.   _.




                       HE   ATT          NEY       GENERAL
                                           XAS




                                  March 9,, 1970


         Hon. J. W. Edgar                      Opinion No.M-593
         Commissioner of Education
         Texas Education Agency                Re: Whether consolidation
         Austin, Texas                             election was properly called
                                                   pursuant to Sections 19.231
                                                   through 19.234, Texas Educa-
                                                   tion Code, and related
                                                   questions.
         Dear Dr. Edgar:

              Hy recent letter you have requested an opinion from this
         office. We quote from your letter as follows:

                   "Petitions requesting that a consolidation
              election be called to determine whether Pond Springs
              Common School District and Round Rock Independent
              School District be consolidated were presented to the
              County Judge of Williamson County in early November,
              1969. The order calling for the election in each
              district was issued by such Williamson County Judge,
              and the Commissioners Court of Williamson County can-
              vassed the returns and declared the result of the
              election(s); viz., that each of the districts voted for
              consolidation and the districts are consolidated.  The
              30-day election contest period has expired without any
              questions being raised as, to the validity of the
              proceedings.

                    "Both districts at the time involved were county-
              line districts, both having territory extending into
              Williamson and Travis counties, and Williamson County
              had the necessary jurisdiction to accept the petitions
              and call the elections involved.




                                -2824-
Dr. J. W. Edgar, page 2 (M-593)


          "The Round Rock Independent School District
     proposes to call and hold a school bond election within
     the immediate future, thus it becomes imperative that
     the district shall know its proper boundaries so that
     proper residents, if otherwise qualified, may be
     permitted to vote. The Board of Trustees of this dis-
     trict has requested that an opinion be obtained from
     the Office of Attorney General on the following questions:

          I'
           1.    Under applicable provisions of the Texas
                 Education Code, was the consolidation
                 election properly called?

          "2 .   May the validity of the election now be
                 questioned?"

     Subsequent to your opinion request, we have received copies
of orders of the Williamson County School Board of 1949 showing
the following facts surrounding the acquisition of jurisdiction
by Williamson County which are as follows:  In 1949 the Oak
Grove Common School District of Travis County was consolidated
with Pond Springs Common School District of Williamson County
and Williamson County acquired supervision and control of the
new Pond Springs District. Also, in 1949 part of the Merrill-
town Common School District of Travis County was consolidated
with the Round Rock Independent School District of Williamson
County, and Williamson County acquired supervision and control
of the new Round Rock district.

     This opinion does not pass upon the validity of these prior
consolidations, but in the event there is some question about the
validity, it appears Article 2815g-40, Vernon's Civil Statutes,
would validate the consolidations and you are referred to that
article.

     The applicable provisions of the Texas Education Code for
consolidation of a county line independent school district
(Round Rock) and a county line common school district (Pond Springs)
are found in Sections 19.231 through 19.234 of Chapter 19 of the
Code. Sections 19.231 through 19.234 are quoted, in part, as follows:




                         -282%
Dr. J. W. Edgar, page 3    (M-593)


          "19.231. Districts Which May Consolidate
          "(a) Subject to the limitation of Subchapter K of
     this chapter, any of the following groups of school
     districts may, by the procedure described in this sub-
     chapter, consolidate into a single school district:
          "1. . ...
          “2. . . . .
           “3. One or more independent or county-line inde-
     pendent school districts and one or more common or
     county-line common school districts constituting as a
     whole one continuous territory:
           “4 :. . . . .
           “5. . . . .
          Y(b) The combined districts may all be located
     wholly within a single county, or they may be located
     in adjoining counties: or the combined districts may
     be composed of one or more districts located wholly
     within one or more counties and one or more county
     line districts."

          "19.232. Petition
          "A petition signed by 20 or a majority of the
     legally qualified voters of each of the several contiguous
     school districts proposed to be consolidated and praying
     for an election to authorize the consolidation shall be
     presented to the county judge of the county in which the
     school districts are located, or if one or more districts
     to~be consolidated is a county line district,,to the county
     judqe of the,respective countv or counties havinq juris-
     diction thereof." (Emphasis added.)

          "19.233. Election Order: Notice
          "Upon the receipt of a petition fulfilling the
     qualifications of Section 19.232 of this code, each
     county shall:

          "(1) Issue an order for an election . .... and
          "(2) Give notice for the date and purpose of the
     election ...I' (Emphasis added.)




                          -2826-
Dr. J. W. Edgar, page 4(M-593)


     It is necessary in answering your first question to deal
with two problems:   (1) Whether the petitions were presented
to the proper party or parties, and (2) Whether the proper
party or parties ordered the election.

     As emphasized in the underlined language of Section
19.232(b), the petition for calling the election must be
presented to the county judge or judges having jqrisdiction of
the school districts in question.

