- ,




      Hon. Ralph Logan        Opinion No. O-4198
      County Attorney         Re: Authority of the Board of Trus-
      Tom Green County        tees of an Independent School District
      San ,Angelo, Texas      to create by resolution    a Junior Col-
                              lege District   with boundaries cotermi-
                              nous with those of the Independent
      Dear Sir:               School District   and related questions.
                We are in receipt  of your letter of October 31,
      1941, requesting our opinion on certain questions arising
      our of the facts hereinafter  stated.
                  The facts are that in the year ~1928 the City of
      San Angelo, which then had control of its public schools
      built a Junior College and put the same In operation that
      year.    Such Junior College,   known as the San Angelo Junior
      College,   has from that time on been operated and conducted
      continuously    and during all such times has been recognized
      as a standard Junior College by the State Department of Ed-
      ucation,   and during all such.times there has been no change
      in the status of said Junior College except that on March
      24, 1936,:the    qualified electors  of~the City.of San Angelo
      duly voted to separate the public schools of the City of
      San Angelo from municipal control~and after such date such
      Junior College was operated by the San Angelo Independent
      School District    which was created as'a result of such elec-
      tion.
                  Question   No. 1 reads as follows:
                 "Does the Board of Trustees of the San Angelo
           Independent School District   have authority to cre-
           ate by resolution  a Junlor'College   District  with
           boundaries the same as the boundaries of the San
           hngelo Independent School District    which will be a
           legal entity separate and apart from the San Angelo
           Independent.School  District   but under the control
           of the Board of Education of said San Angelo,Inde-
           pendent School Distrlct?'~
                The authority for the establishment   of Junior College
      Districts by an Independent School District   or city which has
      assumed control of its schools is found in Chapter 290, Acts
                                                                     .   .   1




Hon. Balph Logan,     page 2


of the Forty-first     Legislature,  Regular Session, and carried
forward as ,k,ticle    2815h of Vernon’s Annotated Civil Statutes.
Section 2 thereof     reads as follows:
            When it is proposed to establish       a Junior
     College District     as above provided, a petition
     praying for an election     therefor,   signed by not
     less than five per cent of the qualified         taxpay-
     ing voters of the proposed territory        shall be
     presented to the Board of Education of the dis-~
     trict    or city.  It shall thereupon become the
     duty of the Board so petitioned       to pass upon the
     legality    of the petition  and the genuineness of
     the same. It shall then be the duty of the
     Board to forward the petition       to the State Board
     of Education.”
             Section 3 provides that following      the approval by the
State Board of &3ucation as contemplated by Section 2, the
Board of Education of the Independent School District          should
then enter an order for an election         to be held in the proposed
territory    within a time not lass than twenty days and not more
than thirty days altar such &r           is iced    to determine vhe-
ther or not such Junior Co.l4r         PLltrlct  shall be created.   Such
order shall contain a deacrfptlon        of the metes and bounds of such
Junior College District       to be formed, and shall fix the date for
si;ch election.     If a majority or‘ the votes cast by, the qualified
property taxpaying voters of such district         shall be in favor of
the creation     of a Junior College District     the same shall be
deemed to be formed and created,        and said Board of Education
shall within ten days make a canvass of the returns and declare
the results     of the election,   and such results shall be entered
upon the Minutes of the Board of Education of the Independent
School District.
           Section 4 provides that the Board of Education of such
Independent School District   shall be the govern;tng body of such
Junior College District.
           Section 5 provides that the Board of T!ruste6S of Junior
College Districts  shall be governed in the establishment,  manage-
ment and control by the general law governing the establishment,
management and control of Independent School I&strict s insofar as
the general law is applicable.
           Section    1.6 reads in part as follsua:
           nAny public Junior College now organized and
      conducted in the State of Texas which had been
      Hon. Ralph Logan, page 3
t.




            actually  in operation prior to January 1, 1929
            or which is recognized    as a standard Junior CoI-
            lege by the State Department of Education,    is
            hereby validated    end may, by action of its Board
            of Trustees,   choose to be governed by the provi-
            sions of this Act, and receive the privileges    of
            $$;*;ame at any time that it may desire to do so.

