                           February 25, 1972


Honorable Howard Traweek       Opinion No. M- 1078
County Attorney
Motley County Courthouse       Re:   Whether a proposed election
Matador, Texas 79244                 for consolidation of school
                                     districts would be in viola-
                                     tion of Sec. 19.234, subd.
Dear Mr. Traweek:                     (b), Texas Education Code.

          In your recent letter you set out the following
factual situation:

          "An election was held on July 10, 1971,
     to determine whether the Turkey Independent
     School District, the Quitaque Independent
     School District, and the Flomot Independent
     School District should be consolidated.   The
     proposal for consolidation carried by a ma-
     jority vote in the Turkey Independent School
     District and in the Quitaque Independent
     School District, but was defeated in the
     Flomot Independent School District.

           "Subsequently, on September 4, 1971,
     another election was held in the Turkey Inde-
     pendent School District and the Quitaque Inde-
     pendent School District on a proposal for con-
     solidation of these two districts and the
     proposal carried by a majority of the votes
     cast in each of said districts.   Since the
     date of this election the Turkey Independent
     School District and the Quitaque Independent
     School District have been consolidated into
     the present Turkey and Quitaque Consolidated
     Independent School District.



                               -5278-
Mr. Howard Traweek, page 2,      (M-1078)



          "On December 6, 1971, petitions were filed
     with the County Judges of Hall, Briscoe, Motley
     and Floyd Counties asking that an election be
     called to vote on the proposal to consolidate
     the Flomot Independent School District and the
     Turkey and Quitaque Consolidated Independent
     School District.  These petitions present the
     question as to whether the requested election
     would be in violation of that portion of Section
     19.234 (b) Texas Education Code which is quoted
     above."

          You have requested the opinion of this department
on the applicability to this situation of Section 19.234 (b)
of the Texas Education Code. That section reads in part as
follows:

          I,. . . If less than a majority of the
     votes cast in any one of the districts is in
     favor of the consolidation, then another elec-
     tion involving the same consolidation proposal
     may not be held until at least one year has
     elapsed since the date of the election."

          We are of the opinion that an election may not
lawfully be held in response to the petitions filed on
December 6th.

          We think the language of Section 19.234 (b) is
clear, viz.: Voters who oppose a proposed consolidation,
and prevail at an election, may not have the same consoli-
dation proposal imposed upon them for at least one year.

          While in form the proposition contemplated by the
petitions filed December 6, 1971, would differ from that
defeated on July 10, 19'71, nevertheless, if consolidation
were approved at an election called in response to the peti-
tion of December 6th, the result would be the same as if
the proposition had carried in all districts on July 10th.



                              -5279-
Mr. Howard Traweek, page 3,       (M-1078)



We have concluded that in substance the proposed consolidation
question is the same as was previously defeated. The land
involved and the people on that land would be the same.  The
Legislature clearly intended to uphold those who successfully
opposed such a proposed consolidation for at least one year.

          Attorney General's Opinion No. O-5958 (1944) was
concerned with Article 2815, Vernon's Civil Statutes, which
provided for dissolution of consolidated school districts.
The statute included the following language:

          "No election for the dissolution of said
     consolidated districts shall be held until three
     (3) years have elapsed after the date of the
     election at which such districts were consoli-
     dated."

          The opinion includes the following language:

           "However, the statute imposes a condition
     precedent to the calling of the election when
     it says '. . . if three (3) years have not
     elapsed after the date of the election at
     which such districts were consolidated.'   We
     believe that the passage of this three year
     period is a necessary condition which must
     exist before the voters can lawfully exercise
     the authority conferred by the statute."

          You have also inquired whether under the given
fact situation it is within the discretion of the county
judge to refuse to order the election requested in the
petitions filed December 6th. In view of the foregoing
discussion, we hold that the county judge has no authority
to order the election requested in the petition filed
December 6th.




                              -5280..
Mr. Howard Traweek, page 4,       (M-1078)



                      SUMMARY
                      -------

          Where three school districts vote on
     consolidation under Article 19.234 (b) of
     the Education Code, and the proposition fails
     in the third district, but the first two sub-
     sequently consolidate, an election may not
     lawfully be held within one year of the first
     election on the proposition of consolidating
     the third district with the consolidated dis-
     trict.

          When a proposal to consolidate school
     districts has been defeated at an election,
     a county judge is without authority to order
     another election to be held within one year
     of the first election on a proposal to consol-
     idate the same territory.




Prepared by James S. Swearingen
Assistant Attorney General

APPROVED:,
OPINION COMMITTEE

Kerns Taylor, Chairman
W. E. Allen, Co-Chairman

Ralph Rash
Robert Owen
Houghten Brownlee
Arthur Sandlin



                              -5281-
Mr. Howard Traweek, page 5,      (M-1078)



SAMUEL D. MCDANIEL
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOLA WHITE
First Assistant




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