    "Jurisdiction" apparently relates back to the jurisdiction
or control established at the time the school district or
districts were initially created.  In the case of a county line
school district, Section 19.101 of the Education Code (originally
Article 2743, V.C.S.) provides:

          "(d) The county governing board of each county
     having territory included in the proposed district
     shall pass an order which shall:
           "1. ....
           "2. ....
           "3. ....
           "4. . ...
           "5. .. ..
           "6 . Desiqnate and name one of the counties
     havino territory included in the description of
     the proposed.district which shall manage and have
     control of the publicschools   of the county line
     district for all school purposes.

         "(e) The proposed district shall be deemed
     created and established when the order described in
     Subsection (d) of this section has been passed by
     the county governing board of each county having
     territory included therein." (Emphasis added.)

     Also, we believe it pertinent to note Section 19.104 of
Chapter 19 of the Education Code (originally Article 2745a,
V.C.S.P.  Section 19.104 provides:




                       -2827-
Dr. J. W. Edgar, page 5 (M-593)


          "~11 persons who are otherwise qualified to
     vote in an election involving a school district
     question and who reside in a county line school
     district shall be entitled to vote at any such
     election involving the school district reqardless
     of whether such voters reside in the coun~tv havinq
     manasement and control of the county line district.“
     (Emphasis added.)

     It seems clear from an analysis of the above quoted Article
that when a county line common school district (Pond Springs)
is created the various county officials agree by entering VkiFious
orders that a certain county will have “jurisdiction“ is what is
referred to in Section 19.232 quoted above.

     Therefore, under the facts presented, the petition of the
qualified voters of the Pond Springs distriot was properly
presented to the County Judge of Williamson County, he having
the requisite jurisdiction.

     Insofar as the Round Rock county line independent district
is concerned, the facts show that in 1949 this school district
became a county line school district when a common school district
in Travis County was consolidated with an independent district
in Williamson County. The consolidation order conferred
supervision and control of the sohool distr'ict upon Williamson
County.

     Therefore, under these facts, it seems clear that the
Williamson County Judge had the necessary "jurisdiction" under
Section 19.232 to accept the petition from the qualified voters
of the Round Rock County Line Independent School District.

     The second problem to be resolved is whether the proper ,party
or parties ordered the election pursuant to Section 19.233 of
the'Educat,ion ,Code. Section 19.233 is quot,ed above on page 3~.
The pertinent language of Section 19.233 states:

          "Upon the receipt of a petition fulfilling the
     qualifications of Section 19.232 of this Code, each
     county shall ...'




                      -2828-
Dr. J. W. Edgar, page 6 (M-593)


     Although Section 19.233 speaks in terms of the county
ordering the election, it remains to be determined whether the
Williamson County Judge or the Williamson Commissioners Court
are authorized to order the election.

     While a county generally speaks and acts through its
Commissioners Court (15 Tex. Jur.2d. Section 36, pages 264-265),
it is nevertheless our opinion that the Legislature intended, in
using the above quoted language, to require that the County
Judge order the election.  In construing Sections 19.233 and
19.232, we look to their original enactment, Article 2806,
Vernon's Civil Statutes, under the provisions of which the
County Judqe was specifically required to order the election
upon presentation of a proper petition.

     Also, we look to Section 1.03 of the Education Code, which
makes it clear that it was the intent of the Legislature to
codify existing law. Thus, where there is a question of
statutory construction, we must consider the law existing when
the code was enacted as applicable rather than to adopt a
construction not in harmony therewith.

     It is further observed, in support of our conclusion, that
the ordering of the election is a ministerial duty not requiring
the exercise of any discretion of the Commissioners Court, and
the petition requesting the election is also required to be
presented to the County Judge in the first instance.

     It is therefore the opinion of this office that the first
question should be answered in the affirmative.  The petition was
presented to the proper official, the County Judge of Williamson
County, and he was the proper official to order the election.

     In light of our answer to your first question, an answer
to your second question becomes unnecessary.




                       -2829-
Dr. J. W. Edgar, page 7 (M-593)


                             SUMMARY

               Under the facts presented, the Williamson
          County Judge was the proper official to receive
          an election petition (Section 19.232, Texas
          Education Code): he was also the proper official
          to order the election (Section 19.233, Texas
          Education Code) to consolidate the Round Rock
          County Line Independent School District and the
          Pond Springs Common County Line School District.

                                       YOU 4   very truly,




                                                  General of Texas
Prepared by James McCoy
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
Bill Allen, Acting Co-Chairman

Pat Bailey
Jack Goodman
Vince Taylor
Alan Minter

MEADE F. GRIFFIN
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOLA WHITE
First Assistant




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