- ,
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
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