                    It will be observed that prior to the enactment of
      Chapter 290 by the Forty-first          Legislature,    Regular Session,
      there was no law authorizing          the creation   of Junior Colleges
      and the Legislature        apparently intended by the adoption of
      Section 16 to confirm the action of Independent School Dis-
      tricts    and cities     inn having undertaken to establish      and oper-
      ate Junior Colleges without express authority of law.               Section
      16 certainly,      in pert, is a validating       provision   and to that
      extent such measure is ,necessaril~y restospective            and should be
      so construed.       We think that the law is well settled         on this
      point.      A validating     act isone   enacted for the purpose of con-
      firming rights arising out of past transactions.               In other
      words, the object of'such an Act is to give effect              to the in-
      tention of parties to enable them to carry into effect              that
      which they have designed and.attempted but which failed              of its
      expected legal consequences only by reason of some statutor
      disability.       See Runt County vs. Rains County, 7 S.W.(2d) 6C8.
                   ,A.Junior College Districts authorized by this Act,
      supra, is required, to be created in the, manner prescribed,
      but as to those certain Junior Colleges which existed prior
      to its enactment, the law through the adoption of Section
      16, in effect,,    empowered the Boards .of Trustees of such
      Junior Colleges to create a Junior College District        by sim-
      ple resolution.      The language used however merely provides
      that following     the adoption of such resolution   a Junior
      College could thereafter      enjoy the privileges  conferred on
      other Junior College Districts      formed pursuant to the Act.
      We think the ultimate effect of Section.1~6 is to create a
      Junior College District      but in the instant matter it will
      be seen that the Board of Trustees as it existed did not
      avail itself
                 . - of _the authority conferred by Section 16.      On the
      contrary Dy legal procedure the entity was changed in 1936, and
      in our opinion such change has precluded the Board of Zduca-
      tion of the new entity,      the Independent School District,    from
      obtaining the benefits      accorded by Section 16 to the. prior
      Board, namely, the governing body as it existed while the San
      Angelo Schools were under the control of the city.
                In our opinion the proposed Junior College District
C.i   must be established  in the manner provided by Sections 1, 2,
,-.    Hon. Ralph Logan, page 4
f '.

       3 and 5 of Chapter 290 of the Acts of the Forty-first          Legis-
       lature, Regular Session, carried forward as Article          2815h of
       Vernon's Annotated Civil Statutes.
                 Having concluded that the Junior College Mstrlct
       cannot be created by resolution   of the Board of Trustees
       of the Independent School District,   it renders an answer to
       Questions Numbers 2 and 3 unnecessary*
                  Your fourth   question   reads as follows:
            "Does the Board of Trustees of the San Angelo
            Independent School District    have authority to
            order an election   upon proper petitions   and
            submit to the qualified   voters of said district
            three propositions,   namely:
            "1.    Shall the San Angelo Junior College District
            be created with boundaries coextensive    with the
            boundaries of the San Angelo Independent School
            District?
            "2.    Shall a tax not in excess of the statutory
            limit'be    levied by such district for Junior Col-
            lege purposes?
            “3.  Shall such Junior College District issue
            its bonds in the aggregate sum of $200 000 for
            the purposes set forth in Section 7, oh Article
            281611, R.S. 1925 (as amended)?"
                    Section 5 of Article   2815h of Vernon's Annotated Civil
       Statutes confers upon the Board of Trustees of the San Angelo
       Independent School District      the dual capacity of governing body
       of the Independent School District       and the Junior College Dis-
       trict when same is created,      but until it is legally   establ;;::
       such a district,     of course, can have no governing board.
       can be no governing board de facto or de jure in a non-existent
       offict.     In other words, where there is no office     there can be
       no officer.      See Gray, et al. Vs. Ingleside   Independent School
       Mstrict,     et al., 220 S.W. 350.    Also Texas Jurisprudence,       Vol.
       34, Sections 161 and 162.
                    In our opinion the Board of Trustees of the San Angelo
       Independent School District      has no authority to order en elec-
       tion for any purpose with reference       to the Junior College Dis-
       trict  except for the.creation     thereof as is provided by Section
       2 of Article    281511 of Vernon's Annotated Civil Statutes,    and as
       is illustrated    by proposition   number one in your fourth question.
(t;
                            . ,..
.   _




        Hon. Ralph Logan, page 5


                    Following the legal establishment   of the Junior Col-
        lege District    and the assumption of the duties as governing
        body of such district    the Board may then exercise the powers
        conferred by law.
                  It is our opinion that the last two stated proposl-
        tions may be submitted to the voters only after the Junior
        College District  has been created and the governing body there-
        of has assumed.its duties.
                    Accordingly,    this   question    must be answered in the
        negative.

        APPROVED NOV 19, 19bl                         Very truly   yours
        /s/ Grover Sellers
        FIRST ASSISTANT                               ATTORNEY
                                                             GENERALOF TEXAS
        ATTORNEY GENERAL
                                                      By /s/ Clarence E. Crow.e
        APPROVED:OPIEION COMMITTEE                    Clarence E. Crowe,
        BY:     BWB, CHAIRMAN                                        Assistant

        CIX-s:wb
