                    March 20, 1970


Dr. J. W. Edgar                  Opinion No. N- 599
Commlsslonerof Education
Texas Education Agency           Re:   Authority of Sunnyvale Town
201 East 11th Street                   Council to serve as the
Austin, Texas 78711                    Board of Trustees of the
                                       munlclpal Sunnyvale Indepen-
                                       dent School District and to
                                       forward to the district state
Dear Dr. Edgar:                        school funds while so serving.
         In your letter requesting an opinion from this office,
you submit the following facts:
         “In 1953, Sunnyvale IndependentSchool
    District was created a ntunlclpalschool dls-
    trlct pursuant to Article 2768, et seq., V.C.S.
    Town of Sunnyvale v. Dallas County Board of
    School Trustees, 283 S.W.2d 296. So far as we
    have been able to ascertain, It has had a school
    board of seven members; three or two members are
    elected annually for three year terms. The
    school board operated Its school system (8 grades)
    until August 18, 1969 when the Town Council of
    Sunnyvale assumed full operationalauthority and
    management of the Sunnyvale Independent School
    District under a Resolution adopted at a special
    meeting of the council. . . .
         "Our latest InformationIs that the Town
    Council has been meeting as a school board since
    last summer. According to the school principal,
    everything has been peaceful and the school Is
    operating smoothly.
         II
          . e .
          "This Agency la concerned as to the authority,
     If any, of the Sunnyvale Town Council to serve and



                        -285%
Dr. J. W. Edgar, page 2 (M-599)


     to continue to act, as It currently Is, In the
     capacity of a school board for the municipal
     Sunnyvale Independent School District.
     Personnel of this Agency have visited to&'a;-
     thorltles for their reaction with respect there-
     to. Locally nothing Is being done to change the
     situation; counsel for the town feeling that the
     town council has full authority as such to act as
     a school board, in lieu of the elected school
     board It purported by resolution to depose.
         "The time for election of school trustees
    Is fast approaching. If legally the town oouncll
    may not serve as a school board then perhaps the
    district should be Immediatelyapprlsed of the
    necessity for holding a trustee election to fill
    those offices which normally will expire In April,
    1970."
          Other considerationsdeemed pertinent to the proper
disposition of this matter are disclosed by a decision In the
case of Town of Sun vale v. Dallas County-Boardof School
Trustees, et al., 2   S.W.2d 296 (Tex.Clv.Apm3     , no writ),
wherein the Court stated at page 297 the following:
          I,
               eThe facts were not In dispute.
                   s   .

    Appellant Is a town duly Incorporatedunder
    Ch. II, Title 28, R.C.S. of Texas, Vernon's
    Ann.Clv.St.art. 1133, et seq.; Its Incorporation
    having been validated by Ch. 177, p. 492, Acts'
    53rd Leg., 1953, Vernon's Ann.Clv.St.art. 966c.
    The Town of Sunnyvale boundaries were thereafter
    duly extended, under authority of Art. 1139,
    R.C.S., by an annexation ordinance after petition
    of a majority of the InhabitantsIn the territory
    to be annexed. On Nov. 21, 1953, by a vote of
    47 to 5, Sunnyvale assumed and took exclusive
    control of the public free schools within Its
    limits under Art. 2768, R.C.S., and Sec. 10, Art.
    11, of the Texas Constitution,Vernon's Ann.St.
    effective Dec. 31, 1953. . . .'
          The Resolution enacted by the Town Council of Sunnyvale
on August 18, 1969, reads, In part:
          "NOW TREREFORE, BR IT RESOLVED BY THE
     TOWN COUNCIL OF TRR TOWN OF SURRYVALE:


                           -2856-
Dr. J. W. Edgar, page 3 (M-599)


         “1. That all authority In connection with
    the school system of the Town of Sunnyvale here-
    tofore delegated to the Board of School Trustees
    of Sunnyvale IndependentSchool District be and
    the same Is hereby rescinded and terminated,and
    the entire operation of the Schools within the
    corporate limits of the Town of Sunnyvale is
    hereby reposed and placed In the Town Council
    of the Town of Sunnyvale, and.such committees
    as It may designate to manage, control and
    operate such schools, effective lmmedlately;
         “2. That any and all actions heretofore
    undertaken by the Board of School Trustees of
    Sunnyvale Independent School District In connec-
    tion with the operation of a Ninth Qrade for the
    ensuing scholasticyear be and they are hereby
    vetoed) nullified, and voided;
         “3. That all presently existing contracts
    heretoforemade by the said School Board, save
    and except any obligationsundertaken In connec-
    tion with the operation of the Ninth Grade for
    the ensulng scholastic year, be and they are
    hereby adopted and validatedby the Town Council
    of the Town of Sunnyvale, which will be substituted
    therein for the said School Board;
          ‘4. That the Town Council, acting through
     the Chairman of Its School Committee and such other
     persons as may be designated, shall Immediately
     take charge of all physical properties and other
     assets pertaining to the school system, and pro-
     ceed to operate the Schools up to and Including
     the Eighth Qrade for the coming scholastic year;
          11    II
           . . .
            In view of all of the foregoing,you ask the following
question:
         “If no authority lies In the five member
    Sunnyvale Town Council to act or serve as the
    Board of Trustees of the municipal Sunnyvale
    IndependentSchool District, should this Agency
    continue to forward to the district state school
    funds while it 1s so operated?”


