Untitled Texas Attorney General Opinion

- , Hon. Ralph Logan Opinion No. O-4198 County Attorney Re: Authority of the Board of Trus- Tom Green County tees of an Independent School District San ,Angelo, Texas to create by resolution a Junior Col- lege District with boundaries cotermi- nous with those of the Independent Dear Sir: School District and related questions. We are in receipt of your letter of October 31, 1941, requesting our opinion on certain questions arising our of the facts hereinafter stated. The facts are that in the year ~1928 the City of San Angelo, which then had control of its public schools built a Junior College and put the same In operation that year. Such Junior College, known as the San Angelo Junior College, has from that time on been operated and conducted continuously and during all such times has been recognized as a standard Junior College by the State Department of Ed- ucation, and during all such.times there has been no change in the status of said Junior College except that on March 24, 1936,:the qualified electors of~the City.of San Angelo duly voted to separate the public schools of the City of San Angelo from municipal control~and after such date such Junior College was operated by the San Angelo Independent School District which was created as'a result of such elec- tion. Question No. 1 reads as follows: "Does the Board of Trustees of the San Angelo Independent School District have authority to cre- ate by resolution a Junlor'College District with boundaries the same as the boundaries of the San hngelo Independent School District which will be a legal entity separate and apart from the San Angelo Independent.School District but under the control of the Board of Education of said San Angelo,Inde- pendent School Distrlct?'~ The authority for the establishment of Junior College Districts by an Independent School District or city which has assumed control of its schools is found in Chapter 290, Acts . . 1 Hon. Balph Logan, page 2 of the Forty-first Legislature, Regular Session, and carried forward as ,k,ticle 2815h of Vernon’s Annotated Civil Statutes. Section 2 thereof reads as follows: When it is proposed to establish a Junior College District as above provided, a petition praying for an election therefor, signed by not less than five per cent of the qualified taxpay- ing voters of the proposed territory shall be presented to the Board of Education of the dis-~ trict or city. It shall thereupon become the duty of the Board so petitioned to pass upon the legality of the petition and the genuineness of the same. It shall then be the duty of the Board to forward the petition to the State Board of Education.” Section 3 provides that following the approval by the State Board of &3ucation as contemplated by Section 2, the Board of Education of the Independent School District should then enter an order for an election to be held in the proposed territory within a time not lass than twenty days and not more than thirty days altar such &r is iced to determine vhe- ther or not such Junior Co.l4r PLltrlct shall be created. Such order shall contain a deacrfptlon of the metes and bounds of such Junior College District to be formed, and shall fix the date for si;ch election. If a majority or‘ the votes cast by, the qualified property taxpaying voters of such district shall be in favor of the creation of a Junior College District the same shall be deemed to be formed and created, and said Board of Education shall within ten days make a canvass of the returns and declare the results of the election, and such results shall be entered upon the Minutes of the Board of Education of the Independent School District. Section 4 provides that the Board of Education of such Independent School District shall be the govern;tng body of such Junior College District. Section 5 provides that the Board of T!ruste6S of Junior College Districts shall be governed in the establishment, manage- ment and control by the general law governing the establishment, management and control of Independent School I&strict s insofar as the general law is applicable. Section 1.6 reads in part as follsua: nAny public Junior College now organized and conducted in the State of Texas which had been Hon. Ralph Logan, page 3 t. actually in operation prior to January 1, 1929 or which is recognized as a standard Junior CoI- lege by the State Department of Education, is hereby validated end may, by action of its Board of Trustees, choose to be governed by the provi- sions of this Act, and receive the privileges of $$;*;ame at any time that it may desire to do so. It will be observed that prior to the enactment of Chapter 290 by the Forty-first Legislature, Regular Session, there was no law authorizing the creation of Junior Colleges and the Legislature apparently intended by the adoption of Section 16 to confirm the action