Honorable J. C. McEvoy
County Attorney
Wailer County
Hempstead, Texas
Dear Sir: Opinion No. O-4247
Re: Consolidation of school dis-
tricts and payment of attor-
ney’s fee for contest of con-
solidation election.
We have received your letter of recent date in which you prey
sent the ~follo~ing information:
On May 10. 1941. an election was held to determine whether
Macedonia Common School District No. One of Wailer County should
consolidate for school purposes with Waller Consolidated Independent
School District. The Commissioners’ Court of Wailer County on May 12,
1941, canvassed the results of the .electiou, declared that the election re-
sulted in favor of the consolidation, and declared the districts consolidated.
On May 19, 1941, the three individual trustees of the Macedonia
district, individually and as district trustees, filed their notice of intention
to contest the election. The case ultimately went to trial, resulting in a
judgment finding that the election resulted in a tie vote in the Macedonia
district and, declaring that the order of the Commissioners’ Court did not
effect a consolidation. .During these proceedings the contestants were
represented by an attorney at law, and in payment of his fee, a warrant
for $250.00 was issued against the funds of the Macedonia district at the
instances of the trustee in their official capacity. Such warrant has been
presented to the County Superintendent of Wailer County for approval.
In connection with the facts outlined above, you ask the following
question:
“(1) Is the above described warrant in the amount of $250.~00,
and issued for the purpose of paying attorney’s .fe.es for contesting
a school consolidation election, a ‘legally draw.n voucher’ requiring
her to approve the same ?”
Honorable J. C. McEvoy, Page 2, o-4247
As we do not have a copy of the warrant we interpret your
question to be, “May the trustees of the common school district pay
with school funds the attorney’s fees under the facts as outlined 1”
In your brief you cite the case of Tate et al V. Farmer,
Co. Atty., et al.. 112 S. W. (2d) 782. We think that this case is very
helpful in answering the above quoted questian. The suit was insti-
tuted by Tate and Riggins, as trustees, and by two other individuals,
as taxpaying voters, to contest “that election and the action of the
court in consolidating the two districts in decreeing the consolida-
tion. * In holding that the trustees were authorized to institute the
suit the court made the following statement:
“Since, by article 2748 of our Statutes, the trustees
of a common school district are made a body politic and
corpor~ate, with power to sue and be sued, the two trustees
who constituted a majority of the board had authority to in-
stitute the suit, even though it should be said that others who
joined with them as taxpayers and citizens did not have the
right to contest the election for lack of justiciable interest
therein, separate from the interes.t of the public; nor was
the~re any plea of misjoinder of them in the contest.*
The case of Arrington et al v. Jones et al, 191 S. W. 361, ~dis-
cussed the authority of school district trustees to hire an attorney to
bring an action to cancel a teaching contract. After holding that the
trustees had such authority, the court made the following statement:
“Since the trustees have, as we think, the power to
employ an attorney to represent them in legal proceedings
respecting school affairs, the authority would exist to pay
such attorney reasonable compensation out of the special
maintenance school fund in’the management and control of
the trustees. Article 277.2, Vernon’s Sayles Statutes (Article
2827, R. C..S., 1925)” See also Stewart v. Newton Ind. Sch.
Dist., 134 S. W. (2d) 429.
Under the Tate case the trustees in question were authorized
to contest the election, and thus to employ an attorney. Under the
Arrington case they are authorized to pay him for his services.
Homrable J. C. McEvoy, Page 3, O-4247
Therefore, it is our opinion that the trustees were authorized to exe-
cute the warrant, and your first question is answered accordingly.
After the decision was rendered~ in the election contest case
but before judgment was entered, two petitions were presented to the
County Judge of Waller County, one signed by the qualified voters of
the Macedonia district and the other, by the qualified voters of the
Wailer district, requesting an election to determine whether the dis-
tricts should be consolidated for school purposes. Judgment in the
contest case was entered several days thereafter, and the conkstees
gave notice of appeal, which was subsequently abandoned.
Thereafter, on November 17, 1941, a petition addressed to
the County Board of School Trustees and signed by the requisite num-
ber of qualified voters of the Macedonia district was presented to the
County Superintendent who is Secretary of the County Board, request-
ing that an election be held in the Macedonia district and in the Magnolia
Common School District No. 6 of Montgomery County, which is adjacent
to the Macedonia district. A similar pet’ition was filed with the County
B,oard of School Trustees of Montgomery County, which board has ex-
pressed its willingnes~s to cooperate with the Wailer County Board in the
calling of an election. The County Judge of Wailer County has ordered
an election on the petition presented to him.
