Honorable           J. C. McEvoy
County        Attorney
Wailer        County
Hempstead,               Texas


Dear      Sir:                                                           Opinion      No.      O-4247
                                                                         Re:      Consolidation              of school        dis-
                                                                                  tricts     and     payment          of attor-
                                                                                  ney’s      fee    for     contest      of con-
                                                                                  solidation         election.


                  We     have       received        your      letter      of recent         date      in which         you prey
sent     the ~follo~ing             information:


                  On May           10. 1941.        an election           was     held     to determine              whether
Macedonia           Common               School     District        No.    One      of Wailer             County      should
consolidate            for     school       purposes         with      Waller       Consolidated              Independent
School       District.             The     Commissioners’                 Court      of Wailer             County      on May        12,
1941,      canvassed             the results         of the .electiou,            declared          that     the election          re-
sulted       in favor          of the consolidation,                and    declared            the districts           consolidated.


                  On May            19, 1941,       the three          individual          trustees         of the Macedonia
district,         individually            and as     district        trustees,         filed       their     notice     of intention
to contest         the election.              The     case      ultimately          went       to trial,        resulting        in a
judgment          finding          that the election            resulted          in a tie      vote       in the Macedonia
district         and, declaring             that the order             of the     Commissioners’                    Court     did not
effect       a consolidation.               .During        these       proceedings             the contestants              were
represented              by an attorney             at law,        and    in payment            of his       fee,     a warrant
for    $250.00           was       issued    against       the funds            of the Macedonia                district       at the
instances         of the trustee             in their      official       capacity.            Such       warrant       has    been
presented           to the County             Superintendent               of Wailer           County        for     approval.


                  In connection             with     the facts         outlined       above,         you     ask     the following
question:


                  “(1)       Is the above           described            warrant         in the amount               of $250.~00,
       and    issued         for    the purpose           of paying            attorney’s          .fe.es for       contesting
       a school          consolidation            election,         a ‘legally        draw.n        voucher’          requiring
       her    to approve             the    same     ?”
Honorable          J. C. McEvoy,                  Page        2, o-4247




                 As we       do not have               a copy         of the warrant                we     interpret            your
question         to be,      “May        the trustees                of the common              school          district          pay
with     school        funds      the attorney’s                fees     under       the facts            as outlined             1”


                 In your         brief      you    cite       the case         of Tate        et al V. Farmer,
Co.     Atty.,     et al..       112 S. W.            (2d)     782.      We     think      that this          case         is very
helpful        in answering              the above            quoted      questian.            The        suit was             insti-
tuted     by Tate         and Riggins,             as     trustees,           and by two             other         individuals,
as taxpaying             voters,         to contest           “that      election        and        the action            of the
court     in consolidating                 the two           districts        in decreeing               the consolida-
tion. *      In holding           that the trustees                  were      authorized             to institute              the
suit    the court         made       the following                  statement:


                  “Since,        by article           2748 of our             Statutes,         the trustees
       of a common               school        district        are      made      a body        politic         and
       corpor~ate,         with     power         to sue        and be         sued,       the two trustees
       who      constituted         a majority               of the board            had      authority            to in-
       stitute     the suit,        even        though         it should        be     said     that others               who
       joined     with      them      as       taxpayers             and citizens          did not have               the
       right     to contest         the election               for     lack    of justiciable               interest
       therein,        separate          from      the       interes.t        of the public;              nor      was
       the~re any        plea      of misjoinder                of them         in the contest.*


                  The     case      of Arrington               et al v. Jones              et al,        191 S. W.             361, ~dis-
cussed         the authority             of school           district         trustees        to hire         an attorney               to
bring     an action          to cancel            a teaching            contract.          After         holding          that the
trustees         had such          authority,           the court           made       the following                statement:


                  “Since         the trustees           have,         as we      think,       the power              to
       employ          an attorney             to represent             them      in legal          proceedings
       respecting           school        affairs,        the authority              would          exist     to pay
       such      attorney         reasonable            compensation                 out of the special
       maintenance               school        fund     in’the        management              and        control          of
       the trustees.              Article         277.2, Vernon’s               Sayles         Statutes            (Article
       2827,      R.    C..S.,     1925)”         See        also     Stewart        v. Newton              Ind.    Sch.
       Dist.,     134 S. W.          (2d)       429.


