Untitled Texas Attorney General Opinion

ELmarableJ. A. Guest County Attorney camp couuty Pittsburg,Texas Dear SFr: opiIlion Be. o-llo6 Re:Independentschool districttaking over schoolsof a city under Article 2783b has the right to cdlect &liwWent t-axes assessed by the city for school purposes. we have your letter in which you say2 9% city of Pittsburghas been operatingforthe past forty years under &Mole 2783b, Civil Statutes,and has been lavyingOneDo~rf~school~~uon~cbOneB[~ed Dellarsvaluation. An electionwas held April, 1938, at which electionthe 8cparationof the schools from the city was a* authorised. There is now, on the city's tax rolls, sona Twenty-fiveThousandDollars in delinWent twea that were leviedby the city for school purpeses. The Board of Trusteesef PlttaburgIndependentSchsel District,elected since the divorcementef the city and scheels,aredesirous of collectingthe delinment school taxes now on the city's '3.a~ rolls. Since they have assumedthe outstandingbonds and indebtednessagainstthe school district,they think they have authorityte collectsaid delinquenttaxes and. slpplysame for schoolpurposes." As ve understandit the territoryof the districthas not been changed. You desireto know uhether mr net the presentPittsburgIndependentSchool Districthas the right to collectthe taxes that were assessed and levied for s&eel purposesby the ci* of Pittoburgprior to the change in the s&eel district'sorganizationin 1938 and that have not yet been ma. 1n1905 theLegislaturepclssedalaw-as SenateBill 218 oftbe29th Legislature,RegularSassian,which still renmins en the statutebe&s of Texas as Article2768 muI 2771, Bevised Civil Statutes,and which read as folleus: - - HonorableJ. A. Ciuest, Page #2 (O-1106) “Article 2768. Any city or town in this State may acquire the exclusivecontrolof the public free schoolswithin its limits. Any city or town which has heretofore,under the Act of March 15, 1875, or any subsequentlav, assumedcentral d the publicfree schoolsvithin its limits,and has oontinuedto exercisethe same until the presenttime, or any city or town which may hereafterdetermineso to do by majori* vote of thepropertytax payersof mid city or town voting at an electionheld for that purpose,amy have exclusivecontrolof the publicfree schoelsvithin its limits." "Article2771. Schoolsthua organizedand providedfor by incorporatedcitiesand towas shall be subjeotto the general laws, so far as the sameare applicable;but each city or tam having controlof schools,within its limits shall constitute a separate school district,,and may providefor the organization of schoolsand the appropriatiom of its school fuuds in such manner as may,be best suited to its populationand condition." The authorityfor these statutesis f0ma In ArticleVII, Sectlen 3, and ArticleXI. Section 10, of the Constitutionof T-8, which read in part as folkws: "Sec. 3. ~. . . the Legislaturermyalsoprovideforthe formationof school district(8) by generallaws: . . ." "sec. 10 The Legislaturemay constituteany city or tovn a separate and independentschooldistrict.. . ." 1n 1935 the Legislaturepasseda lmr known as House Bill 831 d the 44th Legislature,Regular Session,which is now condifiedas Article2783b, Vernon'sAnnotatedCivil Statutesof Texas. It provides in section 1, 2, 3, and 4 that "the term %nmicipol school district'. . . ahall include any city or town constitutinga separateand independentschool district under authorityof Sectien3, of ArticleVII of the Constitution,and/ or Section10, ArticleXX, of the Constitutiom, boundariesof the school corporationbeing the sama as the boundariesof the city or town" in those cases vhere the uity has a populatienof 30,000 or less, and that "whenany Qaunicipalschool district'. . . shall desire to have the public schoolvithin its limitsseparatedfrom muuieipalcontrol"the same shall be dome by one hmudredvoterspetitioming for am election,and an election being held in which all of the qualifiedvoters decidewhether or not the schoolashouldbe seprated from the city, and if a majorityvote for such a separationthen an indepandentscheol districtis therebycreated,and said law (&use sill 831, 44th Jag.) then providesin sections5, 7, 8, and 9, as fell&: Page #3 HonorableJ. A. Sues+., (0-llO6) "sec. 5. Except as herein denied or limited,all the power8 conferredupon independentsohooldistricts and/or twns and villageeincorporated for free school purposesonly, by Title 49, of the RevisedCivil Statutesof Terss, of 1925, andawndm2nt.s thereto,lncludingtherightto anuexccmt~us ~rltoryfcaschool~~es,andthcri~ttolevyb~ and issuebonds for schoolFUXpOseS, as providedby Senaral Law, are hereby conferredupon any independentschool district separatedfrom municipalcontrolunder the provisionsof this Act; . . ." "Sec. 7. That the Board of Educationor board of trusteesof such independentschool district,after separationfrom municipal~control, shall have authorityto providefor the taxes of said independentschool districtto be assessedby the Assessorand Collectorof Texas of the city of vhich such school districtvas formerlya part, or to have the taxes of said districtassessedand collectedby an assessorand collectorappointedby the board of trustees. Such assessor and collectorshall be sllowedand paid such compensationas is now or may be hereafterprovidedby law." "sec. 8. The title and rights to all propartyowned,held, set apart or iu any way dedicatedtc the use of the public schoolsof the city or town, and/orheretoforevested in such city or tomand/orthemayor, chairmanoftha commission, city council,city cossissionor board of schooltrusteea of such city or town, prior t- separationfrom municipal controlas herein authorizedand provided,shall be and are hereby investedin the Board of Educationor board of trustees of such independentschool