Hon. Jhlnia zimmernlann         Opinion HO. V-1193
County Attorney
Swisher County                  Re: Eligibility to vote in
Tulla, Texas ii                     elections to convert
                                    rural high school dis-
                                    trlcts into independent
Dear Sir:                           school districts.
          We refer to your request for an opinion of this
office concerning eligibility to,vote in an electton to
ccnvert a Pural high school district into an independent
school district. S .B. 316, Acts 52nd Leg., R S. 1951, ch.
42, p. 69, codified In Vernon’s Civil Statutes as Art.
2922&(5)l




            Article 29221(5), supra, provides in part as
follows:
         ‘Section 1. Upon a petition properly
    signed by twenty (20), or a majority, of the
    legally qualified property taxpaying voters
    residing in any rural high school district
    In which there is maintained a first-class
    high school of twelve (12) grades, offering
    sixteen (16) or more credits, the County
    Judge of said county shall issue an order
    calling for an election to be held not less
    than twenty (20) nor more than thirty (30)
    days from the date of filing of said peti-
    tion, for the purpose of converting the rural
    high school district into an independent
    school district for school purposes. After
    said election is held, the CammIssioners Court
    shall canvass the re,turnsthereof as in other
    similar elections, and if the majority of the
    votes cast favor the change from a rural high
    school district into an Independent school dis-
    trict, then said Con&ssioners Court shall en-
    ter its order'to that effect and Incorporating
    said independent school district. . . . There-
    upon, such ‘independentschool district’ shall
    thereafter be regarded as duly incorporatedfor
    free school purposes only and shall have and is
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         Hon. Dennis Zlmmermann,page 2   (V-1193)


             hereby vested with al.1the rights, powers and
             privileges conferred and imposed by the General
             Laws of this State upon independentschool dis-
             tricts.
                  ". . .

                  'Sec. 4. All bonds issued by and out-
             standing against any such rural high school
             district; as a school district, and all obli-
             gatlozs, contracts and indebtednessexisting
             against the rural high school district, shall
             become the obligationsand debts of the ln-
             dependent school district at the time of Its
             incorporation;and the said independentschool
             district, after same has been Incorporated,
             shall be held to have assumed the discharge
             of all such obligations,contracts and lndebt-
             edness, and the same shall be enforceableand
             collectiblefrom, paid off and dischargedby,
             the said Independent school dlstM.ct, as if
             or1ginallg created by it as an independent
             school district; and it shall not be neces-
             sary to call an election within tindfor such
             district for the purpose of assuming such
             bonds and other indebtedness. . . ." (Em-
             phasis added.)
                  In connectionwith that law, you ask these quea-
         tions:
              1. Is the election limited to only qualified
              property taxpaying voters?
             2. Who Is to pay for the expenses of holding
             the election?
                   It is observed that Article 2922&(5) provides
         that the petition invoking power In a county judge to call
         sucn an incor oration election must be "properly signed
         by twenty (20P or a majority,  of the legally qualified
         property taxpailng voters residing In any rural high school
         district" designated therein. But the law does not state
         the quallflcatlonof voters who may vote ln a called elec-
         tion. It simply states that "If the majority of votes
         cast favor the change . . . said ConrmlssionersCourt shall
         enter its order to that effect."
                   A similar situation is apparent in Article 2742j,
         V.C.S., as amended. That law proOides for the incorpora-
         tion of certain common school districts into independent
.   .




        Ecn. Dennis Zlmmermann, page 3   (V-1193)


        school districts. In an opinion of this office concern-
        ing qualified voters under Article 27423, It was held
        that all persons who are qualified voters and who are
        residents of a common school district as designated in
        that law, are entitled to vote In an election held un-
        der and for the purpose set out therein, citing Article
        2955 on the matter of qualification. Att'y Gen. Op.
        V-348 (1947). Under that holding, qualified voters were
        not restricted to qualified property taxpaying voters.
        The slmllarity between the provisions and wording of
        Section 1 of Article 2742j and Section 1 of Article
        2922l.(5)is so striking as to make It apy;earthat the
        latter was patterned after the former.
                  Unless therefore, the presence of Section 4
        in Article 2922115) which does not appear In Article
        27425, imposes ~ome'restrlctionon the qualificationof
        voters under Article 29221(5), the holding in Opinion
        V-348 should control the znswer to your first question.
                  The purpose of Article 29221(5) is singular.
        It is to provide for the lncorporatloiiby election of a
        rural high school district (classifiedas co!mon under
        Article 2922b, V.C.S.) into an Independentschool dis-
        trict. The boundaries of the successor district result-
        ing from such an election favoring the conversionwill
        be cotermlnouswith those of the former rural high school
        dletrlct. The obligations,bonded and other indebtedness.
        of the original distrfct will become those of the successor
        district to discharge. Section 4 so provides. A school
        district can no more escaue its o~l~i~ationsbr incoroorn-
        tlcn or conversion than it~could by vdissoluti~n.
        Mount Independent School Mat. v. Jackson, 152 S.W.26
                                                           -f   00
        lTex.Clv.App. lgql:-error r%?T-
                  Indeed, Section 6 of Article 2786b, V.C.S. spe-
        clfical3.yprovitles a8 follows:
                 "Xr.each insts.ncewherein a common
            school district 5~s been or shnll hereafter
            be converted into 8n lndeuendent school dis-
            t;c; rdaln each instance wherein a dis-
                   f ny kind or class has been converted
            into a district of s.nykind or class the
            'boundariesof said original district and of
            said successor district being Cotermlnous,
            the inflebtednessof said original district
            shallbe ~leldand.consideredand is hereby
            declared to be the indebtedness of said 8uc-
            cesaor district without the necessity of an
-   .