                  Under        the Tate          case        the trustees            in question             were         authorized
to contest         the election,               and thus         to employ            an attorney.                  Under         the
Arrington          case      they        are    authorized              to pay       him      for    his     services.
Homrable               J. C. McEvoy,                 Page         3, O-4247



Therefore,             it is our         opinion         that the trustees                were       authorized             to exe-
cute      the warrant,             and your             first      question        is answered              accordingly.


                  After         the decision             was       rendered~         in the election           contest            case
but before          judgment            was       entered,          two petitions             were     presented             to the
County          Judge       of Waller           County,           one     signed      by the qualified               voters        of
the Macedonia                 district         and      the other,          by the qualified              voters       of the
Wailer          district,        requesting             an election           to determine             whether         the dis-
tricts     should         be consolidated                   for    school        purposes.            Judgment             in the
contest         case      was     entered          several          days      thereafter,            and the conkstees
gave      notice         of appeal,         which         was      subsequently             abandoned.


                  Thereafter,             on November                    17, 1941,        a petition         addressed             to
the County             Board       of School            Trustees           and     signed       by the requisite                  num-
ber     of qualified            voters         of the Macedonia                  district       was     presented            to the
County          Superintendent              who         is Secretary             of the County              Board,         request-
ing that an election                 be held            in the Macedonia                  district      and     in the Magnolia
Common            School         District        No.      6 of Montgomery                   County,         which       is adjacent
to the Macedonia                  district.             A similar           pet’ition     was     filed      with      the County
B,oard      of School            Trustees            of Montgomery                   County,     which        board         has     ex-
pressed          its willingnes~s               to cooperate              with       the Wailer        County          Board        in the
calling         of an election.                The      County          Judge      of Wailer         County          has    ordered
an election            on the petition                presented            to him.


                  In connection                with     this      fact     situation       you    request            the opinion           of
this     department              on the following                  questions:


                  “(2)        Is the Wailer              County          Board       of School         Trustees            de-
       prived       of jurisdiction               to act          upon     the petition         presented            to it by
       reason       of the prior               filing     of the other             petitions         with     the County
       Judge       of Wailer         County,             Texas       ?


                  “(3)        If said     Wailer          County          Board       of School        Trustees             has
       jurisdiction             to act    upon the petition                   presented          to it, then which
       election        - the Wailer-Macedonia                             consolidation           election,           or    the
       Magnolia-Macedonia                        consolidation               election         - would        control         in
       the event          both    elections             resulted          in favor        of consolidation?”


                  We      are     informed            that the Wailer                 Consolidated            Independent                School
District         is a county            line     district.           At    the outset,          therefore,            it becomes            neces-
sary      for     us to determine                 whether           there        exists     authority          for    the consolidation
of a county            line     i.ndependent             school          di.strict     with     a contiguous               common          school
Ho*orable           J. ‘C. McEvoy,              Page        4, O-4247




district.       The      Macedonia            district        lies        wholly      within        Wailer       County,           and
the Waller           district     lies      partly      in Waller             and     partly        in Harris          County.
However,           Waller       County        has     jurisdiction             over        the administration                    of the
Wailer       district.          If it is determined                 that the districts                 may      be consoli-
dated,      then     the question            is presented                whether       the consent             of the officials
of both Harris              and Wailer          Counties            is necessary               before        an election           can
legally      be ordered.


             Article        2806,      Vernon’s          Annotated             Civil       Statutes,          reads        as    follows:


             “On      the petition           of twenty            (20)    or a majority               of the legally
  qualified          voters      of each        of several               contiguous         common            school        dis-
  tricts,      or     contiguous          independent              school       districts,            praying        for    the
  consolidation             of such         districts        for     school         purposes,           the County
  Judge       shall      issue      an order          for    anelection             to be held          on the         same
  day      in each       such     district.           The     County          Judge        shall      give     notice       of
  the date          of such      elections          by publication              of the order               in some          news-
  paper       published          in the county              for    twenty       (20)       days     prior       to the date
  on which           such     elections         are     ordered,            or by posting             a notice         of such
  elections          in each      of the districts,                 or by both             such     publication            and
  posted       notice.          The    Commissioners’                      Court      shall        at its next         meeting
  canvass           the returns          of such        elections,           and      if the       votes      cast     in each
  and all      districts         show        a majority            in each         district        voting       separately
  in favor          of such      consolidation,              the Court             shall     declare          the school
  districts         consolidated,