district,after separationfrom municipalcontrol,and shall be managed and controlledby the Board of Educationor board of trusteesthereof,as is mm or may hereafterbe providedby law." "Sec. 9. Allbouda issuedbyaxdoutstandingagainstany such city or town, as a mnicipal school district,and all obligations,contractsand indebtednessexistingagainstthe city or town, as a nuuicfpalschooldistrictshall become tha obligationsand debts of the independentschool districtat the time of its separationfrom municipalcontrol,and the said independentschool district,after separationfrom municipal control,shall be held to have assumedthe dischargeof all such obligati6ns,contracts,and indebtedness, .aud:,tha same shall be eniorceableaud collqztiblefrom, paid off and.dischar@ by thq said independentschools district,as,if originallycreated.byit as a separatelandindependentschool district;and it shall not be necessaryto call an electionwithin and for-suchdistrictfor the purposeof assumingsuch bonds and other indebtedness." HonorableJ. A. Guest,Page # 4 (0-1106) We assume that the publicschoolsinthe city of Pittsburgwere controlled by the city under the a~l:hority of Arr:.icle VII, Section 3. and ArticleXI, Section10, of tha Constitution,and Articles2768 and 2771 of the Stat- utes (quotedabove),and that the change of the controlof the schools from the city to the newly createdindependentschooldistrictwas under the authorityand procedureof Article27&b, which did not become a law until 1935. We think that.priorto the change in the controlof the Pittsburgschools, by a vote of the people,in 1938, the city of Pittsburgconstituteda school district,and that its status as a school districtwas distinct from its statusas a municipality,even thoughthe same city councilor governingbodygoverned the schoolsend the muMcipalityj and when the changeoccurredin 1938 it merely amountedto changingthe form and name of the school district. The nev independentschool districtwas the sama districtas the former city school district,having a different name and a differentgoverningorganization.This belief on our pert is supportedby the case of Temple Independent,School Districtv. Proctor, (Tex.Civ. App.) fl 9. W. ,(2)1051, in which the court, speakingthrough JusticeDaugh, said: -... . It is now settled,however,that,where such city does assums controlof its schools,such control,so far as the schoolsare concerned,doas not become merged into ani become a part of the municipalgovernmentas such. And where the tiltscommissiq~rs or city councilretain controlof its public schoolsit acta in a dual capacity-- one as a governingbody of the city in ita status as a municipality,and the other as the controllingor governingboard of its schools. The two capacitiesare not to be confused. City of Rockdalev. Cureton,111Tex. 136, 139, 229 9. W. 852; City of Fort Worth v. Zane-Cetti(Tex.Corn.App.) 278 S. W. 183. In so far as it acts in its strictlymunicipalgovernmental capacity,its powers are referableto Article 11 of the Constitutionand title 28 of the B. S. (Article961 et saq., as amended (Vernon'sAnn. Civ. St..Art.961 et seq.). Whereas, in the managementand controlof its schools,its powers are refaable toArticle 7 of the Constitutionand.title49 of the R. 9. (Article 2584 et sea,., as amended (Vernon'sAnn. Civ. St. Art. 2584 et seq.) ..." It is apparentfrom a readingof Article2783-0 that the board of trustees of the independentschool districtscreatedunder the act have all of the ordinarypowers of a school districtgoverningbody, including"authority to providefor taxes",and that "the title and rights to all property owned,held or in any,waydedicatedto the use of the public schoolsof the city . . . prior to the separationfrom municipalcontrol"vests and passe8 to the new independentschool districtand 18 subjectto ItSi control,when such new districtis created,and that the bonds and indebtednessand obligationsof such city, "as a municipal,school district", HonorableJ.A. Guest,Page #5 (O-1106) areasszaedand teken over by the newly createdindependentschool district. We think this indicatesthat it was the intentionof the legislaturefor the new independentschool districtto take the place of the old city districtand for the new districtto take over everything,both tangible and intangible,from the old district,includingassets and liabilities. We can not conceiveof the legislatureintendingfor the new district to be obligatedto pay the old district'sdebtswithout having the right to collectthe money due the old district. When one person takes over anotherperson'sbusinesshe ordinarilyacquiresthe "accountsreceivable" as well as the "billspayable". We have been unable to find any Texas appellatecourt case on this particularquestion,but we do find significant languagein 56 CorpusJuris 271, as follows: ". . . Where a districtis dissolved,abolished,or destroyed,and one or more new districtsare created from the territorythereof,or its territoryis annexed to one or more existingdistricts,the new or other districtor districts.in the absenceof contrarystatute, become and are entitledto all the propertyand rights of the old district,. . ." The authorityto collectthese delinquenttaxes was clearlyone of the vrightsof the old district,"and the new districtis entitledto that right. Our answer to your questionis that, under the facts you have given us, the presentPittsburgIndependentSchoolDistricthas the right to collect the taxes that was assessedand leviedfor school purposesby the city of Pittsburgprior to the change in the school district'sorganization in 1938 and that have not yet been paid. Yours very truly A!Pl!ORREY -oFTExAs s/CECIL c. ROTSCH By CECIL C. RCPSCH Assistant CCR:PL-ldw APPROVEDAUG. 15, 1939 s/ GESALDc. l4m-N ATTORNEYCgloERALmTExAs APPROVED OPINIOACOhQiRTSS BY R. w. l?.cHAIRMAR