Hon. Jhlnia zimmernlann Opinion HO. V-1193
County Attorney
Swisher County Re: Eligibility to vote in
Tulla, Texas ii elections to convert
rural high school dis-
trlcts into independent
Dear Sir: school districts.
We refer to your request for an opinion of this
office concerning eligibility to,vote in an electton to
ccnvert a Pural high school district into an independent
school district. S .B. 316, Acts 52nd Leg., R S. 1951, ch.
42, p. 69, codified In Vernon’s Civil Statutes as Art.
2922&(5)l
Article 29221(5), supra, provides in part as
follows:
‘Section 1. Upon a petition properly
signed by twenty (20), or a majority, of the
legally qualified property taxpaying voters
residing in any rural high school district
In which there is maintained a first-class
high school of twelve (12) grades, offering
sixteen (16) or more credits, the County
Judge of said county shall issue an order
calling for an election to be held not less
than twenty (20) nor more than thirty (30)
days from the date of filing of said peti-
tion, for the purpose of converting the rural
high school district into an independent
school district for school purposes. After
said election is held, the CammIssioners Court
shall canvass the re,turnsthereof as in other
similar elections, and if the majority of the
votes cast favor the change from a rural high
school district into an Independent school dis-
trict, then said Con&ssioners Court shall en-
ter its order'to that effect and Incorporating
said independent school district. . . . There-
upon, such ‘independentschool district’ shall
thereafter be regarded as duly incorporatedfor
free school purposes only and shall have and is
.. .
Hon. Dennis Zlmmermann,page 2 (V-1193)
hereby vested with al.1the rights, powers and
privileges conferred and imposed by the General
Laws of this State upon independentschool dis-
tricts.
". . .
'Sec. 4. All bonds issued by and out-
standing against any such rural high school
district; as a school district, and all obli-
gatlozs, contracts and indebtednessexisting
against the rural high school district, shall
become the obligationsand debts of the ln-
dependent school district at the time of Its
incorporation;and the said independentschool
district, after same has been Incorporated,
shall be held to have assumed the discharge
of all such obligations,contracts and lndebt-
edness, and the same shall be enforceableand
collectiblefrom, paid off and dischargedby,
the said Independent school dlstM.ct, as if
or1ginallg created by it as an independent
school district; and it shall not be neces-
sary to call an election within tindfor such
district for the purpose of assuming such
bonds and other indebtedness. . . ." (Em-
phasis added.)
In connectionwith that law, you ask these quea-
tions:
1. Is the election limited to only qualified
property taxpaying voters?
2. Who Is to pay for the expenses of holding
the election?
It is observed that Article 2922&(5) provides
that the petition invoking power In a county judge to call
sucn an incor oration election must be "properly signed
by twenty (20P or a majority, of the legally qualified
property taxpailng voters residing In any rural high school
district" designated therein. But the law does not state
the quallflcatlonof voters who may vote ln a called elec-
tion. It simply states that "If the majority of votes
cast favor the change . . . said ConrmlssionersCourt shall
enter its order to that effect."
A similar situation is apparent in Article 2742j,
V.C.S., as amended. That law proOides for the incorpora-
tion of certain common school districts into independent
. .
Ecn. Dennis Zlmmermann, page 3 (V-1193)
school districts. In an opinion of this office concern-
ing qualified voters under Article 27423, It was held
that all persons who are qualified voters and who are
residents of a common school district as designated in
that law, are entitled to vote In an election held un-
der and for the purpose set out therein, citing Article
2955 on the matter of qualification. Att'y Gen. Op.
V-348 (1947). Under that holding, qualified voters were
not restricted to qualified property taxpaying voters.
The slmllarity between the provisions and wording of
Section 1 of Article 2742j and Section 1 of Article
2922l.(5)is so striking as to make It apy;earthat the
latter was patterned after the former.
Unless therefore, the presence of Section 4
in Article 2922115) which does not appear In Article
27425, imposes ~ome'restrlctionon the qualificationof
voters under Article 29221(5), the holding in Opinion
V-348 should control the znswer to your first question.
The purpose of Article 29221(5) is singular.
It is to provide for the lncorporatloiiby election of a
rural high school district (classifiedas co!mon under
Article 2922b, V.C.S.) into an Independentschool dis-
trict. The boundaries of the successor district result-
ing from such an election favoring the conversionwill
be cotermlnouswith those of the former rural high school
dletrlct. The obligations,bonded and other indebtedness.
of the original distrfct will become those of the successor
district to discharge. Section 4 so provides. A school
district can no more escaue its o~l~i~ationsbr incoroorn-
tlcn or conversion than it~could by vdissoluti~n.
