Honorable T. M. Trimble, First Assistant,
State Superintendent of Public Instruction,
Austin, Texas.
Dear Sir: Opinion No. O-7252
Re: City Charter conflict with stat-
utes as to term of school trust-
ees and authority of trustees to
control school property.
We are in receipt of your letter of May 27. 1946. in which
you submit the following questions to this department for our opinion:
“1. Are we correct in assuming that trustees of the
Vernon Independent School District shall serve
for three year terms?
2.. Does the City Charter provision which seeks to
‘~ limit the tenure to two consecutive terms total-
ing four years have any restrictive power in the
face of the provisions of the State Law?
3. Can the City Charter be interpreted to prevent a
member from serving more than two consecutive
:three,,year terms if it cannot restrict thentenure to
“a ‘total of four years ?
4. Article 2773 provides for the sale of school prop-
erty by the board of Trustees and the investment
of the money in more convenient School property. : ‘:
Does this give the Trustees the legal right to buy ,I
property needed for school purposes ?
5. If it should be necessary for the proper authority
to file condemnation proceedings or suits to pur- i
chase property required for school sites, would
such proceedings be instituted by the School Trust-
ees or the City Commission?
6. We have voted bonds for the construction of build-
ings, the acquisition of sites, etc., the bonds have
b,een sold and the money is in cash or securities
for the Building Fund of the School District. Is it
the responsibility, solely, of the Board of Trustees
to enter into contracts for the completion of said
building programs 7”
Honorable T. M. Trimble, Page 2 (O-7252)
Article 2774a (VACS) provides in part as follows:
“Section 1. Towns and cities which have here,tofore
chosen their trustees by appointment of the City Council or
Bonrd of Alderman, shall be authorized to continue to choose
their trustees in this manner; that is, by the appointment by
the Board of Alderman of said city or town; provided, that
seven trustees shall be appointed, three of whom shall serve
for one year, and two for two years and two for three years,
and each year thereafter, three trustees or two trustees shall
be appointed for a term of three years, ~ D D w
By virtue of Article 2771, school districts under the control
of incorporated towns or cities are subject to the general laws; therefore,
Article 2774a is applicable to the Vernon Independent School District.
The charter of the City of Vernon, as adopted in 1916, pro-
vides in Section 2, Article VI thereof that each of seven trustees of the
school board shall be appointed by the City Commission to serve for a
term-of two (2) years.
Article 2774, as enacted by the Legislature in 1905, provided
for two (2) year terms for school trustees. The Forty-First Legislature,
in 1930, enacted what is now known as Article 2774a, providing that Board
of Trustees of municipally controlled school districts shall be appointed
for aterm ‘of three (3) years, by virtue of a Constitutional Amendment
adopted in 1929 (Sec. 16, Art. VII), Section 7, which is the repealing clause
of Article 2774a, provided that:
“All laws and parts of laws, both general and special,
in conflict with the provisions of this Act are hereby repealed.”
Considering the statutory provision above-quoted, you are
advised, that your first question should be answered in the affirmative;
that U&trustees of the Vernon Independent School District should serve
for three ,(3) year terms, and that the charter provisions of the City of
Vernon in conflict with Article 2774a are invalid,
The above statement also applies to your second question;
namely, ~the further provision of the Vernon Charter in Section 2 of Ar-
ticle VI thereof limiting the tenure of school trustees to four (4) consecu-
tive years until the expiration of two years from and after former service
as school trustee, being inconsistent with the provision of Article 2774a,
is invalid.
Your question as to whether the Vernon Charter can be in-
terpreted to prevent a trustee from serving more than two consecutive
three (3) year terms must be decided first upon the basis of whether such
interpretation is a fair construction of the charter, and secondly, whether
Honorable T, M. Trimble, Page 3 (O-7252)
such interpretation is consistent with the general law as expressed in Ar-
ticle 2774a and other pertinent statutes.
The second paragraph of Section 2, Article VI of the Charter
of the City of Vernon reads as follows:
“At the first meeting of the Commissioners herein
provided for, or as soon thereafter as practicable, they
shall appoint seven school trustees and provide that four
of the said trustees shall serve for two years and three of
the said trustees shall serve for one year; provided that
no school trustee who has heretofore served or who may
hereafter serve as such for a period of four consecutive
years, shall be eligible to reappointment, until the expira-
tion of two years from and after his former service as
school trustee.m
According to 30 Tex. Juris. page 53:
“In interpreting (a municipal charter) it is the duty
of the court to ascertain, if possible, the intent, and, when
so ascertained, to give it effect. State ex rel Barron v.