                         -2857-
    .




Dr. J. W. Edgar, page 4(M-599)


          H.B. 534, Acts 61st Leg., Regular Session, 1969, en-
acted the Texas Education Code. The Code became effective on
September 1, 1969, and now controls Sunnyvale IndependentSchool
District.
           Article 2768, Vernon's Civil Statutes,under which the
Sunnyvale IndependentSchool District was created, IS repealed
by Sec. lg.161 of the Texas Education Code on the same subject.
However, from a conslderatlon.ofthe general.lawsnow repealed
(Articles 2768, 2771, 2774(a), 2772, 2773(a), 2773, V.C.S.), we
must conclude that even prior to the enactment of the Texas Ed-
ucation Code the Town Council of Sunnyvale had no authority to
enact a resolution purporting to assume the operation and control
of the schools of the Sunnyvale Independent School District to
the exclusion of the elected Board of Trustees.
          Chapter 24 of the Texas Education Code Is entitled
"MunlclpalSchool Dlstrlcts' and Is comprised of Sections 24.01-
24.07. Section 24.01 repeals Article 2783c, Vernon's Civil
Statutes, on the same subject and provides as follows:
             "The term 'municipalschool district' Includes
        any Independentschool district existing under the
        authority of Article VII, Section 3, or Article XI,
        Section 10, of the Texas Constitution,which Is
        municipally assumed or controlled;regardless of
        whether the same'18 a city or town school district,
        where the boundaries of the dlstrlct and the city
        or town are cotermlnous,or whether It Is an ex-
        tended Independent school district, where the city
        or town has extended Its limits for school purposes
        only."
          Section 24.02 repeals Article 2761a, Vernon's Civil
Statutes, on the same subject and provides as follows:
             "Municipal school districts, regardless of
        the manner In which they came Into existence and
        regardless of whether or not the boundaries have
        been extended for school purposes only, are
        classlfled as Independent school districts.
        Once a municipal school district has been es-
        tablished, It shall continue to be an Independent
        school dlstFlct even though the city or town
        which assumed or accepted control of the school
        district abolishes Its corporate existence as
        a municipal corporation. Except as specifically


                           -2858-
.




Dr. J. W. Edgar, page 5 (M-599)


     provided otherwise In this chapter, municipal
     school districts shall be governed and shall
     function in compliancewith the general law
     relative to Independentschool dlstrtcts as
     provided In Chapter 23 of this code,
          Section 24.03 provides as follows:
          “A municipal school district shall be
     governed In the general admlnlstratlonof Its
     schools by a board of seven trustees, selected
     as provided In Section 24.04 of this code."
          Section 24.04 repeals Article 2774, Vernon's Civil
Statutes, on the same subject. The provision of this Section
applicable to the Sunnyvale IndependentSchool District reads
as follows:
          'The trustees of a municipal school dls-
     trlct are elected as provided in Chapter 23 of
     this code. . . ."
          Section 24.05 which repeals Article 2772, Vernon's
Civil Statutes, on the same subject provides as follows:
          "(a) The board of trustees of a municipal
     school district shall have the general powers
     and duties prescribed In this section.
          "(b) The board shall have the exclusive
     control and management of the schools of the
     district.
          '(c) Title to all houses, land, and other
     property owned, held, set apart, or In any way
     dedicated to the use and benefit of the public
     schools of the city or town, whether acquired
     before or after the establishmentof the municipal
     school district, shall be vested in the board of
     trustees and their successorsIn office, In trust
     for the use and benefit of the public schools In
     the city or town.
          "(d) The board shall constitute a body cor-
     porate and shall have full power to protect the
     title, possession,and use of all school property
     within the llmlts of the municipal school dlstrfct,


                         -2859-
.   .