        Hon. Dennis Zimmerman, page 4   (V-1193)


            election of any character for the assumption
            of such indebtedness,and the duty is hereby
            Imposed on the governing board of such suc-
            cessor district to levy and collect annually
            taxes against all of the property in said dls-
            trlct, sufficient to pay the interest and to
            pay or provl.dea proport&$natepart of the
            principal thereof. . . .    (Emphasisadded.)
                  Thus, Section 4 of Article 29221 5) merely ex-
        presses the law as set forth in Article 27
                                                 4 6b with re-
        spect to the obligations of a school district converted
        without change of boundaries Into another type of school
        district, and makes it c;.earlyapplicable to rural high
        school districts converzteQiatoindependentschool dis-
        tricts. Section 4 states that all bonds outstanding
        against any such rural high school district, as a school
        district shall become the debts of the successor inde-
        mchool         district. The underscoredphrase consti-
        tutes a limitation on the assumption of bonded indebted-
        ness under this law, and prohibits the assumption of
        outstandingbonded Indebtedness of elementary districts
        of the rural high school district which had not previous-
        ly been assumed by the rural high school district, as
        such, under an election as provided in Article 292211
        V.C.S. It appears that Section 4 of Article 29221(51 was
        carefullyand successfullyframed to avoid violatTon of
        Section 3a of Article VI, Constitution of Texas. Clear-
        ly, It is not the purpose of Section 4 or any part of
        Article 29221(F) to authorize therein an election for the
        assumption oT bmded or other indebtedness.
                  Since the avowed Intent of Article 29221(s) is
        not to authorize an election for the assumption OT a debt,
        bonded or otherwise,its sole purpose being to provide an
        election for the conversion of a rural high school Bis-
        trict, It is our opinion that all persons who are quall-
        fied voters under Article 2955, V.C.S., and who are resi-
        dents of the rural high school district are entitled to
        vote in an election held for the purpose set out in Artl-
        cle 2922&(5). See also Art. 2954, V.C.S.
                  With respect to your second submitted question,
        Article 2746b, V.C.S., provides In part as follows:
                  WAll expenses Incurred In connection
             with or incidental to any school district
             election In connectionwith the public school
             within such school district shall be paid out
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        Hon. Dennis Zinrmermann,
                               page 5   (V-1193)


             of the available maintenance fund belonging
             to such district . . .'
        See Att'y Gen. +a. O-623 (1939), O-4919 (1942), O-7187
        (1945)*
                  It may not be amiss to direct the attention of
        those rural high school districts which contemplate con-
        verting or Incorporatinginto independent school districts
        to the case styled Bigfoot Independent School Dist. v.
        Genard, 116 S.W.28 804   ffirmed in 133 Tex. 368 129 S.W.
        -3      (1939). It heidathat where after a co&on school
        district has voted a maintenance tai, the district was re-
        gularly converted into an independent school district, the
        independent school district could not impose the mainte-
        nance tax without having first obtained the approval of the
        property taxpaying voters of the new district, notvithstand-
        ing the independent district embraced the Identical terri-
        tory which formed the common school district. Also see
        Pyote Independent School Diet. v. Dyer, 34 S.W.2d 578 (Tex
        8omm.A~~. 1931) .


                 All persons who are qualified voters and
            who are residents of a rural high school dis-
            trict of the designation and descriptlcm set
            out in Senate Bill 316, Acts 52nd Lsg., R.S.
            1951, ch. 42, p. 69 (Art. 29221(5), V.C.S.),
            are entitled to vote in an eleztlon held there-
            under for the oonverslan of such a rural high
            school district into an Independent school:dls-
                                2955, u'.C.S.;Att'y Gen.

                  Under Article 27&b, V.C.S., the expenses
             of such an election shall be paid out of the
             available maintenance fund belonnlne to the
             district. Attig beni opa. 0-623v(1339j,
             o-4919 (lg42), 0-7187 (1946).
        APPROVED:                         Yours very truly,
        J. C. Davis, Jr.                    PRICE DANIEL
        County Affairs Mvlslon            Attorney General
        Jesse P. Luton, Jr.
        Reviewing Assistant
        Charles D. Mathews
        First Assistant                   Chester E. Ollison
        CEO:mw                                     Assistant