Wofford 90 Tex. 514, 39 S.W. 921. The language must be
construed as written, unless it is apparent that this would
defeat the intent. If possible, the charter should be so con-
strued as to avoid absurd and unjust consequences, and so
as to,uphold ~rather than nulify it. A construction should be
adopted which comports with the general public policy of the
State, rather than one which would outrage such policy and
destroy its ideals of Government.”
Plainly, the intention of the people, as expressed in the sub-
ject charter provision, was to limit the tenure of school trustees to two
(2) terms, each of such terms being for two (2) years, (such two year terms
having been in accordance with constitutional and statutdry provisions in
force at the time this section of the Vernon Charter was adopted, prior to
1928). As stated above, with the change in the statutory provision regard-
ing the term of school trustees, the limitation of the Vernon Charter in
that respect is no longer valid. However, a fair and reasonable construc-
tion of such charter, in our opinion, should not defeat the intent of the peo-
ple of the City of Vernon to limit school trustees to two consecutive terms
of office, unless the expression of such intent is inconsistent with the ap-
plicable general laws of the State.
Section 32, Article 1175 (VACS 1925) gives to “home rule”
cities, such as Vernon, the power to provide for the establishment of pub-
lic schools and to have “exclusive control” over same and to provide such
regulations and rules governing the management of same as may be deemed
advisable. In the case of Temple Independent School District v. Proctor
(Civ.App.) 97 S.W.(2) 1047, the court said:
Honorable T. h& Trimble, Page 4 (O-7252)
“We think the language of subdivision 32 of Ar-
ticle 1175 (VACS 1925) 0 a . carries with it the neces-
sary implication that such ‘exclusive control’ means
control to the exclusion of the control exercised by the
county or state over other types of independent school
districts authorized and provided for by the school laws;
and does not mean that by such “exclusive control’ such
&strict6 are not amenable to the general school laws
applicable to such drstrrcts. To hold otherwrse woum be
to ignore the very limitation in the Constitution itself
thatthe charters-of home rule cities must conform with
the Constitution and the general laws of the State.”
(Emphasis ours.)
30 Tex. Juris, page 180 holds as follows:
“As long as the State does not, in its Constitu-
tion or by general statute, cover any field of the activi-
ties of cities, any given city is at liberty to act for it-
self* But where the State has adopted a general law and
applied it to all cities of a certain class. no city of that
class may enact legislation in conflict therewith. (City
of Beaumont v. ,Fall, 291 SW. 202). Both the home-
amendment to the Constitution and the statute provide
that no home rule charter or ordinance passed under the
same shall contain any provision inconsistent with the
general laws of the State. Such powers as are not granted
to the qualified voters of cities by the amendment are fe-
served to the Legislature; and matters of regulation or
control not so vested in the voters are proper subjects
of legislative action and control. The amendment renders
invalid provisions of existing charters which are incon-
sistent with subsequently enacted general laws.’
The Legislature having applied a general law (Article 2774a)
to all cities of the class of Vernon, regarding the numbe,i.~.roethod of se-
lection. andfersl of off&x-of schooltrustees. it is,the opinion of this de-
partipmt.~that* ~CiSywf Vsimm has ~3x0au~tu limit.~the~~tenure of
.office of schuoLtrustsasto-two-ter%ns, since such iegislation would be
inconsistent with the provisions of Art. 2774a, and therefore your third
~,question is answered in the negative.
Your fourth question relative to the power of the school
trustees to buy property needed for school purposes is not, as you suggest,
governed by Art. 2773, which relates solely to the sale of property held in
trust by any citywn for public school purposes, and giving to the Board
of Trustee~s of such city or town, authority to sell such property with the
consent of the State Board.
Honorable T. M Trimble, Page 5 (O-7252)
Thisquestion which you have raised, both directly and by
implication, as to the division of authority between the Board of School
Trustees and the municipality in school districts which have been as-
sumed by incorporated towns and cities, is answered in the cases of
Hamilton v. Bowers, 146 SW. 629 (Civ.App,), Poteet v. Bridges, 248
0 . 5 (Civ,App.), and Temple Independent School District v. Proctor,
97 S.W. 2 1047 (Civ.App.).
In the case of Hamilton v. Bowers (supra) the Board of
School Trustees for the city of Palestine brought suit against the mayor
and city commissioners to compel them to turn over to the said trustees
certain funds, the proceeds from the sale of bonds issued by the said
city to provide funds for the erection of a new schoolhouse. The mayor
and the city commissioners were preparing to expend said funds for the
purposes for which they were provided, when the trustees, claiming that
they had the exclusive right to the possession, control and disposition of
the funds, brought suit to obtain such funds.