Dr. J. W. Edgar, page 6(M-599)


        and may bring and maintain suits in lar or In
        equity In any court of competent jurlsdlctlon
        when necessary to recover the title or possession
        of any school property adversely held In the
        district.
             "(e) Except where specific provision Is made
        with regard to the conducting of the affairs of a
        munlcfpal school district, the board of trustees
        of a mwnlclpal school district may exercise any
        power speclflcallygranted~or reasonably implied
        to the board of trustees of an Independent school
        district."
          In view of the plain and unambiguous language of
Sections 24.01-25.05 of the Code, the Town of Sunnyvale presently
has no authority to take any action by resolution, ordinance or
by-law to usurp the responsibilityof the Board of~Trwstee8for
the exclusive control an3 management of the schools of the dls-
trlct.  Moreover In Thomas, et al. v. Abernathy County Line
I.S.D., etal., 290 S.W. 152 (Com.App. 1927) the Court stated
at page 133 the following:
             "In our opinion the offices of school
        trustee and alderman are Incompatible. . . .
        'If the same person could be a school trustee
        and a member of the city council or board of
        aldermen at the same time, school policies In
        many Important respects would be subject to
        direction of the council or aldermen Instead
        of that of the trustees."'
In accord, Attorney Qeneral Opinion No. O-1071 (1939). Con-
sequently,you are advised that the Sunnyvale Town Council Is
not authorized to act In the capaalty of a school board for the
Sunnyvale Independent School District.
          Chapter 16 of the Education Code contains the pro-
visions of the Foundation School Program. Sectloti16.01 repeals
Article 2922-11, Vernon's Civil Statutes, on the same subject and
reads as follows:
             "The purpose of the Foundation School
        Program Is to guarantee to each child of school
        age In Texas the avallabllltyof a MIniplumFoun-
        dation School Program for nine full months of the
        year and to establish the eliglbllltyrequirements
        for the public school districts of Texas as In
        connection therewith."

                          -2860-
.,   -




         Dr. J. W. Edgar, page 7 (M-599)


                   Section 16.02 repeals Article 2922-12, Section 1
         on the same subject and reads as follows:
                   "Appropriationsenacted by the leglsla-
              ture for the promotion of the educational
              opportunitiesafforded by this state under
              this Foundation School Program shall be paid
              In accordance with the requlreme~tsand In the
              manner provided In this chapter.
                   In relation to the admlnlstratlonof the Foundation
         School Program, Section 16.79 of the Code, which repeals Article
         2922-20, Vernon's Civil Statutes, on the same subject, provides
         In part, as follows:
                   "(a) It shall be the duty of the State
              Board of Education, State Board for Vocational
              Education, and the state commlsslonerof educa-
              tion to take such action, require such reports,
              and make such rules and renulatlons consistent
              with the terms of this chapter as may be necessary
              to carry out Its provlslons.
                   II    11
                     .   .   .


                   The provlslons_--
                                  of Article
                                        .    2922-20, Vernon's Civil
         Statutes, were not materially cnanged In the Article's codlflca-
         tlon of Section 16.79 of the Code.
         154 Tex. 632, 282 S.W.W 691 (1955),
         the following:
                   "The duties of the Commlsslonerof Educa-
              tion to certify the funds to which a school
              district Is entitled and of the State Comptroller
              to Issue and transmit warrants therefor are purely
              mlnlsterlal and mandatory. Article 2922-20, V.A.T.S.;
              Article 2663, R.C.S.; Austin IndependentSchool
              Dlst. V. Marrs. 121 Tex. 72, 41 S.W.2d 9. The
              Injunction against these parties was properly
              denied. To this all parties agree.
                   ,!
                    . . .I'
                    Consequently,under the authority In the holding of
         McKlnney V. Blankenshlp, su ra, it Is our opinion that the State
         Commissionerof Education+ oes not have the discretionunder
         the facts submitted to withhold Foundation School Program funds
         from the Sunnyvale Independent School District.

                                  -2861-
. . . -




Dr. J. W. Edgar, page 8 (M-599)


                         SUMMARY
           The Town of Sunnyvale has,no authority to
      take any action by resolution, ordlnence or by-~
      law to usurp the reaponslbllltyof the Board
      of’Trustees for the exclusive oontrsl and manage-
      ment of the schools of the dietriot. Conseq9kuatly,
      you are advised that the Sunnyvale Town Counc$~l
      Is not authorized to act In the oapaclty of a
      school board for the Sunnyvale IndependentSchool
      Dlskrlct.
               Under the authority In the holding of McKlnne
          v. Blankenshlp, suprs, It Is our opinion tha
                                                     7-d
          State Commlsslonerof Education does not have the
          discretionunder the facts submitted to withhold
          Foundation School F+rogr@mfbnds Wcm the Sunnyvale
          IndependentSchool District,




                                 Atto   ey B&era1 of Texas
Prepared by Ivan R. Wllllans, Jr.
Assistant Attorney Qetaeral
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Acting Co-Chairman
W. 0. Shultz
Ray WcQregor
John Reeves
Wardlow Lane
MKADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant


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