             “Common             school       districts           may       in like        manner          be consolidated
  with      contiguous           independent,school                      districts,        and      the district           so cre-
  ated      shall     be known         by the name                of the independent                   school        district       in-
  cluded       therein,         and    the management                     of the new           district        shall       be under
  the existing           board        of trustees           of the’ independent                    school      district,          and
  all     the rights        and privileges              granted            to independent              districts           by the
  laws      of this      State      shall     be given            to the consolidated                   independent              dis-
  trict     created         under      the provisions                of this        law;     provided,          that when
  two      or Morse independent                  districts           are     consolidated,              the County
  Board       of Trustees             shall     designate            the name           by which             the said       dis-
  trict     shall     be known,           and    shall       appoint          a board          of seven        trustees
  for     the said       consolidated            district,           to serve          until      the next       regular
  election          of trustees,         as prescribed                   by General            Law,     at which           time
Honorable              J. C.        McEvoy,          Page       5, O-4247




       the district               shall     elect      a board        of seven          trustees,           whose         powers.
       duties         and     terms         of office         shall       be   in accordance               with        the provi-
        sions      of the General                  Law      governing            independent              districts,          as they
       now       exist       or     may     hereafter           be enacted;             provided           further,          that
       when       it is proposed                  to consolidate               contiguous        county           line       districts,
       the petitions                and election            orders         prescribed           in this          Act     shall        be
       addressed              to and        issued         by the County              Judge     of the County                  having
       jurisdiction                over     the principal             school       of each       district           and the           re-
       sults      of the election                  shall     be canvassed               by the Commi.ssioners’
       Court          of the said           county.


                   ‘The        term         ‘district’        as    used       in this      and the succeeding                        nine
       articles          means            ‘consolidated            common            school     districts’              or    ‘consol-
        idated        independent             school         district.“’


                   In the case              of Stephen          v. Coffee,            133 S, W.           (2)     184, the following
fact     situation           was      before         the court.            The    county        judge        of Shackelford
County          had      ordered           an election          to determine              whether           the Ibex           Independent
School          District           should     consolidate             with       the Albany          Independent                 School           Dis-
trict.          The    Albany         district         lay     entirely         within      Shackelford                County,         and the
Ibex      District           was     a county          line     district,        located        partly          in Shackelford
County          and     par,tly       ln Stephens             County;           The     administrative                  control            of the
Ibex      district           was     assumed’by               Shackelford             County.         The        result        of the elec-
tion,     as     declared,            was     a tie        in the Ibex          district;        thereupon               the appellants
instituted            this    suit,       a statutory           contest         of the election,                claiming             that    if cer-
tain     alleged         illegal          votes     were        excluded,         the election              would        result         in a ma-
jority       vote      in favo,r          of the      consolidation.               No    consent           had been            asked         or     ob-
tained       by the County                  Judge       of Shackelford                County,        or     anyone           else,     from         the
officers          of Stephens              County.


                   Because            of the similarity                   of facts      involved           in the Stephens                   case
with      those        under        conside~ration,                we quote        at length         from         the opinion               of the
court,          speaking           through         Justice         Funderburk,              as follows:


                   “We        are     of the opinion,               however,           that it was              not shown            that     the
election          was        void     on the ground                presented          by the plea               to the jurisdiction.
The      authority            undoubtedly              exists       for    the consolidation                    of two       contiguous
independent               school          districts.         R. S. 1925, Art.                2806,        Vernon’s            Ann.         Civ.
St.,     art.     2806.           Is such      authority           affected        by the fact             that    one       o,f the dis-
tricts      has       territory            lying     in a different              county?         We        think       no good             authority
Honorable             J. C. McEvoy,                 Page        6, O-4247




can     be found        to support               that proposition.                  Shackelford            County         School
authorities            assumed,             and     had for        a long         time      exercised           control        and
jurisdiction            over       the Ibex          Independent              School        District,       and       that,     if ma-
terial,      is as much               as    need        appear.         Jurisdiction             in fact       and     right     of
administration,                will        be presumed.