In connection with this fact situation you request the opinion of
this department on the following questions:
“(2) Is the Wailer County Board of School Trustees de-
prived of jurisdiction to act upon the petition presented to it by
reason of the prior filing of the other petitions with the County
Judge of Wailer County, Texas ?
“(3) If said Wailer County Board of School Trustees has
jurisdiction to act upon the petition presented to it, then which
election - the Wailer-Macedonia consolidation election, or the
Magnolia-Macedonia consolidation election - would control in
the event both elections resulted in favor of consolidation?”
We are informed that the Wailer Consolidated Independent School
District is a county line district. At the outset, therefore, it becomes neces-
sary for us to determine whether there exists authority for the consolidation
of a county line i.ndependent school di.strict with a contiguous common school
Ho*orable J. ‘C. McEvoy, Page 4, O-4247
district. The Macedonia district lies wholly within Wailer County, and
the Waller district lies partly in Waller and partly in Harris County.
However, Waller County has jurisdiction over the administration of the
Wailer district. If it is determined that the districts may be consoli-
dated, then the question is presented whether the consent of the officials
of both Harris and Wailer Counties is necessary before an election can
legally be ordered.
Article 2806, Vernon’s Annotated Civil Statutes, reads as follows:
“On the petition of twenty (20) or a majority of the legally
qualified voters of each of several contiguous common school dis-
tricts, or contiguous independent school districts, praying for the
consolidation of such districts for school purposes, the County
Judge shall issue an order for anelection to be held on the same
day in each such district. The County Judge shall give notice of
the date of such elections by publication of the order in some news-
paper published in the county for twenty (20) days prior to the date
on which such elections are ordered, or by posting a notice of such
elections in each of the districts, or by both such publication and
posted notice. The Commissioners’ Court shall at its next meeting
canvass the returns of such elections, and if the votes cast in each
and all districts show a majority in each district voting separately
in favor of such consolidation, the Court shall declare the school
districts consolidated,
“Common school districts may in like manner be consolidated
with contiguous independent,school districts, and the district so cre-
ated shall be known by the name of the independent school district in-
cluded therein, and the management of the new district shall be under
the existing board of trustees of the’ independent school district, and
all the rights and privileges granted to independent districts by the
laws of this State shall be given to the consolidated independent dis-
trict created under the provisions of this law; provided, that when
two or Morse independent districts are consolidated, the County
Board of Trustees shall designate the name by which the said dis-
trict shall be known, and shall appoint a board of seven trustees
for the said consolidated district, to serve until the next regular
election of trustees, as prescribed by General Law, at which time
Honorable J. C. McEvoy, Page 5, O-4247
the district shall elect a board of seven trustees, whose powers.
duties and terms of office shall be in accordance with the provi-
sions of the General Law governing independent districts, as they
now exist or may hereafter be enacted; provided further, that
when it is proposed to consolidate contiguous county line districts,
the petitions and election orders prescribed in this Act shall be
addressed to and issued by the County Judge of the County having
jurisdiction over the principal school of each district and the re-
sults of the election shall be canvassed by the Commi.ssioners’
Court of the said county.
‘The term ‘district’ as used in this and the succeeding nine
articles means ‘consolidated common school districts’ or ‘consol-
idated independent school district.“’
In the case of Stephen v. Coffee, 133 S, W. (2) 184, the following
fact situation was before the court. The county judge of Shackelford
County had ordered an election to determine whether the Ibex Independent
School District should consolidate with the Albany Independent School Dis-
trict. The Albany district lay entirely within Shackelford County, and the
Ibex District was a county line district, located partly in Shackelford
County and par,tly ln Stephens County; The administrative control of the
Ibex district was assumed’by Shackelford County. The result of the elec-
tion, as declared, was a tie in the Ibex district; thereupon the appellants
instituted this suit, a statutory contest of the election, claiming that if cer-
tain alleged illegal votes were excluded, the election would result in a ma-
jority vote in favo,r of the consolidation. No consent had been asked or ob-
tained by the County Judge of Shackelford County, or anyone else, from the
officers of Stephens County.