In its opinion, the court, citing provisions of the Public School
Act of 1905, (which now appear in V.A.C.S., 1925, as Articles 2768, 2772,
2773, 2801, et al) held as follows:
“These provisions of the statute expressly give to the
appellants the exclusive control and management of the public
free schools in the City of Palestine and places in them, ‘the
title to all houses, lands and other property owned, held, set
apart or in any way dedicated to the use and benefit of the pub-
lic free schools of said city.’ We cannot, however. agree with
appellants that the sections of the act above set out give them
the exclusive right to the possession of the funds in question,
or the exclusive right to contract, for the construction of new
schoolhouses, or the repair of those now in use. and take from
the city authorities the right to use this money in the construc-
tion of a new schoolhouse and the repair of those now in use.
Section 147, above quoted, expressly authorizes the city to pro-
vide for building sites and buildings for its public free schools;
and we think when, as in this case, the city has issued and sold
its bonds, and thereby created a fund for the construction of a
schoolhouse, it is authorized to uses such funds for the purpose
for which they were created, and is not required to turn them
over to the school trustees. (timphasis ours).
“As before said, there is no express provision of the
statute which imposes such duty or obligation upon the city;
and such obligation does not arise by necessary implication
from the general purpose and intent of the act, considered as
a whole. The right of the exclusive control and management
of the public free schools and the vestiture of the legal title
to all property owned by or dedicated to the use and benefit
of such schools do not necessarily carry with them the right
Honorable T, M. Trimble, Page 6 (O-7252)
to the possession and the disposition of all funds created by
the cityfor school purposes.
‘“It is, we think significant that section 137 of the act,
above mentioned, which directs that “all moneys and funds
arising from the assessment and collection of any special
taxes in such city or town for public free school purposes
shall be by the assessor and collector, or other proper of-
ficer of such city or town whose duty it is to collect the tax-
es+ turned over directly to the treasurer of the board of
trustees.’ gives no such direction as to moneys or funds
procured by the city by the sale of bonds issued and sold
bl it under the authority given it under section 147, before
quoted, to provide for school buildings. If it had been the
legislative intent that all moneys and funds provided by the
city for school purposes should be directly turned over to
the treasurer of the board of trustees, it would not have con-
fined or limited the provisions of section 137 to moneys or
funds arising from the assessment and collection of special
taxes. The moneys derived from special school taxes. which
are only levied for the purpose of procuring funds to meet
the ordinary current expenses of conducting the school, are
properly placed in the hands of the trustees, who have the ex-
clusive management and control of the schools, and should
have at their disposal the funds necessary to meet the con-
tracts of the teachers employed by them, and the other ex-
penses necessarily incurred by them in the management of
the schools; but no such reason exists for giving to the trust-
ees the exclusive right to hold and direct the expenditure of
money provided by the city by the sale of its bonds for the
purpose of building schoolhouses. On the contrary, it seems
to us that the city authorities, upon whom the duty to have
constructed all public works and public buildings for the city
is imposed by the city charter, whi~ch contains numerous pro-
visions safeguarding and protecting the rights of the public in
all contracts for public works and buildings, are the proper public
agents for the expenditure of funds of this character.’
In the case of Poteet v. Bridges (supra) the city of West,
which had assumed control of the public free schools within its limits.
administering the same through a Board of School Trustees, had issued
bonds for the purpose of erecting a high school building. The bonds were
sold and the money placed in the City Treasury. The city authorities
contracted for a lot upon which to erect said building. Thereupon, the
Board of Trustees and certain taxpayers objected to the site selected for
such building, and brought this suit to enjoin the city authorities from
purchasing said lot and from erecting said building, alleging that the money
obtained from the sale of said bonds should be turned over to the Board of
Trustees of said independent school district, for the reason that they alone
Honorable T. M. Trimble, Page 7 (O-7252)
were authorized to select the site for such building, and to contract for
the erection. thereof. The trustees attempted to distinguish these facts
fr,om the prior case of Ham,ilton v. Bowers (supra) on the grounds that
the city of West had extended its boundaries for school purposes only,
which circumstances did not appear in the Bowers case.
In upholding the authority of the municipality, the court held
as follows:
“A city, by assuming control of the public schools
within its limits, does not thereby create a public school
distiict, separate from itself, but itself becomes a public
school district. It bec~oming such, it does not cease to be
a municipal corporation, but adds an additional corporate
function. This added function, in so far as it relate‘s to the
management and control of the schools, is exercised b ya,
board of school trustees. who are officers of the municipal
ity for that purpose, but the power to select sites for school
buildings and the erection of such buildings is, as appears
from . D a the decision in Bowers v. Hamilton, supra, vested
in the mumcipal author~ities. (Emphasis ours) ~ . ~
8,
. . . When the lines of a city or town are extended
in the manner provided by law, the territory included in such
extension. for the purpose for which such extension was made,
is thereby included within such corporate limits, and for such
purpose becomes a part thereof. Such town or city still re-
mains in control of its public schools ‘within its limits,’ and
such added territory is, for school purposes, within its limits.