                  *Said      Art.          2806    in authorizing                 consolidations            of school           dis-
tricts      expressly           names            ‘contiguous            independent              school        districts.’
A proviso           in the article                is ‘that when            it is proposed               to consolidate
contiguous            county        line        districts        the petitions             and election              orders
prescribed             in this      Act         shall    be addressed                to and       issued        by the County’
Judge       of the County               having          jurisdiction           and the results                 of the election
shall      be canvassed                by the Commissioners’                             Court      of the said         county.’
The       proposed          consolidation                out of which              this    contest        arises        did not in-
volve      a proposition               ‘to consolidate                 contiguous            county       line     districts’
as    to which         the law.            as    quoted      above,        provides           that the ‘petitions                and
election         orders        . . .~ shall          be addressed              to and issue.d              by the County
Judge       of the County               having          jurisdiction           over        the principal             school         of
each      district’         etc.       That       proviso         by    its terms            relates       to the consolida-
tion      of county         line      districts          with     county          line     districts.          But    even      if said
proviso          applied,       it is nevertheless                     true       that the County               Judge     who        or-
dered      $he two elections                     involved         in the proposed                consolidation                was        ‘the
County       Judge        of the county                 having      jurisdiction              over      the principal               school
of each      district;’            since         the Ibex         Independent              School       District        had but one
school,      and that located                     in Shackelford               County,         the same          as the principal
school       of the other              district.            The    Commissioners’                      Court     which         declared
the result          of the elections                    so ordered          and held          was       the Commissioners’
Court       of the same               county.


                  “Revised            Statutes,           1925,     art.      2744,        and the provision                  therein
reading:           “Such       distri.ct         shall      not be changed                 or abolished              except      by the
consent          of the commissioners”                          court      of each          county       having        territory
contained          therein’           does       not affect         the question.                For     one     reason,         that
statute      by       its terms            applies        only     to ‘common               county       line      school       dis-
tricts.’         No    such        district         is here        involve,d.             Another        reason         is that
said      provision          of Art.            2744 was          enacted         in 1911, while               even     as late
as the      1925 Revision                   of the statutes,               Art.      2806 did not include                     authority,
as     it was      subsequently                 amended           to do, for             the consolidati.on             of two           inde-
pendent          school      districts.              Such       subsequent               amendment             must     be given            ef-
fect      even     if to do so requires                     us to hold             that it repealed              said     provision
of Art.      2744,        as applied              to the situation                here      presented.*
Honorable             5. C. McEvoy,                  Page        7, O-4247




                    Thus,         in the situation               under         consideration,                authority        exists
for     the consolidation                   of a common                  school        district        with     a contiguous               in-
dependent            school            district.         Art.     2806,        supra.          Therefore,             under       the hold-
ing of Justice              Funderburk,                  such         authority         is not affected              by the fact           that
one of the districts                      has      territory           lying     in a different               county      and     the county
judge         to whom           the petitions             were         presented            and who          ordered        the elections
was      the county              judge      of the county               having         jurisdiction            over       the county             line
district        and within              which       the    other         district          completely           lies.      The      consent
of the officials                 of the other            county,            under      the holding,            was      not required.


                    This        view      is strengthened                   by the recent              case     of Hunt          v. Trimble,
145 S. W.           (2d)        659 (W.         E. Ref.).             In this       case      plaintiffs        sued, to enjoin             the
County         Judge,           County       Attorney            and        County      Commissioners                     of Wheeler
County         from        entering          any       orders          consolidating              a common              county      line
school         district          with     an independent                    school      district         and    to declare          void         two
elections           held        in connection             with        the purported                consolidation,            one     upon
the issue           of consolidation                 and        the    other        upon the assumption                    of/bonded
indebtedness.