of Independent School Dis- tricts and cities inn having undertaken to establish and oper- ate Junior Colleges without express authority of law. Section 16 certainly, in pert, is a validating provision and to that extent such measure is ,necessaril~y restospective and should be so construed. We think that the law is well settled on this point. A validating act isone enacted for the purpose of con- firming rights arising out of past transactions. In other words, the object of'such an Act is to give effect to the in- tention of parties to enable them to carry into effect that which they have designed and.attempted but which failed of its expected legal consequences only by reason of some statutor disability. See Runt County vs. Rains County, 7 S.W.(2d) 6C8. ,A.Junior College Districts authorized by this Act, supra, is required, to be created in the, manner prescribed, but as to those certain Junior Colleges which existed prior to its enactment, the law through the adoption of Section 16, in effect,, empowered the Boards .of Trustees of such Junior Colleges to create a Junior College District by sim- ple resolution. The language used however merely provides that following the adoption of such resolution a Junior College could thereafter enjoy the privileges conferred on other Junior College Districts formed pursuant to the Act. We think the ultimate effect of Section.1~6 is to create a Junior College District but in the instant matter it will be seen that the Board of Trustees as it existed did not avail itself . - of _the authority conferred by Section 16. On the contrary Dy legal procedure the entity was changed in 1936, and in our opinion such change has precluded the Board of Zduca- tion of the new entity, the Independent School District, from obtaining the benefits accorded by Section 16 to the. prior Board, namely, the governing body as it existed while the San Angelo Schools were under the control of the city. In our opinion the proposed Junior College District C.i must be established in the manner provided by Sections 1, 2, ,-. Hon. Ralph Logan, page 4 f '. 3 and 5 of Chapter 290 of the Acts of the Forty-first Legis- lature, Regular Session, carried forward as Article 2815h of Vernon's Annotated Civil Statutes. Having concluded that the Junior College Mstrlct cannot be created by resolution of the Board of Trustees of the Independent School District, it renders an answer to Questions Numbers 2 and 3 unnecessary* Your fourth question reads as follows: "Does the Board of Trustees of the San Angelo Independent School District have authority to order an election upon proper petitions and submit to the qualified voters of said district three propositions, namely: "1. Shall the San Angelo Junior College District be created with boundaries coextensive with the boundaries of the San Angelo Independent School District? "2. Shall a tax not in excess of the statutory limit'be levied by such district for Junior Col- lege purposes? “3. Shall such Junior College District issue its bonds in the aggregate sum of $200 000 for the purposes set forth in Section 7, oh Article 281611, R.S. 1925 (as amended)?" Section 5 of Article 2815h of Vernon's Annotated Civil Statutes confers upon the Board of Trustees of the San Angelo Independent School District the dual capacity of governing body of the Independent School District and the Junior College Dis- trict when same is created, but until it is legally establ;;:: such a district, of course, can have no governing board. can be no governing board de facto or de jure in a non-existent offict. In other words, where there is no office there can be no officer. See Gray, et al. Vs. Ingleside Independent School Mstrict, et al., 220 S.W. 350. Also Texas Jurisprudence, Vol. 34, Sections 161 and 162. In our opinion the Board of Trustees of the San Angelo Independent School District has no authority to order en elec- tion for any purpose with reference to the Junior College Dis- trict except for the.creation thereof as is provided by Section 2 of Article 281511 of Vernon's Annotated Civil Statutes, and as is illustrated by proposition number one in your fourth question. (t; . ,.. . _ Hon. Ralph Logan, page 5 Following the legal establishment of the Junior Col- lege District and the assumption of the duties as governing body of such district the Board may then exercise the powers conferred by law. It is our opinion that the last two stated proposl- tions may be submitted to the voters only after the Junior College District has been created and the governing body there- of has assumed.its duties. Accordingly, this question must be answered in the negative. APPROVED NOV 19, 19bl Very truly yours /s/ Grover Sellers FIRST ASSISTANT ATTORNEY GENERALOF TEXAS ATTORNEY GENERAL By /s/ Clarence E. Crow.e APPROVED:OPIEION COMMITTEE Clarence E. Crowe, BY: BWB, CHAIRMAN Assistant CIX-s:wb