June 1, 1939
HonorableF. E. Mitchell
County Attorney
CallahanCounty 'I
Raird,T&as
Dear sir: opinionHo. o-778
Be: Election8to consolidatedistricts
with anotherconsolidationelection
pending.
We are in receiptof your letter of May 27, 1939,in which you request
the opinionof this Departmentupon the questionbased upon the
~followlngfacts.
The CountyJudge of CallahanCounty upon proper petitionha8 orderedan
electionto determinewhether or not BairdRidependentSchoolDistrict
and Midway Comon School Districtshall be consolidated.Another ~
petitionis now being circulatedin Clyde IndependentSchoolDistrict
and in Midmy CommonSchool Districtfor ths purposeof callingan
electionto determinewhether the MidwayCommon SchoolDistrictend the
Clyde IndependentSchoolDistrictshall consolidate.
You wish to know whether the CountyJudge should order an electionto
determinewhether the Clyds and Midway Districtsshall consolidate
upon presentationof the proper petition,in view of the fact that he
has alreadyorderedthe electionfor the Raird-Midwayconsolidation.
Article2806,RevisedCivil Statutes,1925,.provides,in part, as follows:
"On the petitionof twenty (20) or a majorityof the legally
qualifiedvoters of each of severalcontiguouscommonschool
districts,or contiguousinaepandentschool districts,praying
for the consolidation of such districtsfor school pmposes,
the County Judge shall issue an order for an electionto be
held on the same day in each such district.. . . Comaion
school districts may iulike mannerbe consolidatedwith
contiguousindependentschool districts.. ."
Our SupremeCourt in State, ex rel Georgevs. Raker, 40 S,.W. (2d) 41, held:
"TO our minds, this suit presentsbut one question: Did the
County Board of Trusteeshave the Rower to defeat the right of
the people to by vote, determinethe questionas to whether
HonorableF. E. Mitchell,June 1, 1939,page#2 (o-778)
the districtshouldbe incorporated by re-districting the
territoryinvolvedafter the electionhas been duly and
legallyor&red and advertised,and while such election
was still pending? We think to state the questionis to
give a negativeanswer thereto.
"It is our opinion,that even if it be concededthat the orders
of the CountyBoard with referenceto the territoryof District
#16 would have been in all respectslegal in the absenceof
the pendingelection,still the right of the people to vote 01
incorporation, having been first lawfullyinvoked,would not
be interferedwith or defeatedby the CouutyBoard pending
the holdingof the election,and the declerationof its result8."
We recognizethat the foregoingcase i8 not specificallyin point,but the
8itW3tiOn8are somewhatanalogous. When an electionhas been calledand the
right of the people to vote upon the que8tioT.T
of whether two districtsshall
consolidate,has attached,their right to freelyexpresstheir will should
not be interferedwith or embarrassedby callinga second electionto
determinewhether one of these districtsshould,conaolidate with a third.
We find no authorityin the statutesfor holdingboth election6at the
sams time as suggestedin your letter.
This~Departmentis of the opinionthat the County Judge shouldnot call au
electionbased upon the Clyde-Midwaypetitionuntil the electorateof the
Baird IndependentSchoolDistrictand Midway CommonSchoolDistricthave
had au opportunityto vote upon the questionof whether the Baird end
Midway district8shell consolidate.
Yours very truly,
ATTOHWEY-0FTEJLA6
=‘/ Cecil C. Camneck
Bs
Cecil C. Camack
Assistant
CCC:go/.Ldw
APPROVED
S/wC.m
A- -0Fw
APPROVEDOPINIONCO-E
BY H. Q. B.
CHAIRMAN
Untitled Texas Attorney General Opinion
Combined Opinion