Mount Independent School Mat. v. Jackson, 152 S.W.26
-f 00
lTex.Clv.App. lgql:-error r%?T-
Indeed, Section 6 of Article 2786b, V.C.S. spe-
clfical3.yprovitles a8 follows:
"Xr.each insts.ncewherein a common
school district 5~s been or shnll hereafter
be converted into 8n lndeuendent school dis-
t;c; rdaln each instance wherein a dis-
f ny kind or class has been converted
into a district of s.nykind or class the
'boundariesof said original district and of
said successor district being Cotermlnous,
the inflebtednessof said original district
shallbe ~leldand.consideredand is hereby
declared to be the indebtedness of said 8uc-
cesaor district without the necessity of an
- .
Hon. Dennis Zimmerman, page 4 (V-1193)
election of any character for the assumption
of such indebtedness,and the duty is hereby
Imposed on the governing board of such suc-
cessor district to levy and collect annually
taxes against all of the property in said dls-
trlct, sufficient to pay the interest and to
pay or provl.dea proport&$natepart of the
principal thereof. . . . (Emphasisadded.)
Thus, Section 4 of Article 29221 5) merely ex-
presses the law as set forth in Article 27
4 6b with re-
spect to the obligations of a school district converted
without change of boundaries Into another type of school
district, and makes it c;.earlyapplicable to rural high
school districts converzteQiatoindependentschool dis-
tricts. Section 4 states that all bonds outstanding
against any such rural high school district, as a school
district shall become the debts of the successor inde-
mchool district. The underscoredphrase consti-
tutes a limitation on the assumption of bonded indebted-
ness under this law, and prohibits the assumption of
outstandingbonded Indebtedness of elementary districts
of the rural high school district which had not previous-
ly been assumed by the rural high school district, as
such, under an election as provided in Article 292211
V.C.S. It appears that Section 4 of Article 29221(51 was
carefullyand successfullyframed to avoid violatTon of
Section 3a of Article VI, Constitution of Texas. Clear-
ly, It is not the purpose of Section 4 or any part of
Article 29221(F) to authorize therein an election for the
assumption oT bmded or other indebtedness.
Since the avowed Intent of Article 29221(s) is
not to authorize an election for the assumption OT a debt,
bonded or otherwise,its sole purpose being to provide an
election for the conversion of a rural high school Bis-
trict, It is our opinion that all persons who are quall-
fied voters under Article 2955, V.C.S., and who are resi-
dents of the rural high school district are entitled to
vote in an election held for the purpose set out in Artl-
cle 2922&(5). See also Art. 2954, V.C.S.
With respect to your second submitted question,
Article 2746b, V.C.S., provides In part as follows:
WAll expenses Incurred In connection
with or incidental to any school district
election In connectionwith the public school
within such school district shall be paid out
- .
Hon. Dennis Zinrmermann,
page 5 (V-1193)
of the available maintenance fund belonging
to such district . . .'
See Att'y Gen. +a. O-623 (1939), O-4919 (1942), O-7187
(1945)*
It may not be amiss to direct the attention of
those rural high school districts which contemplate con-
verting or Incorporatinginto independent school districts
to the case styled Bigfoot Independent School Dist. v.
Genard, 116 S.W.28 804 ffirmed in 133 Tex. 368 129 S.W.
-3 (1939). It heidathat where after a co&on school
district has voted a maintenance tai, the district was re-
gularly converted into an independent school district, the
independent school district could not impose the mainte-
nance tax without having first obtained the approval of the
property taxpaying voters of the new district, notvithstand-
ing the independent district embraced the Identical terri-
tory which formed the common school district. Also see
Pyote Independent School Diet. v. Dyer, 34 S.W.2d 578 (Tex
8omm.A~~. 1931) .
All persons who are qualified voters and
who are residents of a rural high school dis-
trict of the designation and descriptlcm set
out in Senate Bill 316, Acts 52nd Lsg., R.S.
1951, ch. 42, p. 69 (Art. 29221(5), V.C.S.),
are entitled to vote in an eleztlon held there-
under for the oonverslan of such a rural high
school district into an Independent school:dls-
2955, u'.C.S.;Att'y Gen.
Under Article 27&b, V.C.S., the expenses
of such an election shall be paid out of the
available maintenance fund belonnlne to the
district. Attig beni opa. 0-623v(1339j,
o-4919 (lg42), 0-7187 (1946).
APPROVED: Yours very truly,
J. C. Davis, Jr. PRICE DANIEL
County Affairs Mvlslon Attorney General
Jesse P. Luton, Jr.
Reviewing Assistant
Charles D. Mathews
First Assistant Chester E. Ollison
CEO:mw Assistant