Because of the similarity of facts involved in the Stephens case
with those under conside~ration, we quote at length from the opinion of the
court, speaking through Justice Funderburk, as follows:
“We are of the opinion, however, that it was not shown that the
election was void on the ground presented by the plea to the jurisdiction.
The authority undoubtedly exists for the consolidation of two contiguous
independent school districts. R. S. 1925, Art. 2806, Vernon’s Ann. Civ.
St., art. 2806. Is such authority affected by the fact that one o,f the dis-
tricts has territory lying in a different county? We think no good authority
Honorable J. C. McEvoy, Page 6, O-4247
can be found to support that proposition. Shackelford County School
authorities assumed, and had for a long time exercised control and
jurisdiction over the Ibex Independent School District, and that, if ma-
terial, is as much as need appear. Jurisdiction in fact and right of
administration, will be presumed.
*Said Art. 2806 in authorizing consolidations of school dis-
tricts expressly names ‘contiguous independent school districts.’
A proviso in the article is ‘that when it is proposed to consolidate
contiguous county line districts the petitions and election orders
prescribed in this Act shall be addressed to and issued by the County’
Judge of the County having jurisdiction and the results of the election
shall be canvassed by the Commissioners’ Court of the said county.’
The proposed consolidation out of which this contest arises did not in-
volve a proposition ‘to consolidate contiguous county line districts’
as to which the law. as quoted above, provides that the ‘petitions and
election orders . . .~ shall be addressed to and issue.d by the County
Judge of the County having jurisdiction over the principal school of
each district’ etc. That proviso by its terms relates to the consolida-
tion of county line districts with county line districts. But even if said
proviso applied, it is nevertheless true that the County Judge who or-
dered $he two elections involved in the proposed consolidation was ‘the
County Judge of the county having jurisdiction over the principal school
of each district;’ since the Ibex Independent School District had but one
school, and that located in Shackelford County, the same as the principal
school of the other district. The Commissioners’ Court which declared
the result of the elections so ordered and held was the Commissioners’
Court of the same county.
“Revised Statutes, 1925, art. 2744, and the provision therein
reading: “Such distri.ct shall not be changed or abolished except by the
consent of the commissioners” court of each county having territory
contained therein’ does not affect the question. For one reason, that
statute by its terms applies only to ‘common county line school dis-
tricts.’ No such district is here involve,d. Another reason is that
said provision of Art. 2744 was enacted in 1911, while even as late
as the 1925 Revision of the statutes, Art. 2806 did not include authority,
as it was subsequently amended to do, for the consolidati.on of two inde-
pendent school districts. Such subsequent amendment must be given ef-
fect even if to do so requires us to hold that it repealed said provision
of Art. 2744, as applied to the situation here presented.*
Honorable 5. C. McEvoy, Page 7, O-4247
Thus, in the situation under consideration, authority exists
for the consolidation of a common school district with a contiguous in-
dependent school district. Art. 2806, supra. Therefore, under the hold-
ing of Justice Funderburk, such authority is not affected by the fact that
one of the districts has territory lying in a different county and the county
judge to whom the petitions were presented and who ordered the elections
was the county judge of the county having jurisdiction over the county line
district and within which the other district completely lies. The consent
of the officials of the other county, under the holding, was not required.
This view is strengthened by the recent case of Hunt v. Trimble,
145 S. W. (2d) 659 (W. E. Ref.). In this case plaintiffs sued, to enjoin the
County Judge, County Attorney and County Commissioners of Wheeler
County from entering any orders consolidating a common county line
school district with an independent school district and to declare void two
elections held in connection with the purported consolidation, one upon
the issue of consolidation and the other upon the assumption of/bonded
indebtedness.
The independent school district lay wholly within Wheeler
County, and that county had jurisdiction over the county line district
for administrative purposes. The petitions were ,presented to the County
Judge of Wheeler County, and he issued orders calling for the elections.