                  The       independent                school         district        lay     wholly       within       Wheeler
County,         and that county                    had    jurisdiction               over     the county           line    district
for    administrative                   purposes.               The     petitions           were      ,presented          to the County
Judge         of Wheeler               County,       and        he issued            orders        calling      for     the elections.
No action           was         taken      by the County                Judge,        Commissioners’                    Court,      or      County
Board         of Gray           County.         the adjacent                county,         nor    was     their      consent       to the
consolidation               obtained.              In speaking              of Article            2806,     the court         makes         the
following           statement:


                  * * * + In this                Act      the consent              of no one is required,                     not
       even      the consent               of the county               judge        issuing        the election           orders
       nor     the commissioners’                         court        or    any     other        officials        of his ‘or
       any     other       county.           The       natural          import        of this        provision          is that
       the only        consent            necessary             to the consolidation                      is that       of the
       voters       expressed               in an election               called        for     such       purpose.          The
       will    of the voters               being         the paramount                 concern           of the Legisla-
       ture     the manner                of obtaining            such         expression            is of little         import-
       ance.      8 * 4;”


                  This          case     held      that the consent                  of the county             officials         of the      other
county        was     not necessary.                     We      realize         that       the county         line     district       involved
in the Hunt           case        was      a common               school         district          so that Article            2742b.         Sec-
tion    5, V. A.           C.    S.,     as well         as Article            2806,        supra,        applied.         Even      so,     reading
  Honorable             J. C.       McEvoy,             Page         8, O-4247




  the Hunt          and the Stephens                    case         together,         we    are      of the opinion             that a
  county        line     independent              school         district         may        be consolidated               with       a con-
  tiguous         common            school        district.             Where          the~county          judge        of the county
  having        jurisdiction              over      both        such      districts          upon      proper          petitions         there-
  for    orders         an election              to determine                whether          the schools              shall     consolidate
  for    school         purposes,              the consent             of the officials               of the adjacent              county,         in
  which         part    of the county               line       district        lies,     is not requked;                  and     if the votes
  cast     at such          election           show      a majority              in each        district         voting        separately
  in favor         of such          consotidation,               then the school                    districts      may         legally        be
  declared           consolidated               without          such      consent.


                    Our        view      is further             strengthened              by Article            7806b,         Vernon’s
  Annotated            Civil     Statutes,            passed           in 1937 by the 45th Legklature.                                   Sec-
  tion     1 of Article             2806b        reads          as    follows:


                     “Section            1.    That      all    county         line     independent              school        dis-
         tricts        in this      State       heretofore              attempted            to be organized               and es-
         tablished,          and      now       functioning             as    such,       and recognized                 by either
         State      or county            authorities             as     such     school         districts,         and which
         were       attempted             to be       organized            and established                by a vote            of the
         people        at an election               held        in each        district        affected          for    the pur-

~. f     pose      of consolidating                   an existing             county        line      independent              school
         districtwith            an existing               contiguous            common              school       district,        and
         at which         election            there      was         an affirmative             vote      in each         school
         distri.ct       in favor             of such      consolidation,                are        hereby       validated         in
         all    respects,           as    though         such        district         or districts            had been          duly
         and      legally       established              in the first            instance,            notwithstanding                 the
         fact     that such           election          on the question                 of consolidation                 so held         in
         such      existing           independent               school        district         or    districts         may      have
         been      ordered,           notices           thereof         given,        and the results              thereof         de-
         clared        by a Board               of Trustees              of such         existing        county         line     inde-
         pendent         school          district        or     districts         instead           of by the Commission-
         ers*      Court       as     provided           by Article             2806        of the Revised              Civil      Stat-
         utes      of Texas,             of 1925.”             (Emphasis           supplied)


                    The      language            used         in this        section        indicates           that    such     consolida-
  tion elections               should          follow      the provisions                   of Article          2806,     and that            there
  was     no authority              to organize                districts         by an election                 ordered         by the county
  board.          The     districts            falling         within        the latter        named          class      were         validated
  b$~ the statute.
Honorable                 J. C.     McEvoy,           Page~9,       O-4247




               We     are      not unmindful                that apparently               inconsistent             views       have
been       taken          by some        of our        appellate           courts,        sol that the position                 we
have       taken          is not entirely             free     from        doubt.         See    Newsome             v. Elliott,
139 S. W.             (2d)     221;      Benton           v. Long,         128 S. W.            (2d)    446;     County        School
Trustees             of Runne1.s            County          v. State,       95 S. W.         (2d)       1001.      However,
the Hunt             case     i.s the most            recent        one on the subject;                   the Hu.nt case
cites      with       approval           the Stephens              case,     and      the Supreme                Court        of Texas
refused          a writ        of error           i.n the Hunt           case.       These        factors          impel       us to
the conclusion                 which         we have         reached         and which             is expressed               abdve.


