In view of the plain and unambiguous language of Sections 24.01-25.05 of the Code, the Town of Sunnyvale presently has no authority to take any action by resolution, ordinance or by-law to usurp the responsibilityof the Board of~Trwstee8for the exclusive control an3 management of the schools of the dls- trlct. Moreover In Thomas, et al. v. Abernathy County Line I.S.D., etal., 290 S.W. 152 (Com.App. 1927) the Court stated at page 133 the following: "In our opinion the offices of school trustee and alderman are Incompatible. . . . 'If the same person could be a school trustee and a member of the city council or board of aldermen at the same time, school policies In many Important respects would be subject to direction of the council or aldermen Instead of that of the trustees."' In accord, Attorney Qeneral Opinion No. O-1071 (1939). Con- sequently,you are advised that the Sunnyvale Town Council Is not authorized to act In the capaalty of a school board for the Sunnyvale Independent School District. Chapter 16 of the Education Code contains the pro- visions of the Foundation School Program. Sectloti16.01 repeals Article 2922-11, Vernon's Civil Statutes, on the same subject and reads as follows: "The purpose of the Foundation School Program Is to guarantee to each child of school age In Texas the avallabllltyof a MIniplumFoun- dation School Program for nine full months of the year and to establish the eliglbllltyrequirements for the public school districts of Texas as In connection therewith." -2860- ., - Dr. J. W. Edgar, page 7 (M-599) Section 16.02 repeals Article 2922-12, Section 1 on the same subject and reads as follows: "Appropriationsenacted by the leglsla- ture for the promotion of the educational opportunitiesafforded by this state under this Foundation School Program shall be paid In accordance with the requlreme~tsand In the manner provided In this chapter. In relation to the admlnlstratlonof the Foundation School Program, Section 16.79 of the Code, which repeals Article 2922-20, Vernon's Civil Statutes, on the same subject, provides In part, as follows: "(a) It shall be the duty of the State Board of Education, State Board for Vocational Education, and the state commlsslonerof educa- tion to take such action, require such reports, and make such rules and renulatlons consistent with the terms of this chapter as may be necessary to carry out Its provlslons. II 11 . . . The provlslons_-- of Article . 2922-20, Vernon's Civil Statutes, were not materially cnanged In the Article's codlflca- tlon of Section 16.79 of the Code. 154 Tex. 632, 282 S.W.W 691 (1955), the following: "The duties of the Commlsslonerof Educa- tion to certify the funds to which a school district Is entitled and of the State Comptroller to Issue and transmit warrants therefor are purely mlnlsterlal and mandatory. Article 2922-20, V.A.T.S.; Article 2663, R.C.S.; Austin IndependentSchool Dlst. V. Marrs. 121 Tex. 72, 41 S.W.2d 9. The Injunction against these parties was properly denied. To this all parties agree. ,! . . .I' Consequently,under the authority In the holding of McKlnney V. Blankenshlp, su ra, it Is our opinion that the State Commissionerof Education+ oes not have the discretionunder the facts submitted to withhold Foundation School Program funds from the Sunnyvale Independent School District. -2861- . . . - Dr. J. W. Edgar, page 8 (M-599) SUMMARY The Town of Sunnyvale has,no authority to take any action by resolution, ordlnence or by-~ law to usurp the reaponslbllltyof the Board of’Trustees for the exclusive oontrsl and manage- ment of the schools of the dietriot. Conseq9kuatly, you are advised that the Sunnyvale Town Counc$~l Is not authorized to act In the oapaclty of a school board for the Sunnyvale IndependentSchool Dlskrlct. Under the authority In the holding of McKlnne v. Blankenshlp, suprs, It Is our opinion tha 7-d State Commlsslonerof Education does not have the discretionunder the facts submitted to withhold Foundation School F+rogr@mfbnds Wcm the Sunnyvale IndependentSchool District, Atto ey B&era1 of Texas Prepared by Ivan R. Wllllans, Jr. Assistant Attorney Qetaeral APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman W. E. Allen, Acting Co-Chairman W. 0. Shultz Ray WcQregor John Reeves Wardlow Lane MKADE F. GRIFFIN Staff Legal Assistant ALFRED WALKER Executive Assistant NOLA WHITE First Assistant -2862-