No action was taken by the County Judge, Commissioners’ Court, or County
Board of Gray County. the adjacent county, nor was their consent to the
consolidation obtained. In speaking of Article 2806, the court makes the
following statement:
* * * + In this Act the consent of no one is required, not
even the consent of the county judge issuing the election orders
nor the commissioners’ court or any other officials of his ‘or
any other county. The natural import of this provision is that
the only consent necessary to the consolidation is that of the
voters expressed in an election called for such purpose. The
will of the voters being the paramount concern of the Legisla-
ture the manner of obtaining such expression is of little import-
ance. 8 * 4;”
This case held that the consent of the county officials of the other
county was not necessary. We realize that the county line district involved
in the Hunt case was a common school district so that Article 2742b. Sec-
tion 5, V. A. C. S., as well as Article 2806, supra, applied. Even so, reading
Honorable J. C. McEvoy, Page 8, O-4247
the Hunt and the Stephens case together, we are of the opinion that a
county line independent school district may be consolidated with a con-
tiguous common school district. Where the~county judge of the county
having jurisdiction over both such districts upon proper petitions there-
for orders an election to determine whether the schools shall consolidate
for school purposes, the consent of the officials of the adjacent county, in
which part of the county line district lies, is not requked; and if the votes
cast at such election show a majority in each district voting separately
in favor of such consotidation, then the school districts may legally be
declared consolidated without such consent.
Our view is further strengthened by Article 7806b, Vernon’s
Annotated Civil Statutes, passed in 1937 by the 45th Legklature. Sec-
tion 1 of Article 2806b reads as follows:
“Section 1. That all county line independent school dis-
tricts in this State heretofore attempted to be organized and es-
tablished, and now functioning as such, and recognized by either
State or county authorities as such school districts, and which
were attempted to be organized and established by a vote of the
people at an election held in each district affected for the pur-
~. f pose of consolidating an existing county line independent school
districtwith an existing contiguous common school district, and
at which election there was an affirmative vote in each school
distri.ct in favor of such consolidation, are hereby validated in
all respects, as though such district or districts had been duly
and legally established in the first instance, notwithstanding the
fact that such election on the question of consolidation so held in
such existing independent school district or districts may have
been ordered, notices thereof given, and the results thereof de-
clared by a Board of Trustees of such existing county line inde-
pendent school district or districts instead of by the Commission-
ers* Court as provided by Article 2806 of the Revised Civil Stat-
utes of Texas, of 1925.” (Emphasis supplied)
The language used in this section indicates that such consolida-
tion elections should follow the provisions of Article 2806, and that there
was no authority to organize districts by an election ordered by the county
board. The districts falling within the latter named class were validated
b$~ the statute.
Honorable J. C. McEvoy, Page~9, O-4247
We are not unmindful that apparently inconsistent views have
been taken by some of our appellate courts, sol that the position we
have taken is not entirely free from doubt. See Newsome v. Elliott,
139 S. W. (2d) 221; Benton v. Long, 128 S. W. (2d) 446; County School
Trustees of Runne1.s County v. State, 95 S. W. (2d) 1001. However,
the Hunt case i.s the most recent one on the subject; the Hu.nt case
cites with approval the Stephens case, and the Supreme Court of Texas
refused a writ of error i.n the Hunt case. These factors impel us to
the conclusion which we have reached and which is expressed abdve.
The next question which confronts us is whether the filing of
the petition with the county judge after the decision was rendered but
before the entry of the judgment and abandonment of the appeal was in
reality a nullity because of the fact that the district court still retained
jurisdiction over the subject matter, and, as a nullity, could not be sub-
sequently revived. It has been held by this department that no particu-
lar time must elapse or intervene between the filing of petitions to.con-
solidate school districts. Opinion No. O-2266. Did the jurisdiction of
the district court in the election contest proceedings attach to more
than the particular election in contest? Did such jurisdiction attach
to the filing of other petitions or the holding of subsequent elections 7
We think not.. True, all the matters relating to the contested election
itself were within the jurisdiction of the court, but wholly independent
matters could not be said to be covered by such jurisdictbon. There-
fore, we are of the opinion that petitions could validly be presented to
the county judge so that his jurisdiction to order consolidation elections
would be invoked, and in this particular case to empower the county
judge upon the filing with him of a proper peti.tion to order an election
if the contested el.ection were not upheld.