               The     next        question        which       confronts           us is whether                the filing       of
the petition              with      the county          judge       after     the decision               was      rendered         but
before          the entry           of the judgment                and     abandonment                 of the appeal           was        in
reality         a nullity          because          of the fact          that the district                court      still     retained
jurisdiction                over     the subject            matter,         and,     as a nullity,              could    not be sub-
sequently             revived.          It has        been     held      by this         department             that no particu-
lar     time        must       elapse        or    intervene          between            the filing        of petitions          to.con-
solidate         school           districts.          Opinion         No.    O-2266.             Did     the jurisdiction                 of
the district              court      in the election               contest         proceedings              attach       to more
than      the particular                election          in contest?              Did    such         jurisdiction           attach
to the filing              of other       petitions           or   the holding            of subsequent               elections           7
We      think not..            True,      all     the matters             relating         to the contested                  election
itself     were           within      the jurisdiction                of the court,             but wholly           independent
matters          could        not be said             to be covered              by such          jurisdictbon.               There-
fore,     we        are     of the opinion             that petitions              could        validly       be presented                to
the county            judge         so that his           jurisdiction           to order          consolidation               elections
would          be invoked,            and     in this        particular          case      to empower               the county
judge      upon        the filing         with        him     of a proper            peti.tion         to order         an election
if the contested                   el.ection       were       not upheld.


               The    next        question         that we         must     answer          is whether             .the petitions
presented             to the county               judge      must      affirmatively                   show     the location              of
the districts,               that they          are    contiguous,            whether            one is a county               line       dis-
trict,     and        if county         line,      what      county        has     jurisdiction             over      its administra-
tion.      You        willnotice            that the only           express          requirement                 in either       Article
2806 or          in Section            5b of Art.  2742b               is that the county judge   shall. issue an or-
der      for    an election             “on, the petition              of twenty  (20) or a majority    ofthe legally
qualified            voters.        . . .”        Of course,          if the school              district        is in another
county,         the county             judge       would       have      no power            to        callan      election          in
such      other        county.          Yet,       if the district           is in fact           in the county              or partially
Honorable         J. C. McEvoy,                 Page          l,O, O-4247




in the county         having           jurisdiction            over        its admi.nistration,                     would        the
fact   that the petition               does      not affirmatively                        show    the same              deprive
the county        judge      of his       authority            to order              or    the voters             of their       right
to have     a consolidation                   election?             We    think           not.    Chief       Justice          Gaines
speaking      for    the Supreme                 Court         of Texas              in the case            of Scarborough
et al v. Eubank,             93 Tex.           106, made             the following                statement:


             y * + * The              object     of a popular                  election          is that the will
  of the greater             number            of the voters              may         prevail.             This     greater
  number       may         be a plurality               or    a majority                  in a greater            or    less     de-
  gree,     as the law            may         provide         for    the particular                  case.         Hence        the
  important          matter           in every        election            is that the will                 of the voters
  should      be fairly          expressed,             correctly               declared,            and     legally        en-
  forced.         Compared              to this,        the question                 as    to the manner                and time
  of orderi.ng            the election           is of trivial             m0men.t.               Ordinarily,             when
  elections         are     to be held           which         recur       at stated             periods           (such       as
  those     for the electton                  of officers            to administer                the government),
  it is made         the duty           of certain            officials             to call      the election            without
  action     on part         of any       person.             But     in all         elections             of a local          option
  character          (such       as     for    prohibiting               the    sale        of intoxicating              liquors,
  to prevent         the     running           at large         of livestock,                 the removal               of county
  seats,     and the incorporation                           of totins         and cities)            it is essential,
  in order        to gtve        effect        to the laws            which           provide         for     such       elections,
  that     some      officer,         board,       or     tribunal             should         be empowered                 to order
  the election,            and that           it should        be mad~e a duty                    so to order              it upon
  the occurrence                 of certain           conditions,              --     usually         the presentation
  of a petition,           signed        by a certain                number               of legal     voters,          freeholders,
  or taxpayers,             according            to the nature                  of the matter                upon which             the
  vote     is to be taken              * * *       The        main,        if not sole,              purpose           of requiring
  the petition            in favor       of a change                before           ordering         an election              is to
  save      the public           from     the expense,                loss          of time,         and excitement                 in-
  cident     to such         an’election,             unless          there          is a reasonable                   probability
  that the required                majority            of electors              will       vote      for    the change.”