0 D0
“The title to school property is vested in the boards
of school trustees, as is also the use and control of school
buildings after they are erected, (Art 2=, R.C.S. 1925),
tthev
bu for such ouroose monev bv
either taxation or the sale of bonds. In othei words, the mu-
nicipality provides the schoolhouses and the funds, in addition
to those provided by the state, and the board of school trustees
run the schools. (Emphasis ours) D ~ D
“We hold that the municipal authorities of the city of
West, and not the board of school trustees of said city, have
the right to select the site for the proposed school building,
and to contract for the erection of sameaR D ~ ~
In the case of Temple? Independent School Distr,ict vs. Proctor
(supra) the other side of this question was presented. The City Commis-
sioners of Temple, acting under a provision of the city charter, passed an
order rescinding the action of the Board of School Trustees of the Temple
Independent School District (which had been assumed by the city) in regard
Honorable T. M. Trimble, Page 8 (O-7252)
to the appointment of Proctor as superintendent. The court held that in-
sofar “as the city charter relating to the control and management of the
public schools is concerned, its provisions should be tested by the provi-
sions of the general school laws (title 49 R.CS.) in force at the time,:”
such laws giving to the Board of School Trustees ‘“the exclusive power to
manage and govern said schools. D D ~ Insofar, therefore, as the provi-
sions of the Temple Charter undertook to give the city commissioners
veto power of the acts of the Board of Trustees in their government and
exclusive control of the public schools of the district it contravenes the
provision~of the Constitution, because it is contrary to the general law of
the state in force at the time, and is therefore void.”
Referring to the charter of the City of Vernon (as amended
October 16. 1945). Section 1 of Article VI thereof has the following pro-
vision:
lb 0 I * The City, in its capacity as an independent
school district, is authorized to issue negotiable bonds for
the erecti~on, equipment. repair and ,improvements of public
free school buildings, the acquisition of sites therefor, and
for other purposes for whic.h other independent school dis-
tricts are authorized by general law to issue bonds, and for
the purpose of refunding any such bonds. Said bonds shall
be authorized and issued in the manner prescribed by gen-
eral law for the issuance of bonds by other independent school
districts, except that the duties imposed by the general law
upon the Board of Trustees shall be performed by the City
Commission, the City Commission shall levy the taxes for
the payment of said bonds and the interest thereon, and said
bonds shall be signed by the Mayor and attested by the City
Secretary, D o O”
In accordance with the above-quoted statutory. judicial and
charter pr’ovisions. it is the opinion of this department that your fourth
question should be answered in the negative; that is, the School Trustees
do not have the right’ to buy property needed for school purposes with the
proceeds derived from the sale of school bonds, but that the authority for
such purchase, including the acquisition of sites, erection of buildings, or
the purchase of such buildings, is vested in the City Commission of Ver-
non. It will be noted, however, as set forth in the above cited cases, that
so soon as school property is purchased by the City Commission, title to
such property is vested in the Board of School Trustees who then have the
exclusive control and management of the public schools and the further
plower under Art. 2773 to sell such property subject to approval of the
State Board of Education.
your fifth question is necessarily answered, pursuant to the
above statement, by holding that “condemnation proceedings” or ““suits to
purchase propertyR must be instituted by the City Commission and not by
the Board of School Trustees.
Honorable T. M. Trimble, Page 9 (O-7252)
Your sixth question, like your fourth, falling within the pur-
view of Hamilton v, Bowers and Poteet v. Bridges (supra). is answered
by stating that the funds realized from the sale of the school bonds voted
by the city should be under the exclusive control of the City Commission
to be expended by them for the purpose for which such bonds wer’e voted,
and that the said City Commission has the sole authority to enter into
contracts for the above purpose. and not the Board of School Trustees.
We believe the above statements fully answer the questions
you have presented.
Very truly yours
ATTORNEY GENERAL OF TEXAS
By /s/W. N. Blanton, Jr.
W. N. Blanton, Jr.
Assistant
WNB/JMc/cm
APPROVED JUL 5, 1946
/s/ CARLOS ASHLEY
FIRST ASSISTANT
ATTORNEY GENERAL
APPROVED
Opinion Committee
By /s/ BWB
Charrman