The next question that we must answer is whether .the petitions
presented to the county judge must affirmatively show the location of
the districts, that they are contiguous, whether one is a county line dis-
trict, and if county line, what county has jurisdiction over its administra-
tion. You willnotice that the only express requirement in either Article
2806 or in Section 5b of Art. 2742b is that the county judge shall. issue an or-
der for an election “on, the petition of twenty (20) or a majority ofthe legally
qualified voters. . . .” Of course, if the school district is in another
county, the county judge would have no power to callan election in
such other county. Yet, if the district is in fact in the county or partially
Honorable J. C. McEvoy, Page l,O, O-4247
in the county having jurisdiction over its admi.nistration, would the
fact that the petition does not affirmatively show the same deprive
the county judge of his authority to order or the voters of their right
to have a consolidation election? We think not. Chief Justice Gaines
speaking for the Supreme Court of Texas in the case of Scarborough
et al v. Eubank, 93 Tex. 106, made the following statement:
y * + * The object of a popular election is that the will
of the greater number of the voters may prevail. This greater
number may be a plurality or a majority in a greater or less de-
gree, as the law may provide for the particular case. Hence the
important matter in every election is that the will of the voters
should be fairly expressed, correctly declared, and legally en-
forced. Compared to this, the question as to the manner and time
of orderi.ng the election is of trivial m0men.t. Ordinarily, when
elections are to be held which recur at stated periods (such as
those for the electton of officers to administer the government),
it is made the duty of certain officials to call the election without
action on part of any person. But in all elections of a local option
character (such as for prohibiting the sale of intoxicating liquors,
to prevent the running at large of livestock, the removal of county
seats, and the incorporation of totins and cities) it is essential,
in order to gtve effect to the laws which provide for such elections,
that some officer, board, or tribunal should be empowered to order
the election, and that it should be mad~e a duty so to order it upon
the occurrence of certain conditions, -- usually the presentation
of a petition, signed by a certain number of legal voters, freeholders,
or taxpayers, according to the nature of the matter upon which the
vote is to be taken * * * The main, if not sole, purpose of requiring
the petition in favor of a change before ordering an election is to
save the public from the expense, loss of time, and excitement in-
cident to such an’election, unless there is a reasonable probability
that the required majority of electors will vote for the change.”
In the situation under consideration, if the petitions were signed by
the requisite number of qualified voters, then we are of the opinion that the
county judge would be authorized to call the election.. We do not feel justi-
fied to read something into the statute which is not there, especially in view
of the following facts: the Macedonia district is wholly within Walkr County;
Walter County has jurisdiction over the administration of the Wailer district;
Honorable J; C. McEvoy, Page ~11, O-4247
the petitions we;e signed by the required number of legally quali-
fied voters; and the voters in each district will be notified by publica-
tion or by posting notice of the election, and will be able to express
their will at the election.
You ask whether the respective county boards of school trus-
tees are prevented from acting on the petitions presented to them by
reason of the prior filing of the other petitions with the county judge.
We quote from our Opinion No. O-778 as follows:
“Our Supreme Court in State, ex rel George vs. Baker,
40 S. W. (2d) 41, held:
“‘To our minds, this suit presents but one question: Did
the County Board of Trustees have the power to defeat the right
of the people to, by vote, determine the question as to whether
the district should be incorporated by re-districting the territory
involved after the election has been duly and legally ordered and
advertised, and while such election was still pending? We think
that to state the question is to give a negative answer thereto.
“‘It is our opinion, that even if it be conceded that the orders
of the County Board with reference to the territory of Distric,t #16
would have been in all respects legal in the absence of the pending
election, still the right of the people to vote on incorporation, having
been first lawfully invoked, would not be interfered with or defeated
by the County Board pending the holding of the election, and the
declaration of its results.’
“We recognize that the foreg,oing case is not specifi,cally in
point, but the situations are somewhat analogous. When an elec-
tion has been called and the right of the people to vote upon the
question of whether two districts shall consolidate, has attached,
their right to freely express their will should, not be interfered
with or embarrassed by calling a second election to determine
whether one of these districts should consolidate with a third.
We find no authority in the statutes for holding both elections at
the same time as suggested in your letter.”
You are, therefore, advised that the county board of school trus-
tees should not call an election based on the Macedonia-Magnolia petition
Ho*orable J. C. McEvoy, Page 12, o-4247
.f
until the electorate of the Wailer and Macedonia districts ,have had
an opportunity to vote upon the question whether the Weller and Mace-
donia districts shall consolidate. If the Wailer-Macedonia election
carries and the districts are consolidated, then the county boards
would have no authority to call an election based on the Macedonia-Mag-
nolia petitions.
Very truly yours
ATT0 EY GENERAL OF TEXAS
77
FIRST ASSISTANT
ATTORNEY GENERAL
GWS:ej .vVED