             In the situation                 under      consideration,                     if the petitions             were         signed    by
the requisite         number            of qualified             voters,             then we         are     of the opinion               that the
county      judge    would         be authorized                 to call            the election..            We       do not feel         justi-
fied   to read       something            into the statute which                            is not there,    especially                    in view
of the following            facts:        the Macedonia    district                           is wholly   within Walkr                      County;
Walter      County         has    jurisdiction                over       the administration                       of the Wailer            district;
Honorable              J; C.     McEvoy,             Page        ~11, O-4247




the petitions             we;e           signed      by the required                 number        of legally          quali-
fied    voters;          and the voters                in each           district      will    be notified         by publica-
tion    or by posting                 notice        of the election,                and will     be able         to express
their     will     at the election.


                You      ask     whether            the respective                county      boards       of school            trus-
tees     are     prevented               from       acting        on the petitions             presented           to them           by
reason         of the prior               filing     of the other            petitions         with     the county          judge.
We      quote     from          our      Opinion          No.     O-778      as follows:


                “Our         Supreme          Court         in State,        ex rel       George         vs.    Baker,
  40 S. W.             (2d)    41, held:


                “‘To      our       minds,          this    suit    presents           but one question:                 Did
  the County              Board           of Trustees             have      the power          to defeat         the right
  of the people                to, by vote,            determine             the question             as to whether
  the district                should       be incorporated                  by re-districting                  the territory
  involved             after     the election               has    been      duly      and    legally      ordered          and
  advertised,                 and while            such     election         was      still   pending?            We     think
  that to state                the question               is to give        a negative          answer          thereto.


                “‘It    is our           opinion,      that even            if it be conceded              that the orders
  of the County                 Board         with     reference             to the territory             of Distric,t           #16
  would          have        been        in all     respects         legal        in the absence           of the pending
  election,            still    the right            of the people            to vote         on incorporation,                 having
  been         first     lawfully           invoked,            would     not be interfered               with     or    defeated
  by the County                 Board           pending          the holding          of the election,             and     the
  declaration                 of its results.’


                “We      recognize                that the foreg,oing                case     is not specifi,cally                in
  point,         but the situations                   are       somewhat            analogous.           When       an elec-
  tion has             been     called        and the right               of the people          to vote         upon the
  question             of whether            two      districts           shall     consolidate,          has      attached,
  their        right      to freely           express            their     will     should,     not be interfered
  with      or embarrassed                         by calling        a second           election        to determine
  whether              one     of these           districts        should         consolidate          with      a third.
  We      find     no authority                   in the statutes            for     holding       both    elections            at
   the same             time        as    suggested             in your      letter.”


                 You     are,       therefore,             advised         that the county              board      of school              trus-
tees     should         not call           an election            based       on the Macedonia-Magnolia                              petition
Ho*orable          J. C.    McEvoy,      Page     12, o-4247

                                                                                                             .f


  until     the electorate          of the Wailer      and Macedonia            districts    ,have     had
an opportunity           to vote      upon   the question       whether       the Weller     and Mace-
donia     districts        shall   consolidate.       If the Wailer-Macedonia               election
carries      and      the districts      are    consolidated,      then the county          boards
would      have    no authority        to call    an election      based      on the Macedonia-Mag-
nolia     petitions.


                                                            Very      truly    yours


                                                        ATT0          EY   GENERAL          OF   TEXAS
                                                                 77




FIRST      ASSISTANT
ATTORNEY              GENERAL


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